Yuanda Vic Pty Ltd v Facade Designs International Pty Ltd [2020] VSCA 269

1 On 16 September 2020, a judge of the Court entered judgment in favour of Façade Designs International Pty Ltd ('the respondent') against Yuanda Vic Pty Ltd ('the applicant') in the sum of $3,357,664.67 plus interest in the sum of $296,210.42 ('Judgment Debt') pursuant to s 12(2) of the Building and Construction Industry Security of Payment Act 2002 ('the Act') ('the Order'). On 15 September 2020, the judge delivered reasons for judgment.[1] There was a stay of the Order until 6:00 pm on 9 October 2020.

2 The applicant seeks leave to appeal from the judgment and, pending the hearing and determination of such application, seeks a stay of the Order on the grounds of special and exceptional circumstances. The applicant contends that it has an arguable case and that absent a stay, if successful, the appeal will be rendered nugatory because of the respondent's precarious financial position.

3 The applicant relies on the affidavits of Che Oakley affirmed 29 September 2020 ('the Oakley Affidavit') and Zhijun Liu sworn 29 September 2020 ('the Liu Affidavit'). As mentioned later in these reasons, it also sought to rely on an affidavit of its solicitor. The respondent relies on the affidavit of Anthony Callipari, sworn 5 October 2020 ('the Callipari Affidavit').

4 The stay application was heard on 9 October 2020. This Court granted the stay on conditions and indicated that reasons would follow. These are the reasons.

5 By a supply and installation agreement dated 13 April 2018 ('the Contract'), the respondent agreed to carry out the installation of façade elements manufactured and supplied by the applicant as part of the construction of commercial and residential towers at 447 Collins Street, Melbourne, known as 'the Arch on Collins' ('the Project') for the price of $14.5 million.

6 From September 2018 until the Contract was terminated in November 2019, the respondent performed works under the Contract.

7 On 30 September 2019, the respondent provided a payment claim to the applicant under s 14 of the Act for $4,584,820.68 (inclusive of GST) ('the Payment Claim').

8 On 2 October 2019, the applicant paid the respondent the amount of $1,115,455 (inclusive of GST), reducing the amount claimed to $3,469,365.58.

9 The applicant failed to provide a payment schedule to the respondent within 10 business days of receiving the Payment Claim, as contemplated by s 15 of the Act.

10 Accordingly, pursuant to s 15(4) of the Act, the applicant became liable to pay the respondent the amount claimed on 30 October 2019, being the due date for the progress payments to which the Payment Claim related.

11 The applicant failed to pay the amount claimed and the respondent, after conceding some reductions, sought judgment pursuant to s 16(2)(a) of the Act.

(a) the Payment Claim was invalid because it did not sufficiently identify the construction work or related goods and services to which the progress payments related within the meaning of s 14(2)(c) of the Act and as a consequence it was not liable to pay the amount under s 15(4) of the Act ('the Adequacy of the Payment Claim'); and

(b) the Payment Claim included excluded amounts within the meaning of s 14(3)(b) and pursuant to s 16(4)(a)(ii) of the Act the Court could not give judgment unless it was satisfied that the amount claimed did not include any excluded amount ('the Excluded Amounts Claim').

13 The judge rejected both contentions and entered judgment accordingly. In a final observation the judge said:

As a result of the approach taken to the issues in this proceeding, its determination resulted in:

(a) extensive discovery;

(b) detailed schedules of issues;

(c) the filing of fifteen affidavits;

(d) a court book consisting of 3,260 pages;

(e) cross-examination of witnesses over five days;

(f) written submissions in excess of 350 pages;

(g) a book of authorities in excess of 1,500 pages;

(h) a total of eight hearing days; and

(i) a delay of nearly nine months from filing to completion of the hearing.

Such delays and the substantial associated costs are an anathema to the scheme of the Act. If permitted to continue it will have the effect of discouraging contractors from exercising their rights to apply for judgment for fear of being caught in the Court's procedures. The Court should strive to adopt appropriate procedures to allow contractors to exercise their rights in a summary, expedient and cost-effective manner.[2]

14 The proposed grounds of appeal are set out in an exhibit to the Liu Affidavit. The proposed grounds relate only to the Excluded Amounts Claim. An application for leave to appeal containing the same proposed grounds was filed, together with a written case, on 8 October 2020.

15 Section 3 sets out the object of the Act as follows:

(1) The object of this Act is to ensure that any person who undertakes to carry out construction work or who undertakes to supply related goods and services under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.

(2) The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to that payment in accordance with this Act.

(3) The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves -

(a) the making of a payment claim by the person claiming payment; and

(b) the provision of a payment schedule by the person by whom the payment is payable; and

(c) the referral of any disputed claim to an adjudicator for determination; and

(d) the payment of the amount of the progress payment determined by the adjudicator; and

(e) the recovery of the progress payment in the event of a failure to pay.

(4) It is intended that this Act does not limit -

(a) any other entitlement that a claimant may have under a construction contract; or

(b) any other remedy that a claimant may have for recovering that other entitlement.

16 In relation to the nature of the hearing the judge said:

An application for judgment under s 16 of the Act is intended to be summary in nature. However that does not mean that the principles relevant to applications for summary judgment under s 61 of the Civil Procedure Act 2010 (Vic) or ord 22 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) apply. Before entering judgment the Court does not need to be satisfied that the respondent has no real prospect of success. Rather, the Court should finally determine on the evidence, whether it is satisfied of the matters referred to in s 16(4)(a) of the Act according to the principles referred to in paragraphs 40 to 41 and 54 to 59 below. Any enquiry into whether the respondent has arguable cross-claims or defences would be contrary to s 16(4)(b).[3]

17 In relation to the Adequacy of the Payment Claim, the judge summarised the relevant principles of statutory construction, which were not in dispute, and held by reference to the authorities and the detailed provisions of the Act, that evidence of surrounding circumstances was not admissible in determining the validity of a payment claim.[4] There is no challenge to this finding.

18 The judge then dealt with the position where a respondent is unable to identify the work to which the claim related. The remedy in such a case is to resort to the adjudication process set out in the Act. A respondent would be entitled to serve a payment schedule refusing to make payment on the basis that it cannot identify the work. The dispute would then be determined by an adjudicator.[5]

19 Finally, the judge concluded that if a part of the payment claim fails to identify the construction work, the entire claim is not invalid and the payment claim will be adjusted accordingly.[6]

20 In relation to the Excluded Amounts Claim, the judge held that, in determining whether any part of a claim included an excluded amount, it was sufficient to examine the face of the payment claim, including any supporting documents. It was not a requirement to conduct a full investigation of the facts and circumstances. Whatever a court might determine after a full investigation of the facts and circumstances is not relevant for the purposes of determining whether a claim is, on its face, a claim for an excluded amount.[7]

21 Finally, the judge concluded that the inclusion of an excluded amount in a payment claim does not prevent the Court from giving judgment for the appropriate amount under s 16 of the Act.[8]

1. The trial judge erred in finding that the question of whether a claim amount includes an excluded amount for the purpose of section 16(4)(a)(ii) of the Act should be determined, not as an objective fact, but on the face of payment claim. In so erring, the Trial Judge:

(a) failed to give effect to the unambiguous terms of the Act;

(b) instead construed section 16(4)(a)(ii) in way such as deprive it of its intended effect and contrary to the legislative intent; and

(c) failed to have regard to the objective approach taken in John Beever v Roads Corporation [2018] VSC 635.

1. The trial judge erred in finding that the 'claimed amount' referred to in section 16(4)(a)(ii) means, not the amount claimed in the payment claim, but the amount claimed at the time entry of judgment is sought. In doing so, the trial judge:

(a) failed to pay any regard to sections 4 and 14 of the Act, whereby the 'claimed amount' is defined to mean the amount claimed in the payment claim; and

(b) failed to distinguished between the opportunity for severance in circumstances where a payment claim is the subject of an adjudication, and the separate pathway provided for by section 16(4)(a)(ii) of the Act.

1. The trial judge erred in failing to have any regard to the definition of 'variation' in section 4 of the Act as a change in the scope of the construction work to be carried out or the related goods and services to be supplied, under the contract. Had his Honour done so, the Court would have been bound to find:

(a) that those elements of the payment claim that were not for any change in the scope of the construction work, but were for compensation for loss of time or damage suffered by reason of site shutdowns, were not claims for variation within the meaning of Act (regardless of whether they are claims for variation within the meaning of the contract);

(b) accordingly that such claims were claims for excluded amounts, both as a matter of objective fact and as appears from the face of the payment claim.

1. In relation to those parts of the payment claim based upon the alleged settlement agreement, the trial judge erred in finding that it was not relevant that evidence had been given at the trial that the settlement agreement was invalid or illegitimate. Had his Honour taken the evidence into account, he would have been bound to conclude:

(a) that the alleged settlement agreement was an invalidity;

(b) a reasonable practitioner in the position of Yuanda with the background knowledge of past dealings between the parties would not have understood the payment claim to be bona fide.

1. Further, by failing to take that evidence into account, the trial judge failed to consider whether that evidence was such as to vitiate the plaintiff's claim or to use the Act to facilitate a fraud.

23 As the authorities hereinafter referred to demonstrate, an applicant for a stay must demonstrate the existence of special or exceptional circumstances. Special circumstances may exist where there is a real risk that an appeal, if successful, would be rendered nugatory in the absence of the grant of a stay. In such a case, the Court will be required to balance the prospect that an appeal may be rendered nugatory in the absence of a stay, against the principle that the successful party in the proceeding should be entitled to the fruits of the judgment. Further, a stay should not be granted unless the applicant has demonstrated at least an arguable ground of appeal.

24 In Maher v Commonwealth Bank of Australia, this Court said:

The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.

Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.

In Cellante and Ors v G Kallis Industries Pty Ltd ('Cellante'), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq) that:

...where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.

Young CJ concluded that an applicant for a stay under r 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.

The court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.

In Scarborough's v Lew's Junction Stores Pty Ltd (approved in Cellante), Adam J recognised that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.

In Cellante, Young CJ stated that special circumstances would 'exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed'.

An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.

The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.[9]

25 In Loftus v Australia and New Zealand Banking Group Ltd, this Court said:

In order to justify the grant of a stay, an applicant should also demonstrate that there is at least an arguable ground of appeal. That said, ordinarily, the court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied upon in the application for leave to appeal. In such a case, unless there is no arguable ground of appeal, or the appeal is not bona fide, the court ordinarily will focus on matters relevant to the enforcement of the judgment, rather than matters that are relevant to its validity or correctness.[10]

26 To similar effect, in ASEA 1 Pty Ltd v Rudyard Pty Ltd, this Court said:

Ordinarily, an application for a stay is made at an early stage in the appeal process. For that reason, the Court does not embark on a detailed assessment of the prospects of the proposed grounds of appeal. Rather, the Court undertakes a preliminary assessment in order to determine whether the applicant has at least an arguable proposed ground of appeal.[11]

27 In support of the stay application, the applicant relies on the Liu Affidavit and the Oakley Affidavit. Mr Liu is the managing director of the applicant. Mr Oakley is the operation manager of Colabe Façade Pty Ltd ('Colabe Façade') and a former employee of the respondent.

28 The critical allegations made in the Liu Affidavit are as follows:

The respondent walked off the Project site on 15 November 2019;

(a) Mr Liu has been informed by his tender manager, Tao Chen, that he is unaware of any other substantial work that the respondent has been awarded (other than the Project the subject of this proceeding) since March 2020 and believes that it does not presently have any other live projects;

(b) based on his dealings with Mr Callipari, Mr Liu believes that the respondent did not have any other substantial projects lined up as at November 2019, does not have any significant assets and is not carrying on business;

(c) Mr Liu believes that 'there is a real financial risk that - any money paid to [the respondent] will not be able to be recovered by [the applicant]'; and

(d) the applicant is prepared to give security or pay into Court the Judgment Debt if required.

29 The critical allegations made in the Oakley Affidavit are as follows:

(a) Mr Oakley is informed by a number of the respondent's employees that the respondent has 'dismantled the complete workforces on 447 Collins Street';

(b) Mr Oakley was told by a number of ex-employees of the respondent that there was no more work, and that the respondent has not paid their annual leave or sick leave entitlements;

(c) Mr Oakley was informed by Rith Nguon, the applicant's project manager for the Project, that the respondent has also dismantled its workforce on another project at 80 Collins Street at around the same time it walked off the Project site in November 2019;

(d) during his employment with the respondent, Mr Oakley knew that the respondent did not have any projects other than the 447 Collins Street and 80 Collins Street projects;

(e) Mr Oakley's present employer, Colab Façade, hired and continued to pay the respondent's unpaid employees;

(f) Mr Oakley calculated that as at 18 November 2019, the total amount of unpaid annual and sick leave entitlements owed by the respondent was $349,847.62, which amount was subsequently paid by Colab Façade and which it is seeking to recover from the respondent;

(g) the respondent does not have a permanent office and its registered office is a residential property; and

(h) there has been a severe decline in the construction industry in 2020, thereby affecting the prospect of further work.

30 The respondent opposes any stay and contends that there are no special or exceptional circumstances and that any appeal will not be rendered nugatory. In his affidavit, Mr Callipari, the managing director of the respondent, deals with each allegation made in the Liu Affidavit and the Oakley Affidavit and deposes that the respondent has assets exceeding the amount of the Judgment Debt.

31 Mr Callipari deposes to the following matters, both generally and in response to the allegations deposed to by Mr Liu and Mr Oakley:

(a) the applicant failed to provide any payment schedule in response to the Payment Claim and defended this proceeding at substantial cost, expense and delay to the respondent;

(b) the respondent did not walk off the Project site but was excluded from the site by the applicant which had terminated the subcontract on 14 November 2019, a day after the respondent had suspended work due to non-payment of the Payment Claim;

(c) on or about 15 November 2019, Multiplex agreed with the respondent to take over the employee entitlements, and following termination of the Contract, the respondent's roughly 55 employees were transferred to the new installation contractor, Colab Façade. Neither Multiplex nor Colab Façade have approached the respondent for payment for the employee entitlements;

(d) the respondent has assets exceeding the Judgment Debt, including cash, equipment and properties;

(e) the respondent has not ceased trading but has continued to trade throughout the litigation. In particular, the respondent has:

• issued tenders and performed works for Built Pty Ltd ('Built)';
• secured two upcoming fire re-cladding projects in Melbourne valued at $12 million and $1.5 million respectively;
• received Built's confirmation that it is a preferred façade and cladding installer to be engaged on future re-cladding projects. Mr Callipari deposes that Built is 'a major Tier 2 construction firm, and the pipeline of re-cladding work is significant, particularly given the substantial Victorian government investment in the re-cladding projects';
• ongoing work with Fairlite Glass Walls on the 'West Side Place' project with work having recommenced on 28 September 2020 following the lifting of Stage 4 Covid-19 restrictions;

(f) although the respondent has scaled down the number of its employees since November 2019 in response to the termination of the Contract and the impact of Covid-19, it will be in a position to rapidly scale up the number of employees to work on large projects it expects to be awarded following the further lifting of Covid-19 restrictions; and

(g) in the four years prior to November 2019, it did work exclusively for the applicant. The applicant is the respondent's sole significant trade debtor. In addition to the Judgment Debt, the respondent has a separate claim against the applicant of about $3.5m to $4m which it intends to pursue. A significant part of the amount owing by the applicant relates to wages.

32 The gravamen of the applicant's case is that the respondent is in a precarious financial position. It has ceased trading, has no assets, has no work and has significant liabilities comprising unpaid employee entitlements. In these circumstances, it is submitted that special and exceptional circumstances exist, namely, a real risk that the appeal will be rendered nugatory, if successful, because there is no ability on the part of the respondent to repay the Judgment Debt.

33 The evidence of the respondent, by its managing director, suggests a rather different financial position. The respondent has not ceased trading (other than a temporary cessation due to Covid-19), has assets including cash and property interests, has existing work and potential for further work, and does not have significant unpaid employee entitlements.

34 The applicant contends that this evidence is general, vague and unsupported in numerous respects:

(a) there are no financial statements or management accounts;

(b) the unpaid employee entitlements were not paid when due and represent a significant potential liability;[12]

(c) there are no bank statements disclosing any credit balances;

(d) there are no valuations of the respondent's interests in the properties;[13]

(e) there are no valuations of any of the other assets;

(f) the current work in the pipeline was not work in hand but an expectation;[14]

(g) the statement of accounts payable and accounts receivable, which reflect minimal activity, are not consistent with and do not evidence any ongoing business;

(h) the project with Fairlite Glass Walls is a small project; and

(i) the overall picture is of a moribund company.

35 There is force in this contention. The evidence of the respondent's financial position and its ongoing operations is general, vague and not supported to the extent required to displace the evidence of the applicant, notwithstanding that the latter evidence is itself general and substantially hearsay. To the contrary, for the reasons advanced by the applicant, the respondent's evidence tended to raise doubts about its viability as a going concern. Assessing the evidence as best we can, we consider that there is a real risk, beyond the usual commercial risk, that the respondent will be unable to restore the applicant substantially to its former position if the applicant is successful, and that the appeal will be rendered nugatory to that extent. The cases show that this constitutes special or exceptional circumstances that may justify a stay pending appeal.

36 However, accepting that the Court had a broad discretion, and should take into account all of the circumstances of the case, each party made further submissions going beyond the financial position of the respondent.

37 The respondent referred to several cases that support the view that, in relation to claims under the summary procedure contemplated by the Act, more than a real risk may need to be established to satisfy the requirement of special or exceptional circumstances sufficient to justify a stay.[15] In Bellerive Homes Pty Ltd v F W Projects Pty Ltd,[16] N Adams J referred to this line of authority and concluded:

To summarise the above principles, a stay will generally be less readily available in relation to judgments entered following an adjudication under the SOP Act than in relation to appeals arising from curial proceedings. The question involves a balancing exercise between the policy of the SOP Act (that successful applicants be paid promptly) and the likelihood of irreparable prejudice which would flow from the refusal of the stay if success in the related proceedings would be rendered worthless. The risk needs to be more than 'a real risk of prejudice' if a stay is not granted.[17]

38 In R J Neller Building Pty Ltd v Ainsworth,[18] in relation to the operation of the Building and Construction Industry Payments Act 2004 (Qld) in circumstances where the property owner sought a stay, Keane JA (as his Honour then was) said:

[T]he BCIP Act seek to preserve the cash flow to a builder notwithstanding the risk that the builder might ultimately be required to refund the case in circumstances where the builder's financial failure, and inability to repay, could be expected to eventuate. Accordingly, the risk that a builder might not be able to refund moneys ultimately found to be due to a non-residential owner after a successful action by the owner must, I think, be regarded as a risk which, as a matter of policy in the commercial context in which the BCIP Act applies, the legislature has, prima facie at least, assigned to the owner.[19]

39 In a reply submission, the applicant contends that in the exercise of the Court's broad discretion, consideration should be given to the provisional nature of the fruits of the judgment below and the prospect of a future restitution order after a full consideration of the claims.

40 The applicant submits that a factor in the exercise of our discretion is the strength of the applicant's prospects of success, which it was submitted are good.

41 The applicant also took us to parts of the transcript and the evidence[20] in an endeavour to demonstrate that the settlement agreement, on which a not insubstantial amount of the Payment Claim was based ($724,260.76), was an unauthorised and back-dated forgery. The applicant submitted that this was important because 'fraud unravels everything'. The respondent objected to this evidence and said that it would deal comprehensively with the allegations at the hearing of the application for leave to appeal.

42 It is clear from the authorities referred to by N Adams J in Bellerive (which include the decision of Keane JA in Ainsworth) that each case must be considered according to its own facts and circumstances and that the Court retains a wide discretion. Accordingly, we do not find it necessary or desirable in this case to express a view whether, in cases of this kind, an applicant for a stay is required to demonstrate something more than special or exceptional circumstances as formulated by this Court. In any event, the cases referred to do not go so far as to suggest that a stay is never available in such cases but only that it is less readily available, inviting consideration, as must be the case, of all of the relevant facts and circumstances. Inevitably in this area, one of the relevant considerations will be the likely period for which a stay will deprive the successful party of the fruits of its judgment. The longer that period is, the greater the extent to which a stay may undermine the policy of the Act that payments be prompt.

43 We have refrained from undertaking (and indeed are unable at this stage to undertake) a proper consideration of the Reasons and the proposed grounds of appeal but we have heard enough to be satisfied that the case raises questions of difficulty and importance and that one or more of the proposed grounds of appeal is arguable.

44 The existence of the allegation of fraud, not made lightly, is a troublesome issue that we cannot ignore when exercising our discretion. At the same time, we accept that the respondent, as indicated, will deal with the issue as part of the application for leave to appeal. It is therefore especially undesirable for us to enter into the merits of that particular issue now.

45 Ultimately, the critical consideration is to balance the interests of the parties, based on the particular features of the case. Although ordinarily the respondent is entitled to the fruits of the judgment below, there is in our opinion and on the evidence, not only a real risk that a successful appeal will be rendered nugatory. The existence of an allegation of fraud, articulated in some detail, also weighs in the balance. In so far as regard should be had to the special nature of a case under the Act, we consider that there are two important aspects that address and are protective of the respondent's position and that are relevant to the exercise of our discretion. The first is that the Judgment Debt must be paid into Court. The second is that the Court is able to grant an expedited hearing of the application for leave to appeal which will be heard together with the appeal. The application is to be heard on 20 November 2020 by the Court as presently constituted. The combination of these matters makes the real risk identified by the applicant unacceptable and justifies a holding position that balances the interests of both parties.

46 In all of the circumstances, including the existence of an allegation of fraud, we granted the stay because we considered that there was a real and unacceptable risk that the appeal would otherwise be rendered nugatory and that, in the exercise of our discretion, an expedited hearing and a payment of the Judgment Debt into Court sufficiently balanced the interests of the parties.

[1] Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570 ( 'Reasons').

[2] Ibid [71]-[72] (citation omitted).

[9] [2008] VSCA 122, [19]-[27] (Dodds-Streeton JA, Redlich JA agreeing at [1]) (citations omitted).

[10] [2016] VSCA 114, [8] (Whelan and Kaye JJA) (citations omitted).

[11] [2020] VSCA 122, [15] (Kaye and McLeish JJA) (citation omitted).

[12] The minutes of the meeting with Multiplex held on 15 November 2019 record that '[Façade] have no funds due to Yuanda not paying and therefore cannot fund the termination entitlement payments' and that '[Multiplex] will ensure the guys are paid their entitlements'.

[13] The Certificates of Title to three properties are exhibited to the Callipari Affidavit. In respect of two of the three properties Façade holds a one-third interest as a tenant in common. In relation to the third of the properties Façade holds 19 of the 20 undivided shares. This property appears to be a residential address in Sunshine West, Victoria. There is no valuation or any estimate of the value of the properties.

[14] In a letter dated 2 October 2020 and addressed 'to whom it may concern', Marius van Greuning, commercial manager of Built, refers to the two projects identified by Mr Callipari, but gives no timeline and indication of the value of the projects to Façade. It appears that the $12 million and $1.5 million figures are the value of the projects to Built.

[15] See 1155 Nepean Highway v Promax Buildings [2020] VSC 471, [70] n 22 _(_Digby J) citing authorities in relation to the operation of the Building and Construction Industry Security of Payment Act 1999 (NSW): Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344, [4] (Einstein J); Herscho v Expile Pty Ltd [2004] NSWCA 468, [3] (Hodgson JA); Veolia Water Solutions v Kruger Engineering [No 3] [2007] NSWSC 459, [75] (McDougall J).

[16] [2018] NSWSC 1435 ('Bellerive').

[18] [2008] QCA 397; (2009) 1 Qd R 390 ('Ainsworth').

[19] Ibid 401 [40] (Keane JA, Fraser JA and Fryberg J agreeing at 402 [51] and [52]).

[20] The Applicant sought leave to rely on an affidavit of its solicitor, Bo Yu Chi, sworn 9 October 2020, exhibiting the settlement agreement and parts of the transcript of the hearing. The Respondent opposed such leave, contending that the matters were not relevant to the stay application. We granted leave to the Applicant and noted the Respondent's indication that the relevant matters will be dealt with during the application for leave to appeal.