Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd

Harlech Enterprises Pty Ltd (Harlech) sought to set aside a judgment entered in the Supreme Court of New South Wales, which had been based on an adjudication determination made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). Beno Excavations Pty Ltd (Beno) had obtained the adjudication determination and subsequently entered judgment. Harlech contended that the adjudication determination was affected by jurisdictional error, rendering the judgment invalid.

The central legal issues before the Court of Appeal were whether the Supreme Court had erred in refusing to set aside the judgment, and whether Harlech was entitled to restitution of moneys paid under a garnishee order that had been executed pursuant to the judgment, given that the judgment was subsequently set aside due to jurisdictional error in the adjudication determination.

The Court of Appeal found that the original adjudication determination was indeed affected by jurisdictional error, as the adjudicator had failed to consider a crucial defence raised by Harlech. Consequently, the judgment entered on the basis of that determination was a nullity. The Court affirmed the principle that a judgment entered on an adjudication determination affected by jurisdictional error should be set aside. Furthermore, the Court held that Harlech was entitled to restitution of the moneys paid under the garnishee order. This right to restitution arose under the general law, as it would be unjust to allow Beno to retain moneys paid under a judgment that was a nullity. The Court also noted that an alternative basis for restitution existed under section 124A of the *Civil Procedure Act 2005* (NSW).

The Court of Appeal granted leave to appeal but dismissed the appeal, upholding the decision that the judgment should be set aside and that restitution was available.