Nova Builders Pty Ltd v Beno Excavations Pty Ltd - [2021] ACTSC 295

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Nova Builders Pty Ltd v Beno Excavations Pty Ltd
Citation:	[2021] ACTSC 295
Hearing Date:	19 July 2021
DecisionDate:	18 November 2021
Before:	McWilliam AJ
Decision:	See [65]
Catchwords:	PRACTICE AND PROCEDURE – INTERPLEADER – where interpleader relief granted and moneys paid into court – whether interpleader relief appropriate in the circumstances – where applicant for interpleader relief was then sued in respect of the sum paid into court and foreshadowed counter-claim sought relief by way of restitution – where the question giving rise to the disputed moneys has not properly been brought before the court on the existing pleadings – applications dismissed and procedural directions made
Legislation Cited:	Common Law Procedure Act 1860 (UK) s 12 Court Procedures Rules 2006 (ACT) rr 2600, 2622 Court Procedures Act 2004 (ACT) s 5A Supreme Court of Judicature Act 1873 (UK) Supreme Court Rules 1947 (SA) O 16B Supreme Court Rules 2000 (Tas) r 218
Cases Cited:	Abel Equipment Pty Ltd (in liq) v National Capital Development Commission (Supreme Court of the ACT, Blackburn CJ, 25 August 1982) Australian Customer Target Information Company Pty Ltd v Cabool Holdings Pty Ltd & Anor [2003] NSWSC 753 Crawford v Fisher (1842) 1 Hare 436; 66 ER 1103 Crawshay v Thornton (1837) 2 My & Cr 1; 40 ER 541 De La Rue v Hernu, Peron & Stockwell Ltd [1936] 2 KB 164 Eastern Holdings Establishment of Vaduz v Singer & Friedlander Ltd [1967] 2 All ER 1192 Guerinoni v Dennis Castino t/as Castino & Co Chartered Accountants [2008] NSWSC 175 Kennett v Charlton [2007] NSWSC 190 L. J. Hooker Ltd v Dominion Factors Pty Ltd [1962] NSWR 573 LJ Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52 Olsson v Dyson (1969) 120 CLR 365 Re McPherson, Thom & Co.; Sandhurst and Northern District Trustees, Etc., Co. Ltd. v Coombie Pastoral Co. Pty. Ltd. [1929] VLR 295 Riabkoff v Abenergy Properties Pty Ltd [2012] NSWSC 724 St George Bank v Meredith; Ghabrial v Meredith [2017] NSWSC 961 Ulrich v Baillieu Bowring Marsh & McLennan Pty Ltd (Supreme Court of Queensland, Shepherdson J, 10 July 1985) Vertical Australia Pty Ltd v Air Company Vertical-T LLC [2012] NSWSC 719 Watson v Park Royal (Caterers) Ltd [1961] 2 All ER 346 Wells v Glasscock (1893) 19 VLR 116
Texts Cited:	William Francis Finlason, ESQ, The Common Law Procedure Acts of 1852, 1854, and 1860 (V. & R. Stevens & Sons, 1860) Lewis Carroll, Alice’s Adventures in Wonderland (Macmillan and Co, 1867)
Parties:	Nova Builders Pty Ltd (Plaintiff) Beno Excavations Pty Ltd (First Defendant) Civil & Civic Corporation Pty Ltd (Second Defendant)
Representation:	Counsel R Arthur (Plaintiff) C McKeown (First Defendant) K Pattenden (Second Defendant)
Solicitors Lexicon Lawyers (Plaintiff) Joseph Tallarita (First Defendant) Chamberlains (Second Defendant)
File Number:	SC 276 of 2020

McWilliam AJ

Nova Builders Pty Ltd (Nova Builders) is the owner of a development site located at Block 4, Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] ACTSC 295
Decision Date

CaseChat Overview and Summary

Nova Builders Pty Ltd is the owner of a development site and sought to engage Beno Excavations Pty Ltd and Civil & Civic Corporation Pty Ltd to perform earthworks on the Site. A dispute emerged as to which of the two defendants is entitled to a sum of money paid into Court, initially $438,078.93 but increased to $462,003.93 during the hearing (the disputed sum). Nova Builders, who acknowledge the sum is due and payable in respect of the works carried out on the Site, do not know which of the two defendants should be paid. Both defendants filed a statement of claim against Nova Builders, and the plaintiff sought interpleader relief. The Court granted that relief, and orders were made for $438,078.93 to be paid into court. The defendants subsequently filed competing applications in proceeding. The Court was required to decide whether interpleader relief was appropriate in the circumstances and what should happen next. The Court found that interpleader relief was not appropriate in the circumstances. The Court dismissed both applications, made procedural directions, and ordered that each party bear its own costs.

Orders