Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd

[2023] ACTSC 233

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 6)
Citation:	[2023] ACTSC 245
Hearing Date:	29 August 2023
Decision Date:	6 September 2023
Before:	McCallum CJ
Decision:	Stay the enforcement of orders (ii)-(iv) of Elkaim J made 11
October 2022 pending the determination of the first defendant’s
application to have those orders set aside.
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Application to
stay the enforcement of an order for restitution pending the
determination of an application to have that order set aside –
whether the order for restitution was final or interlocutory
Legislation Cited:	Building and Construction Industry (Security of Payment) Act
2009 (ACT) ss 27, 38
Arrow International Australia Ltd v Group Konstrukt Pty Ltd
Cases Cited:
[2012] ACTCA 37; 7 ACTLR 48
Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 4)
[2022] ACTSC 275
Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 5)
[2023] ACTSC 233 Go Electrical Pty Ltd v Class Electrical Services Pty Ltd [2013] NSWSC 517 Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 Licul v Corney [1976] HCA 6; 180 CLR 213 Production Spray Painting v Newnham (No 2) (1992) 27 NSWLR 659
Parties:	Beno Excavations Pty Ltd t/as Benex Pipelines (Plaintiff) Harlech Enterprises Pty Ltd atf Harlech Family Trust (First Defendant) Jonathon H Sive (Second Defendant)
Representation:	Counsel
D Robens (Plaintiff) A J Greinke (First Defendant)
Solicitors
Tallarita Joseph Lawyers (Plaintiff)
Mills Oakley (First Defendant)
File Number:	SC 206 of 2021
McCALLUM CJ:
1․	On 11 October 2022, Elkaim J ordered the first defendant, Harlech Enterprises Pty Ltd,
to pay $196,428.79 “by way of restitution” to the plaintiff, Beno Excavations Pty Ltd: Beno
Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 4) [2022] ACTSC 275. His Honour
also made orders for the payment of interest and costs.
2․	On 22 August 2023, Harlech sought an urgent stay of the enforcement of those orders
pending the determination of a separate application by which Harlech seeks to have the
orders set aside. Harlech’s stay application is expressly premised on the contention that
Elkaim J’s order for restitution was interlocutory.
3․	After hearing the stay application, I reached the tentative view that the order for restitution
was final: Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 5) [2023] ACTSC
233. As noted in that judgment, I had undertaken in that event to give Harlech a further
opportunity to be heard on that issue.
4․	Harlech’s further submissions have dissuaded me from my preliminary view. In all the
circumstances, I have concluded that the enforcement of Elkaim J’s orders should be
stayed pending the determination of Harlech’s application to have the orders set aside.
These are my reasons for reaching that conclusion.
5․	Beno resisted the stay application on the basis that there was no serious question to be
tried as to the nature of Elkaim J’s restitution order because it was clearly final. Other
factors militated in favour of the grant of a short stay. Beno pointed to some prejudice in
the risk that Harlech will not be able to comply with the order if it is not set aside.
However, the period of the stay should be short. The enforcement proceedings
previously listed before the Deputy Registrar on 30 August 2023 (requiring Harlech’s
principal to provide a statement of Harlech’s financial position and to attend Court for
examination) can be relisted on any Wednesday that suits the parties.
6․	Furthermore, Harlech’s evidence in support of the application to set aside Elkaim J’s
order includes evidence of a relevant change of circumstances since the hearing before
his Honour. Assuming the order was interlocutory, that is a factor in favour of granting
the stay.
7․	However, Beno argued that the restitution order was final and that there was no serious
question to be tried on that issue. If that was right, absent any suggestion that the case
fell into the category of cases in which a final order might properly be set aside, the
appropriate order would have been to refuse the stay.
8․	In my earlier judgment, I recorded the unusual circumstances in which it came to pass
that Beno sought “restitution” as ancillary relief in judicial review proceedings following
its success in an application to have a determination under the Building and Construction
Industry (Security of Payment) Act 2009 (ACT) quashed on the ground of jurisdictional
error.
9․	There nonetheless appeared to be considerable force in Beno’s contention that, the
application having been permitted to be brought in that way, the order for restitution
finally resolved the principal cause between the parties.
10․	Harlech's further submissions noted the remarks of Windeyer J in Hall v Nominal
Defendant [1966] HCA 36; 117 CLR 423 at 443 where his Honour said:

[T]he test that seems to be most satisfactory and the one that accords most nearly with what has been said on the subject in this Court is that it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them.

11․	Dr Greinke, who appears for Harlech, noted that that test has been followed in Licul v
Corney [1976] HCA 6; 180 CLR 213 at 225 and by the Court of Appeal in Arrow
International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 at
[52]-[53]. Those authorities were before me at the time I reached my preliminary view.
I analysed the issue as being that the principal cause between the parties was finalised
because Elkaim J’s orders restored Beno to the position it was in before the enforcement
of the now-quashed determination under the Security of Payment Act. Harlech's further
submission demonstrate that that analysis paid inadequate attention to the nature of the
orders pursuant to which Harlech obtained the sum it has been ordered to repay by way
of restitution.
12․	It is helpful to have in mind the relevant chronology. The adjudication certificate
recording the determination under the Security of Payments Act was issued on 30 March
2021. On 27 April 2021, that certificate was registered as a judgment in the Queanbeyan
Registry of the District Court of New South Wales. On 6 May 2021, the District Court
issued a garnishee order directed to the Commonwealth Bank of Australia. The bank
returned the garnishee order in part satisfaction of the judgment debt and that is the sum
received by Harlech of which Beno sought restitution.
13․	The judicial review proceedings (that is, these proceedings) were commenced on 20 May
2021. Ultimately, the proceedings resulted in the determination being quashed but the
underlying dispute remains.
14․	Harlech's principal claim is for unpaid invoices issued against what it alleges was an oral
agreement with Beno for the payment of a percentage of Beno's gross profits in respect
of certain construction projects. The orders made by Elkaim J were not the final
determination of that underlying dispute. The determination under the Security of
Payments Act did not finally determine that claim. As submitted on behalf of Harlech,
that Act recognises that its orders can be set aside; that topic is addressed in s 27 of the
Act. Further, s 38(1) of the Act provides:

38            Effect of part on civil proceedings

(1)

Nothing in this part affects any right that a party to a construction contract—

(a)	may have under the contract; or
(b)	may have under part 3 (Right to progress payments) in relation to the contract; or
(c)	may have apart from this Act for anything done or omitted to be done under the contract.

15․ As indicated by the foregoing chronology, Beno was successful in having the

determination set aside but not before Harlech had had it registered, as allowed under

the Act. The effect of registration is to create a judgment debt and that judgment remains

in force. This was an issue raised by Harlech with Elkaim J. However, at that time, there

were no civil proceedings in which Harlech sought to enforce the alleged debt based on

the unpaid invoices. The application that came before Elkaim J pursuant to the leave

granted by Mossop J referred to in my earlier decision was dealt with as, in effect, a

wrapping up of the judicial review proceedings.

16․	Dr Greinke noted that, in those proceedings, if Beno had been relying on a claim for
restitution based on unjust enrichment, it bore the onus of proving that the enrichment to
Harlech was unjust. That of course would not be so if, in the final result, Beno is indebted
to Harlech in respect of the unpaid invoices, which amount to some $600,000.
17․	The fact that the debt was not treated as being proved or liable to be proved in the
application before Elkaim J is plain from an exchange in the transcript of the proceedings
before his Honour at pp 52-53 of the affidavit of Madeline Ness affirmed 24 August 2023
as follows:

DR GREINKE: This is a more recent affidavit. So his evidence there, paragraphs 3 through to 8, describes the oral agreement that this company, Harlech Enterprises, entered into with the plaintiff company. He describes the carrying, what the rate, which is a minimum of 15 per cent of the gross profit of the project. That is in paragraph 4. He then goes through and talks about providing the services and issuing the invoices, and the invoices add up to in total, as I said, approximately $600,000. These are the same invoices that were the subject of the appeal your Honour sat on in relation to this case.

HIS HONOUR: Yes. Is there any objection to this affidavit, Mr Robens?
MR ROBENS: Your Honour, this affidavit is being read on the interlocutory application.

HIS HONOUR: Yes.

MR ROBENS: The issue in these proceedings is not to prove whether or not the amounts in

those claimed invoices is payable or not. I don’t object to the reading of this affidavit.

HIS HONOUR: Yes.

MR ROBENS: But ask your Honour to give it the proper weighting that this doesn't go to

prove the ultimate answer of whether or not that construction invoice…

18․	It is clear from that exchange that Beno accepts that the broader issue of the debt
claimed in the invoices remains in contest.
19․	Furthermore, Dr Greinke pointed out to Elkaim J that unjust enrichment cannot be proved
while the judgment debt is extant. In other words, the amount of almost $200,000
obtained by Harlech as a result of the enforcement of the garnishee order was provided
for good consideration in that it partly discharged that judgment debt. Inexplicably, Beno
has not taken the step of having that judgment set aside.
20․	Dr Greinke also noted before Elkaim J that the nature of the power which was exercised
in other cases relied upon by Beno was an exercise of inherent power. That was the
case in a decision relied upon by Beno of Production Spray Painting v Newnham (No 2)
(1992) 27 NSWLR 659 at 661. That was a case in which the Court of Appeal had
quashed orders made by the Industrial Commission. The judgment reaching that
conclusion is reported in the same volume of the New South Wales Law Reports at 644.
By oversight, the successful claimant had failed in the same proceeding to seek
restitution of a sum paid against the orders of the Industrial Commission before they
were quashed. In those circumstances, notwithstanding the fact that the relief had not
been sought in the original proceedings, the Court took the view that it was appropriate
to consider the motion for restitution “on its merits”: at 661. The merits there, however,
were the fact that the orders for payment had been quashed by the same Court.
21․	Mossop J quashed the determination under the Security of Payments Act. However, in
the application before Elkaim J, there loomed the problem that the registration of that
determination in the District Court of New South Wales had not been set aside. The
judgment debt remained on foot. It followed that, because Elkaim J could not exercise
the inherent power of the District Court to reverse the payment made pursuant to the
interlocutory steps for enforcement taken by that Court, his Honour must necessarily
have been asked to exercise jurisdiction for restitution on the basis of unjust enrichment
which, for the reason I have already explained, was not established.
22․	In his judgment on the restitution application, Elkaim J dealt with that issue by referring
to a decision of Hammerschlag J in Go Electrical Pty Ltd v Class Electrical Services Pty
Ltd [2013] NSWSC 517. His Honour set out four paragraphs from that judgment
including at [20] as follows:

The plaintiff's submissions are manifestly unsustainable. I do not consider that the Court has a discretion to refuse relief in circumstances where the plaintiff has obtained payment based on a judgment in turn based on a void adjudication determination which has been quashed. The entire consideration for the payment has failed and a common money count lies: John Holland Pty Ltd v Roads and Traffic Authority of NSW (2006) 66 NSWLR 624 at 634.

23․	In the argument before me as to whether Elkaim J’s order was final or interlocutory, Mr
Robens of counsel relied on that passage, as I understood the proposition, to rebut
Harlech’s argument that unjust enrichment could not be established. If I have understood
the submission correctly, it is that because the determination under the Security of
Payments Act has been quashed, the consideration for the payment has failed and a
common money count lies.

24․ Importantly, however, in Go Electrical, what had happened before the restitution

application was made was not only that the underlying determination was set aside but

that the judgment based on it was also set aside. As already noted, that has not occurred

here. All that has happened is that the underlying determination has been quashed.

That is not a final determination of the dispute between the parties on the merits. That

underlying dispute has never been determined.

25․	For those reasons, I am not persuaded that Harlech's contention that Elkaim J's order
was interlocutory is unarguable. As the merits of the stay application otherwise favour
granting a short stay, that is the relief I will grant.

Orders

26․	I note that, on the previous occasion when this matter was before me, I granted a stay
until further order. That order was made in those terms for practical reasons, namely,
that the parties were unclear about when the application to have Elkaim J's order set
aside might be able to be heard, the current date on which that application is listed being
unsuitable to one of the parties and also to the Court.

27․ I continue the stay on the basis that it is stayed until further order but on the

understanding that it is until the determination of whether Elkaim J’s order is to be

enforced.

Addendum

28․	In the course of preparing this judgment (which was given orally) for publication, I noticed
a mistake in the order set out above in that I purported to continue the stay believing it
had already been granted on an interim basis until further order. In fact, the relief I had
granted up to that point was to abridge the time for compliance with an enforcement
subpoena until further order. Accordingly, the stay commenced on 6 September 2023.
On 11 October 2023, I corrected the mistake by making the following order:

Pursuant to rule 6906 of the Court Procedures Rules, I correct order 1 made 6

September 2023 to read as follows: “Stay the enforcement of orders (ii) to (iv)

of Elkaim J made 11 October 2022 pending the determination of the first

defendant’s application to have those orders set aside”.

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: