R J Neller Building P/L v Ainsworth [2008] QCA 397

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the respondent was successful in an adjudication of its claim for payment from the applicant for work performed under a construction contract – where the respondent obtained an enforcement warrant against property owned by the applicant based upon the adjudication certificate – where the applicant commenced proceedings against the respondent seeking an order that the adjudication be set aside and damages for breach of contract – where the applicant applied to have the enforcement warrant set aside – where the applicant applied for a stay of the enforcement warrant – whether the learned primary judge erred in dismissing the applications – whether this Court may order a stay of the enforcement warrant pursuant to r 800 of the Uniform Civil Procedure Rules 1999 (Qld) - CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the applicant engaged the respondent to carry out renovations to his property – where the applicant, in signing the standard form contract, declared that he is not a "resident owner" – where the respondent carried out the work – where the applicant refused to make all payments to the respondent for the work completed – where the respondent sought to rely upon the provisions of the Building and Construction Industry Payments Act 2004 (Qld) – where the applicant now claims to be a "resident owner" – whether the provisions of the Act apply to the contract between the applicant and respondent - Building and Construction Industry Payments Act 2004 (Qld),  s 3, s 31, s 99, s 100 - Domestic Building Contracts Act 2000 (Qld), Sch 2 - Uniform Civil Procedure Rules 1999 (Qld), r 800 - Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, cited - Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; - [2004] NSWCA 394, cited - Cook's Construction P/L v Stork Food Systems Aust P/L - [2008] QCA 322, considered - Deputy Commissioner of Taxation (Vic) v Yosemite Afforestation Pty Ltd (1988) 19 ATR 1326, cited - R J Neller Building Pty Ltd v Ainsworth [2008] QDC 129, approved

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