Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd

In the Supreme Court of the Australian Capital Territory, Beno Excavations Pty Ltd sought an extension of time to file an application for prerogative relief and an extension of time and leave to appeal under s 43 of the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The applications challenged a decision of an adjudicator, Jonathan Sive. The reason for the extensions of time was that the solicitors for the plaintiff had failed to pay attention to the relevant limitation periods. The adjudication decision was made on 17 March 2021. The originating application was filed on 20 May 2021. The court was required to decide whether special circumstances existed to allow an extension of time. In this case, the reason for the delay in commencing proceedings was because of the failure on the part of the plaintiff’s solicitors to consider the issue of limitation periods, to give advice to the plaintiff in relation to those limitation periods or to take any steps to protect their client’s interests in relation to the operation of those limitation periods. The explanation for the delay was unsatisfactory, but it was one for which the plaintiff’s solicitors bore responsibility rather than the plaintiff itself. The prejudice to the defendant would arise out of the costs involved in taking steps to enforce the adjudication decision and the potential that there would now be a liability for an order by way of restitution for monies received as a result of the garnishee order and a longer than necessary delay in resolving any challenge to the adjudication decision. The merits of the claim were reasonably arguable as it was reasonably arguable that the approach taken by the adjudicator to the operation of s 24(4) and issue estoppel was one which coloured the whole of the adjudicator’s approach to the issues between the parties. The court decided that special circumstances existed and hence the threshold for an extension of time under the rules was established. The existence of special circumstances did not of itself compel the granting of the application but did meet the threshold provided for in the rule for an extension of time. The court decided that it was appropriate to grant an extension of time in relation to the claim for prerogative relief as the prospects of the claim appeared to be sufficient in the circumstances to warrant the grant of an extension of time for the limited period required. However, the court decided that it was not so satisfied in relation to the claim for an extension of time in which to bring the s 43 appeal as the extension of time required was longer and a grant of leave to appeal under the relevant limb of s 43 of the SOP Act required a conclusion to be reached that there was a manifest error of law on the face of the adjudication decision, a conclusion which the court could not reach at present based upon the arguments advanced to date.