Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd

Harlech Enterprises Pty Ltd appealed to the Supreme Court of the Australian Capital Territory against a decision of the primary judge who had granted prerogative relief to Beno Excavations Pty Ltd. The dispute concerned an adjudication decision made under the *Building and Construction Industry (Security of Payment) Act 2009* (ACT) (SOP Act). Harlech conceded that the adjudicator had made an error in applying section 24(4) of the SOP Act, but argued that this error was not material because the adjudicator was bound by the "key findings" of a prior adjudication, effectively applying the doctrine of issue estoppel. Beno contended that issue estoppel did not apply to decisions under the SOP Act, and that the adjudicator's error was therefore material, constituting jurisdictional error.

The central legal issue before the Full Court was whether the doctrine of issue estoppel applied to adjudication decisions made under the SOP Act, and if not, whether the adjudicator's admitted error in interpreting section 24(4) constituted a material jurisdictional error that warranted prerogative relief. The Court was required to determine the nature of the preclusion regime established by the SOP Act and its interaction with common law principles of estoppel.

The Court reasoned that the SOP Act establishes a self-sufficient preclusion regime, designed for rapid and "hands-off" adjudication of payment disputes, and that this regime does not incorporate the common law doctrine of issue estoppel. The Court held that the SOP Act's framework for resolving payment disputes is intended to be a distinct and complete system, and that applying issue estoppel would undermine its purpose. Consequently, the admitted error by the adjudicator in interpreting section 24(4) was not cured by the purported application of issue estoppel and was therefore a material jurisdictional error. The primary judge had correctly rejected Harlech's submissions regarding issue estoppel and granted relief to Beno.

The appeal was dismissed with costs.