Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 4)

Beno Excavations Pty Ltd t/as Benex Pipelines (the plaintiff) brought an application against Harlech Enterprises Pty Ltd atf Harlech Family Trust (the first defendant) seeking an order that the first defendant pay to the plaintiff the sum of $196,428.79 by way of restitution, together with various associated orders. The application was opposed. The basis for the application was that on 17 March 2021 an adjudicator (the second defendant) made a determination under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (the SOP Act) directing the plaintiff to pay $598,812.17 to the first defendant. On 26 November 2021 Mossop J quashed the adjudicator’s determination and, on 11 August 2022, an appeal from the decision of Mossop J was dismissed. An application for special leave has been filed in the High Court but has yet to be determined. The respondent contended that the application was not entitled to succeed on three bases: (a) the application for restitution could only be based on the unjust enrichment of the plaintiff, but as the plaintiff owed more than the claimed amount to the first defendant, there had not been any unjust enrichment; (b) the monies claimed had been paid pursuant to a garnishee order made in the District Court of New South Wales; and (c) the claim for restitution was inconsistent with s 38 of the SOP Act, which expressed a legislative intention that there should be no restitution until the whole of the dispute between the parties had been completed. Elkaim J held that the respondent’s arguments were unavailing. The application was entitled to succeed and the orders sought would be granted.

The orders of the court were as follows: (i) The applicant has leave to rely on the application in proceeding filed on 4 January 2022. (ii) The respondent (the first defendant) is to pay the applicant (the plaintiff) the sum of $196,428.79 by way of restitution. (iii) The respondent is to pay the applicant $11,893 by way of interest on the sum stated in the previous order. (iv) The respondent is to pay the applicant’s costs of the application in proceedings filed on 4 January 2022.