Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd

In Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd, the Supreme Court of the Australian Capital Territory was tasked with deciding whether to set aside an order for restitution made by a previous judge. Beno Excavations Pty Ltd (Beno) is a construction company, while Harlech Enterprises Pty Ltd (Harlech) provided Beno’s general manager under an oral contract. The dispute centers on whether the contract included a term that Harlech would receive a percentage of Beno’s profits. Harlech attempted to recover its alleged entitlement under the contract by making a payment claim under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). An adjudicator accepted the claim and provided an adjudicator’s certificate, which Harlech filed as a judgment for a debt in the District Court of New South Wales. Harlech then obtained partial payment of the judgment debt under a garnishee order issued by that Court. Beno subsequently applied to the Supreme Court of the ACT for payment “by way of restitution” of the amount received by Harlech under the garnishee order, which was granted by Elkaim J. Harlech now seeks to have the restitution order set aside on the grounds that the order should be set aside in light of a relevant change of circumstance, namely, that Harlech has now commenced civil proceedings to recover the amount awarded under the adjudicator’s invalid decision. The issues before the court were whether the restitution order is final or interlocutory, whether there was a basis for ordering restitution in the circumstances and having regard to the operation of the Building and Construction Industry (Security of Payment) Act, and if the order is interlocutory, whether it is appropriate to set it aside in light of Harlech’s commencement of proceedings to enforce the contract. The court found that the restitution order is interlocutory and that there was no basis for ordering restitution. The court also found that the fact that Harlech has now commenced civil proceedings to resolve the factual dispute is a relevant change of circumstances. Accordingly, the court set aside the restitution order and the consequential order for the payment of interest.