Those who follow the Byzantine ways of the Victorian security of payment legislation may have noticed, last month, the decision of Justice Riordan in Façade v Yuanda concerning the prohibition on the court giving judgment under section 16 (the “no payment schedule” section) of the Building and Construction Industry Security of Payment Act 2002 (Vic) in cases where the claimed amount includes an excluded amount.

These people may or may not have noticed that there have been a couple of further developments in this case since then:

• on 1st October, the trial judge extended the stay of execution in order to allow time for Yuanda to apply for a full stay pending appeal to the Court of Appeal
• on 9th October, the Court of Appeal granted that stay. The court proposes to publish its reasons this coming week.

The appeal itself is likely to be heard sometime in late November.

I did not appear at the trial, but was instructed as leading counsel for Yuanda in both the successful applications for these stays (both vehemently opposed), and benefited from the helpful support of Laura Mills of the Victorian bar as my very able junior. We are likewise briefed for the appeal. Being so briefed, I will not comment further until the appeal is heard, save to say that the most notable ground is that the trial judge devoted a pivotal section of his judgment to the question of what “claimed amount” means in section 16(4)(a)(ii) without regard to, or even reference to, the definition of “claimed amount” in the Act.  That is clearly going to feature in the appeal.

An interesting feature of these hearings is that they are conducted virtually. As counsel, we sit, not at the bar table in court, but at home in front of our computer screens. There is something slightly odd about putting on court regalia at home, but I guess it’s something that one gets used to. Many times have I flown around Australia in order to appear in courts thousands of miles away (my practice is largely interstate and international). It is something that I had got used to.  But aeroplanes and hotels have long since ceased to hold any romance for me, and whilst I very much enjoy catching up with professional colleagues (and many friends) from all around the world at construction law conferences, court appearances are rarely accompanied by the same bonhomie.[1]

My guess is that there is going to be something permanent about this. And that when the Covid nonsense eventually subsides, court appearances by video link are going to be, not the occasional exception, but rather more the norm.[2]  In at least one sense, there may be a real upside to this. Australia is a confederation of States and Territories, and hitherto the tyranny of distance has led to a wholly unhelpful compartmentalisation – some would say parochialism – in the legal world. It is a complete nonsense that there is a different criminal law in every State and Territory of Australia, and that in most areas (including construction law) mechanisms like security of payment are governed by different statutory regimes.

[1] I hesitate to say this, but particularly in Victoria. In most parts of the world, opposing counsel are, on a personal level, friendly and amusing. But in Victoria, I have found, that counsel (not all, of course) that I have been opposed to find it necessary to adopt a more snarling approach. I’m not sure why. Perhaps they think that legal processes are somehow akin to Australian rules football?

[2] it is less likely that the same will apply to processes such as mediations or dispute avoidance boards, where personal interactions are much more important.