Can a Court Grant a Stay of an Execution of a SOPA Judgment Arising From an Adjudication Certificate?
Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114
The respondent, Mr McMenemy, contracted with the appellant, Black Label Developments Pty Ltd (the Builder), to renovate his family’s home. On 7 September 2023, Mr McMenemy informed the Builder that his family needed to move back into the home on 22 September 2023. On 22 September, the Builder’s principal, Mr Black, informed Mr McMenemy that moving into the house would not be permitted until a deed of variation (the Deed) was executed. Among other things, the Deed substantially increased the contract price. Mr McMenemy executed the Deed. On or about 26 March 2024, the Builder served a payment claim on Mr McMenemy pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) claiming moneys said to be owed under the contract as varied by the Deed. Mr McMenemy responded by submitting a payment schedule and the claim was subject to adjudication. The adjudicator made a determination that $264,575.99 including GST was payable to the Builder. The Builder filed an adjudication certificate in the District Court which, by reason of s 25(1) of the Act, resulted in a judgment in favour of the Builder against Mr McMenemy. On 8 July 2024, Mr McMenemy and his wife, Ms Webster, commenced proceedings against the Builder, Mr Black and Mr Dane Melcum (the Builder’s site supervisor) in the District Court of New South Wales (the Other proceedings). Their statement of claim alleged, among other things, that when Mr McMenemy executed the Deed, he did so under duress and undue influence and by reason of the Builder’s misleading or deceptive and unconscionable conduct. On 2 September 2024, Mr McMenemy filed a notice of motion in the District Court seeking orders that execution of the s 25 judgment in favour of the Builder be stayed pending resolution of the parties’ rights in the Other proceedings. The primary judge granted the stay on condition that Mr McMenemy pay into court the s 25 judgment sum. The Builder appealed, relying on the statement in A-Civil Aust Pty Ltd v Ceerose Pty Ltd [2023] NSWCA 144 at [21]: “the power [to stay] must be exercised in accordance with the policy of the Security of Payment Act”. The Court held (McHugh JA, Bell CJ and Griffiths AJA agreeing), granting leave to appeal in part and dismissing the appeal.
