Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3)
[2023] ACTSC 319
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) |
Citation: | [2023] ACTSC 319 |
Hearing Dates: | 23-27 October 2023, 1 November 2023 |
Decision Date: | 3 November 2023 |
Before: | Mossop J |
Decision: | See [126]. |
Catchwords: | CIVIL LAW – BUILDING AND CONSTRUCTION – Existence of joint venture – no evidence to establish formation of joint venture or its terms – no collateral facts consistent with existence of joint venture – where one of the parties to the alleged joint venture unaware of its existence – where person asserting the existence lacked authority to enter company into joint venture agreement – joint venture did not exist CIVIL LAW – RESTITUTION – Counterclaim for restitution on the ground of mistaken payment – plaintiff paid second defendant $550,000 due to mistaken belief that first defendant authorised the payment – mistake caused the payment – second defendant’s deception procured the payment – establishment of liability to pay the $550,000 to a third party unnecessary – counterclaim allowed |
Legislation Cited: | Building and Construction Industry (Security of Payment) Act 2009 (ACT) |
Cases Cited: | Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 KAP Motors Pty Ltd v Federal Commissioner of Taxation [2008] FCA 159; 168 FCR 319 Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560 Nova Builders Pty Ltd v Beno Excavations Pty Ltd [2021] ACTSC 295 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 |
Texts Cited: | Barker and Grantham, Unjust Enrichment (2nd ed, 2018) Mason and Carter, Restitution Law in Australia (3rd ed, 2016) The Law Book Company, The Laws of Australia, vol 29 W Duncan, Joint Ventures Law in Australia (2nd ed, 2005) |
Parties: | Nova Builders Pty Ltd ( Plaintiff) Beno Excavations Pty Ltd ( First Defendant) Civil and Civic Corporation Pty Ltd ( Second Defendant) |
Representation: | Counsel R Arthur ( Plaintiff) C McKeown ( First Defendant) A Greinke with S Lamb ( Second Defendant) |
| Solicitors Lexicon Lawyers ( Plaintiff) Joseph Tallarita ( First Defendant) Chamberlains Law Firm ( Second Defendant) | |
File Number: | SC 276 of 2020 |
MOSSOP J:
Introduction and outcome
1․In 2019 and 2020, Nova Builders Pty Ltd (Nova) was undertaking a residential development project in Greenway in the Australian Capital Territory (ACT). This included excavation work and hydraulics work.
2․Beno Excavations Pty Ltd (Benex) was a company that undertook civil contracting work. Up until 3 March 2020, Benex’s general manager was Benjamin Moseley. He provided the services of a general manager to Benex through a company called Harlech Enterprises Pty Ltd. On 3 March 2020, he ceased performing his role as general manager and instead pursued work in civil contracting through Civil and Civic Corporation Pty Ltd (Civil), a company of which he was a director and, indirectly, a shareholder.
3․Prior to Mr Moseley ceasing to perform his role as general manager, Benex had understood that it had a contract with Nova to undertake certain excavation work on the Greenway project. Unbeknownst to Benex, Mr Moseley had caused Civil to issue two invoices, each in the sum of $275,000, to Nova for work undertaken on the Greenway project. The invoices, which required payment to Civil, included notations which suggested that the work was being undertaken by a joint venture between Benex and three other companies (not including Civil). These invoices were dated 31 January 2020 and 18 February 2020. Nova paid both invoices.
4․Following Mr Moseley terminating his services as general manager of Benex without notice, Benex was made aware that the Civil invoices had been issued and paid to Civil. It disputed Civil’s entitlement to any payment for the works carried out.
5․After Mr Moseley’s departure from Benex, Civil carried out the balance of the works on the Greenway site. It subsequently issued four invoices to Nova for that work totalling $462,003.93.
6․Nova was faced with competing claims from Benex and Civil. Benex claimed that it was entitled to payment for the work done prior to 3 March 2020 and said that Nova had wrongly paid Civil. Civil said that it had been correctly paid, and that Nova owed Civil a further amount of $462,003.93 for work done after 3 March 2020. Nova’s position was that it was prepared to pay for the work, but it did not know who to pay and did not wish to pay one party only to have another party successfully sue it for that amount. It attempted to interplead, but McWilliam AJ found that, based on the claims made by Benex and Civil at that stage, interpleader relief was not available in the circumstances: Nova Builders Pty Ltd v Beno Excavations Pty Ltd [2021] ACTSC 295.
7․Civil claims against Nova that it is entitled to payment of $462,003.93. Nova claims an entitlement to set off against that amount the $550,000 that it had paid as a result of the two invoices from Civil and sought judgment for the excess. That was on the basis that it was entitled to restitution of the $550,000 which had been paid because of a mistake.
8․Benex also claims against Nova. It says that it is owed $666,726.96 upon a quantum meruit for the work done up until 3 March 2020. It contends that the payment made to Civil was not a good discharge of Nova’s obligation to pay for the works done. Nova contends that the payment to Civil was a good discharge of its obligations and that, because there was a valid contract in place between it and Benex, a claim of quantum meruit is not available in the circumstances.
9․The determinative issue in the case brought by Civil is whether the work undertaken prior to 3 March 2020 was undertaken by Benex as part of a joint venture of the companies identified in the Civil invoice, along with Civil itself. If it was not, then Civil had no entitlement to payment. For the reasons set out below, I conclude that Benex was not part of any joint venture with Civil, and that Civil had no entitlement to issue the invoices that it did dated 31 January 2020 and 18 February 2020 on its own behalf or on behalf of any joint venture.
10․Because there was no such joint venture and a payment to Civil was not a payment at the direction of Benex or for its benefit, when Nova paid the two invoices totalling $550,000 it did so by reason of a mistake as the relevant person, Mr Pierlot, believed that the payment was for Benex’s benefit and at its direction.
11․That means that Nova’s defence of set off to Civil’s claim for payment for the work post 3 March 2020 must succeed. Further, its counterclaim for the excess that it paid to Civil over and above the amount that it owed must also succeed.
12․So far as the claim by Benex is concerned, that was only a quantum meruit claim and not a contractual one. In relation to this claim, further submissions are required.
13․As a result, orders will be made dismissing Civil’s claim against Nova, allowing Nova’s counterclaim against Civil and requiring further submissions in relation to Benex’s claim against Nova. Nova and Civil will need to be heard in relation to the costs of the proceedings and as to interest in relation to Nova’s successful counterclaim.
Witnesses
14․Evidence was given in part by affidavit and in part orally. Evidence of conversations alleged to have occurred was given orally.
15․Civil called Benjamin Moseley.
16․Benex called David Bencic, Dijana Bencic, Aaron Agnew, Neil White, John Ficovic, Luke Williams and Jessamy Agnew. An affidavit of David Jackson was read but he was not required to give oral evidence.
17․Nova called Kieran Pierlot, Bill Galeff and Drago Novakovic.
18․For the reasons which I outline below, I considered that Mr Moseley’s evidence was unreliable. Except for Mr Moseley, each of the witnesses gave evidence in a manner which tended to reinforce their credibility. I considered their evidence to be, subject to the usual frailties of memory of events several years ago, honestly given and reliable.
19․I do not accept the submissions made on behalf of Civil attacking the reliability of Mr Bencic’s evidence. Mr Bencic is the director of Benex. I considered that his evidence in relation to whether or not Benex had previously entered what he understood to be a joint venture arrangement was consistent with his non-lawyer’s understanding of that term. I considered that he gave his evidence in an unaffected, straightforward manner and that the substance of his evidence was consistent with the documentary records.
Chronology
20․Mr Moseley became the general manager of Benex in 2017. He was not an employee of the company, but rather was engaged to provide management services via a company that he controlled, Harlech Enterprises Pty Ltd.
21․A company named PGN Pty Ltd (PGN) had acquired a development site from the ACT Government in 2019. Prior to the settlement of the contract, the Suburban Land Agency, which had been responsible for selling the block on behalf of the Territory, contracted with Benex to remove contaminated material from the site.
22․As a result of being on site, Mr Moseley came into contact with Kieran Pierlot, manager of Nova’s building projects and one of the shareholders in PGN, the owner of the land. Mr Moseley introduced himself as the general manager of Benex. He told Mr Pierlot that he was overseeing the contract between Benex and the Suburban Land Agency to remove the fill. Mr Pierlot was impressed with the quality of the work that was being done. He and Mr Novakovic, another shareholder of PGN, decided to give Benex an opportunity to quote on the bulk earthworks for the project. That was notwithstanding that they would normally use a different company, Capello, for such work.
23․On 24 October 2019, Mr Moseley, using his Benex email address, said that the earthworks could be done for $475,000 plus GST. The email identified that he was the general manager of Benex, and included the Benex logo and a reference to the Benex website.
24․On 3 November 2019, Mr Moseley, once again identifying himself as the general manager of Benex and using the Benex logo and email address, sent a further email to Mr Pierlot, indicating that he could complete the matters identified in the email for $375,000 plus GST.
25․Following that email, a meeting was arranged for 8 November 2019 at the Campbell shops between Mr Pierlot, Mr Novakovic and Mr Moseley. Mr Pierlot and Mr Novakovic told Mr Moseley that if he could reduce his price, then they would give him the job. Following some discussion, the price of $350,000 exclusive of GST was settled upon for the works. So far as Mr Moseley representing anybody other than Benex was concerned, the evidence was as follows.
26․Mr Moseley said:
… I discussed that we used contractors and other joint venture partners in our works to be able to cover the resources required for such a project.
Did you mention any contractors that you used in that capacity, or name any contractors that you used in that capacity?---Yes. So we spoke about Canberra Earthmoving and also specifically [Nicol] Contracting.
27․He did not give any evidence of having referred to Civil during this conversation. The company had not, at that stage, been incorporated. However, in cross-examination, he agreed that Mr Pierlot was “fully familiar with Civil & Civic being the lead party on the Greenway Project for Nova”. Further, he said that Benex had lost the “lead” on the project “[p]robably in October. Somewhere between September and October.” Once again, these times, September to October 2019, predated the incorporation of Civil. How, as a matter of contract, the non-existent Civil might have become the lead contractor in September or October 2019 was never explained.
28․Mr Pierlot said that, by a handshake agreement at the 8 November 2019 meeting, the contract would be awarded for a price of $350,000. He said there was no mention by Mr Moseley of any joint venture partners. There was no indication that Mr Moseley needed to confer with somebody else before he committed to the agreement. Alex Nicol’s name did not come into the conversation at any stage.
29․Mr Novakovic also gave evidence. He is a licensed builder and responsible for the building side of Nova’s business. Mr Novakovic gave evidence with a heavy accent and recognised that, as his command of English was not as good as Mr Pierlot, he would leave “the business side” to Mr Pierlot. He said that Mr Moseley was introduced as the general manager for Benex. He said that there was no mention of any joint ventures in the conversation. There was no mention of Alex Nicol. Otherwise, he gave evidence consistent with Mr Pierlot that an agreement was reached for the carrying out of the works for $350,000.
30․For reasons explained in more detail later, I accept the evidence of Mr Pierlot and Mr Novkovic that there was no mention of joint ventures or of Civil at the meeting on 8 November 2019 and reject Mr Moseley’s evidence to the contrary.
31․Later that day, Mr Pierlot notified other persons involved in the project that Benex would be doing the bulk earthworks and Mr Moseley was the contact person. He said that Benex would provide the Construction Environmental Management Plan (CEMP) for the job. The CEMP was a requirement of the planning approval for the development imposed by the Environment Protection Authority. Mr Moseley requested, from his Benex email address, for a subcontractor to prepare the CEMP and the subcontractor indicated that it would be ready by 11 November 2019. That was in fact the case. The document indicated on its face that it was prepared for Benex. It identified the principal contractor as Benex and made no reference to any other entity. Mr Moseley, in an email that identified him as Benex’s general manager, forwarded the CEMP to Mr Pierlot the same day. Benex paid for the preparation of the CEMP.
32․Prior to commencing work on the site, a Safe Work Method Statement (SWMS) was prepared on a Benex form which identified Benex as the contractor and “Nova Builders” as the client. Mr Bencic’s electronic signature appeared on the form, identifying him as the “Person Responsible for the implementation of this SWMS”. This document was provided to Nova.
33․Work on the site pursuant to the contract commenced on about 25 November 2019.
34․Email communications during the course of the project were sent by Mr Moseley from his Benex email address and bearing a signature block which indicated that he was the general manager of Benex.
35․At the 8 November 2019 meeting at Campbell shops, Mr Moseley had expressed interest in helping with the hydraulics component of the Greenway job. Mr Pierlot told Mr Moseley, “No, we already have someone that we already use”. Mr Moseley continued to pester Mr Pierlot about completing the hydraulics component of the Greenway job. Mr Moseley gave a quote of around $850,000 - $900,000 for the cost of the hydraulics works, which Mr Pierlot rejected as too high.
36․Mr Pierlot had already engaged Goran Ragic and Zvonko Usljebrka as the plumber for the job. Mr Pierlot gave evidence that, normally, the plumber does everything for the hydraulics for a multi-unit site. Mr Pierlot had to seek permission from Goran to give up the hydraulics component of the work so that Nova could allow Benex to do that component. At a meeting on around 21 January 2020, Mr Pierlot, Mr Novakovic and Mr Moseley discussed the topsoil work, and then the hydraulics component. Mr Moseley offered to match Goran’s price, which amounted to about $500,000 (excluding GST) and about $550,000 (including GST). Mr Moseley and Mr Pierlot confirmed the price and made a handshake agreement. This agreement was clearly between the same entities that contracted on 8 November 2019.
37․On 30 January 2020, there was a management meeting of Benex attended by Mr Bencic, Mr Moseley, Ms Bencic and two others. There was some discussion of matters at the Greenway site. There was no mention by Mr Moseley or anyone else of Civil or any joint venture.
38․On 1 February 2020 at 8:33pm, Mr Moseley had requested from Ms Bencic, in her role as office manager for Benex, invoice numbers for three jobs, one of which was the Nova job. Three minutes later, he asked for an invoice number for a fourth job.
39․At 9:36pm that same evening, Mr Moseley sent a tax invoice dated 31 January 2020 to “Nova Builders/PGN Pty Ltd”. This claimed an amount of $275,000.
40․That claim represented a claim for 50 percent of the “Bulk Cut to Fill of Site” component of the job, 15 percent of the “Inground Services” component of the job and 0 percent of the “Removal of Top-Soil” component of the job.
41․It was on Civil letterhead and included the following at the bottom of the invoice:
EFT Payments
Civil and Civic Corporation Pty Ltd
BSB: [redacted]
ACC: [redacted]
Civil and Civic Corporation Pty Ltd – ABN 72 637 560 831
Project – Block 4, Section 28 Greenway ACT
Joint Venture – Benex Pipelines, Canberra Earthmoving, Nicol Contracting & Xcel Civil.
42․It should be noted that insofar as the invoice identified a joint venture, the parties to that joint venture did not include Civil.
43․The email to which the invoice was attached outlined anticipated future billing dates and amounts up until April 2020, and then a retention amount payable in April 2021. The email was signed:
Benjamin Moseley
Managing Director44․The company of which he was “Managing Director” was not expressly identified. There was nothing else in the email to indicate any change in circumstances.
45․The invoice was identified as a payment claim made under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). Mr Moseley kept the invoice secret from the Bencics.
46․Mr Pierlot had been expecting an invoice as Mr Moseley had told him that he would be sending one. The invoice was different from what Mr Pierlot expected because it was not obviously a Benex invoice. He noticed the name of Civil on it and saw the reference to Benex being part of a joint venture. He assumed that Civil was the joint venture company. He thought it was odd that this had not been mentioned to him. He did not notice that the email came from a different email address (the Civil email address and not the Benex email address). As a result, on 3 February 2020, he arranged for payment of the amount shown on the invoice to Civil.
47․On 3 February 2020, Ms Bencic provided invoice numbers for the requested jobs and included a blank invoice form for the Nova job. The invoice number in fact used on the 31 January 2020 invoice was 3376, whereas the invoice number provided by Ms Bencic for the job was 3332. Given that, on the evidence, invoice 3376 was the first invoice that Civil had ever issued, the choice of invoice number 3376 (rather than, for example, number 1) was clearly deliberate but why that was chosen is not clear.
48․On 9 February 2020, Xcel Civil Concrete and Landscape Pty Ltd (Xcel Civil) provided an invoice to Civil for $10,000 for works completed. Mr Agnew, the director of Xcel Civil, gave evidence that in the last week of January or the first week of February he had a meeting with Mr Moseley in which Mr Moseley had offered immediate payment of $50,000 for the works completed by Xcel Civil at Greenway so far. Mr Moseley told him that he would not be getting paid by Benex and that he, Mr Moseley, had the contract and a new company. He asked him to join the new company. He said that he would be able to pay him $50,000 promptly for work already done. Mr Moseley said that all invoicing would be going to Civil and not to Benex. Mr Moseley told him to “keep it under wraps” and “to keep it quiet” and as a result there were no communications with Mr Bencic about what was going on.
49․On 12 February 2020, Mr Agnew and the director of PJ Earthworks, Mr Zhao, were added as directors of Civil. Mr Zhao became a shareholder of the company as did Uriagnew Pty Ltd, a company controlled by Mr Agnew.
50․On 18 February 2020, Mr Moseley sent and Mr Pierlot received a second invoice. This invoice identified that a further 25 percent of the “Bulk Cut to Fill of Site” component of the job, a further 30 percent of the “Inground Services” component of the job and 62.5 percent of the “Removal of Top-Soil” component of the job was claimed. On 20 February 2020, Mr Moseley enquired of Mr Pierlot when the invoice would be paid, and Mr Pierlot arranged for it to be paid that day. Once again, Mr Moseley kept the invoice secret from the Bencics.
51․Notwithstanding having delivered two invoices on behalf of Civil, Mr Moseley continued to use his Benex email address for some purposes when dealing with other parties on the site.
52․On 1 March 2020, Xcel Civil billed Civil for works at the Boorowa site, another site where Benex had been undertaking works. His understanding at the time was that somehow Civil had taken over that job. The evidence does not establish whether or how that might have been the case.
53․At 5:47am on 3 March 2020, Mr Moseley gave notice that Benex was being removed from the Greenway job by an email entitled: “Update - resourcing on Greenway”. The email said:
Morning Kieran,
I will talk to you in person today or when we catch up next about this in more detail, but by way of a brief update, I thought an email.
We are removing one of the contractors, Benex Pipelines from three of our operational sites today, one of them being Greenway.
This should not effect [sic] your project, and I do apologise for any inconvenience or disruption if any.
I am supplementing the project with additional men and plant tomorrow.
Can you please let Drago know, I will be on site this morning, and will also catch up with him.
Also can you update my contact mobile to [redacted], and keep all future correspondence on this email.
Thank you and regards
Benjamin Moseley
Managing Director54․The email identified Mr Moseley as “Managing Director” and had a Civil signature block.
55․At 7:27am, Mr Moseley sent an email entitled “Severance Letter”. The letter indicated that he was “resigning from [his] capacity as General Manager of Benex Pipelines, effective immediately”. The email then set out Mr Moseley’s view of how he had turned the company around and made significant profits for the company despite Mr Bencic. It contained a series of complaints about Mr Bencic’s conduct. The email continued:
I will be taking up the role as Managing Director of Civil and Civic Corporation.
Civil and Civic holds the contract with Nova Builders on the Greenway Job.
Civil and Civic holds the contract with Beaths at Boorowa.
Civil and Civic holds the contract with Chase on the Bulk excavation.
Civil and Civic Corporation, has acquired Canberra Earth Moving, Excel Civil and PJ Earthworks.
All money owed to CEM, Excel Civil and PJ Earthworks by Benex for Chase works, Nova Works, Borrowa works will be offset against any Claim Benex has over any work completed at or on Greenway or Boorowa
All money owed to Benex by Chase will be paid as per contract.
All money owed to Benex by EVO will be paid as per contract.
I will ensure Benex is paid by both Chase and EVO following standard processes.
By close of business today Tuesday 03/03/2020, all Benex staff and plant are to be removed from Greenway and Constitution sites.
(Errors in original)
56․On 3 March 2020 at 3:02pm, Mr Moseley sent another email to Mr Pierlot apologising for the disruption to his, Mr Novakovic’s and Nova’s day. He said, “I appreciate your support and will continue to deliver a highest quality product and service to Nova”. The email had a Civil signature block.
57․At 3:53pm, Ms Bencic emailed Mr Pierlot saying:
Hi Kieran,
Can you please confirm on site meeting with David Bencic today.
Points raised –
Nova had engaged Benex Pipelines to bulk excavation, pad cut outs, pipelaying etc work on your [text missing]. Two payments made to Civil and Civic Corporation that were meant for Benex Pipelines.
Can you please send copy of invoices that you believed to be from Benex Pipelines and also the [text missing]
RegardsDijana Bencic
Executive Director58․It was apparent to Nova that there was a dispute between Benex and Civil. The approach adopted by Mr Pierlot and Nova was to let Benex and Civil sort it out and to not take sides between them. That was communicated by email to Mr Moseley at 7:37pm on 3 March 2020.
59․The first SWMS prepared for Civil of which there is evidence is dated 3 March 2020.
60․On 5 March 2020, Mr Moseley sent to Mr Pierlot a certificate of currency for insurance held by Civil. The insurance was shown as being in effect from 4 March 2020 until 4 September 2020. It identified the interested party as being PGN Pty Ltd trading as Nova Builders. It covered claims for “material damage” but the terms of the policy were not in evidence. There is no evidence of Civil having held any insurance for excavation work carried out on the site prior to 4 March 2020.
61․On 9 March 2020 at 9:07pm, Mr Pierlot sent an email to Mr Moseley as well as the Bencics about the job. It indicated that the job needed to be completed on time and that any delay would cause substantial damages. It said that Nova would put on hold the completion of the works until close of business on 16 March 2020 to allow Benex and Civil to resolve the dispute between themselves. It indicated that Nova would not wait beyond Monday in the event that the dispute was not resolved.
62․Mr Moseley responded to Mr Pierlot, saying:
There is no dispute between Civil and Civic and Benex.
Civil and Civic will be onsite as usual tomorrow to continue to complete the work for Nova.
I spoke to Drago on site last week, on Wednesday 04/03, and he assured me the agreement was between you (nova) and I (civil and civic).
We cannot afford to be down another week.
I have given Benex instruction to leave site, which the [sic] will adhere to.
The project will not be delayed nor disrupted any further.
As previously expressed, on behalf of Civil and Civic I apologies [sic] for the disruption to date, lets get this job done, and get on to the next one.
63․Five minutes later, he sent another email saying that he would have more than 10 men on site the next day and indicating that they should not stop the work. The email attached a spreadsheet of the people and machinery that were to be on site in the week commencing 10 March 2020.
64․The next morning (10 March 2020), he wrote a further email saying:
As explained we will be onsite this morning 7am to complete the works.
After receiving your email last night, I have written to Chase, EVO and others explaining the specifics of sub-contractors not having been paid on relevant projects, that have either been or are being attempted to be completed by Benex.
For your information to formalise the process:
The Australian Building Construction Commission (ABCC) will also be notified today about Benex’s breach’s [sic], on behalf of each and every creditor.
Wind up proceedings will be initiated by relevant parties upon Benex today also.
Apologies for this disruption to the project.
65․This was a very aggressive attempt to ensure that Civil was the contractor that would perform works on the site to the exclusion of Benex.
66․That afternoon he sent a further email to Mr Pierlot, saying:
I need you to issue Benex a written instruction to move their machines.
They have intentionally blocked trench alignments, and are refusing to relocate.
This is now causing us delays.
If they don’t move them, I will have a 3rd party move them.
67․There is no evidence that Nova ever issued any instruction requiring Benex to remove its machines or to leave the site.
68․On 10 March 2020, Alex Nicol of Nicol Contracting sent invoices for December, January and February to Ms Bencic. Subsequently on 29 March 2020, he sent a further email confirming that his company had been part paid by Civil and was only seeking payment from Civil for outstanding money on the Greenway project.
69․On 13 March 2020, Mr Bencic wrote to Mr Novakovic. He referred to Mr Moseley’s resignation without notice. He said that Mr Moseley “has now no authority to act on behalf of Benex in any matters”, and that Mr Moseley “never had any authority to substitute contractual arrangements between Benex and your company and other Benex’s contractors and sub-contractors”. Mr Bencic referred to the membership of Civil and the fact that Benex would have objected to Mr Moseley or any other entity taking on works to be done by Benex on the Greenway project against the interests of Benex. The email asserts that at no time did Civil or Mr Moseley have any authority to take over or manage the Benex works on the Greenway project. It indicated that any payment made by Nova to Mr Moseley would not excuse Nova from its payment obligations to Benex and that an invoice for works to date would be forwarded shortly.
70․On 17 March 2020, Mr Moseley sent a further invoice totalling $275,000 for works done on the site.
71․On 30 March 2020, Mr Moseley gave notice of a suspension of works on the Greenway site pursuant to the Building and Construction Industry (Security of Payment) Act 2009 (ACT). Consistent with his evidence that he thought that the contracting entity was PGN Pty Ltd trading as Nova Builders, as opposed to Nova Builders Pty Ltd, the notice was addressed to PGN Pty Ltd. This asserted an entitlement to suspend works pursuant to the provisions of the Act, because Nova had not provided a payment schedule to Civil in response to the invoice of 17 March 2020. Apart from demonstrating the pressure being exerted by Mr Moseley, the notice is significant because of how it describes, in a manner inconsistent with Civil’s contentions in this case, how any contract with Civil might have arisen. The notice provides, relevantly:
Civil and Civic Corporation Pty Ltd has a Contract with PGN Pty Ltd trading as Nova Builders for the works above.
The offer and acceptance of this Contract has been executed by the provision and payment of Invoice #00003376 issued on the 31 January 2020 and Invoice #00003388 issued on 18 February 2020.
72․No reference was made to any contract arising from earlier dealings between Mr Pierlot and Mr Moseley on 8 November 2019 or 21 January 2020.
73․On 31 March 2020, Mr Pierlot responded to the Mr Bencic, referring to the dispute between Civil and Benex. The email articulated the position adopted by Nova, including that it did not prevent Civil from continuing the works in order to mitigate its losses and that all monies due and payable after Nova became aware of the dispute would be held in trust. A similar email was sent the same day to Mr Moseley. That email also indicated that certain indemnities offered by Civil would not be sufficient to permit payment and responded to the notice suspending works.
74․On 1 April 2020, Mr Pierlot wrote to Mr Bencic indicating that Civil had advised Nova that, “at this stage they will continue the works”.
75․On 2 April 2020, a solicitor acting for Benex wrote to the solicitor for Nova indicating that Nova had declined to provide Benex with a copy of the invoice Nova received from Civil which was paid. He recorded, “Our client is mystified as to why it was that your client paid Civil and Civic and not our client.” The letter indicates, “Our client has assumed that your client no longer seeks to contract with it. Our client holds your client in breach of the Greenway work contract.” The letter contained a copy of an invoice dated 30 March 2020 for works done on the project in the amount of $772,767.84. The breakdown on the invoice was as follows:
(a)Benex staff wages on site: $101,238.80
(b)Benex office staff: $16,800
(c)Benex Project Manager: $26,880
(d)Benex Vehicle/Truck/Machinery: $299,650
(e)Materials and Sub Contracts: $257,947.42
76․The total of this invoice roughly corresponds to the amount claimed by Benex in the present proceedings except for the fact that one component of that invoice claim, namely a payment required to a subcontractor of Benex’s, Nicol Contracting, is no longer included. Nicol Contracting no longer makes that claim against Benex as it says it is to be paid by Civil.
77․There was further correspondence and discussion between solicitors acting for Nova and Benex which is not necessary to set out. There are also discussions between the parties themselves which did not lead to any resolution of the dispute.
78․Civil provided invoices to Nova for subsequent work on the Greenway site as follows:
(a)24 July 2020: $275,000
(b)24 July 2020: $108,075
(c)24 July 2020: $55,003.93
79․These total $438,078.93.
80․A further invoice incorrectly dated 30 April 2020, which should have been dated 30 April 2021, in the sum of $23,925 was given by Civil to Nova. This was a claim for the retention sum of 2.5 percent of the contract sum.
81․The amount of $438,078.93 was paid into court pursuant to orders of the court on about 21 September 2020. On about 22 July 2021, Nova paid a further $23,925 into court pursuant to orders of the court. The total of those two figures is the sum of $462,003.93.
There was no joint venture
82․The contention put on behalf of Civil that there existed a joint venture agreement which would justify the sending of the invoice by Civil and its payment by Nova was largely dependent upon the evidence of Mr Moseley. Unfortunately, I have reached the conclusion that Mr Moseley’s evidence was completely unreliable. It was evidence which reflected a lack of honesty in his dealings with others and a complete disregard for the obligations imposed upon him by the law in relation to those dealings.
83․At the level of broad overview, it appeared that Mr Moseley considered that by simply saying that a joint venture was in existence he could create one even in circumstances where at least one of the parties had no idea that it was in existence. His evidence did not explain how the asserted joint venture arose and hence could not properly describe how the parties joined the joint venture or what its terms were. However, for his purposes, the amorphous nature of what he described as a joint venture was sufficient to gloss over any of the legal relationships which would have had to have existed if a joint venture recognised by the law actually existed.
84․Further, he sought to use language to obscure the lack of commercial morality in his conduct. As a person contracted to provide management services to Benex, he was directly, or through his company, subject to fiduciary duties to Benex. Instead of complying with those fiduciary obligations, he chose to engineer a situation by which he could obtain the income rightfully due to Benex for the works undertaken for Nova. The language that he used to explain this was managerialist. He spoke of “navigat[ing] through” the “transition from Benex taking the lead on the projects to Civil & Civic taking the lead on the projects”. The use of these managerial euphemisms did not obscure what was really going on.
85․These conclusions have been expressed at a very high level of generality. They were informed, to an extent, by the manner in which Mr Moseley gave evidence which involved careful answers that tended not to be responsive or completely responsive to the questions he was asked. The manner in which he gave evidence tended to indicate that it was not honestly given and skewed towards his own self-interest. However, the evidence that he gave also tended impeach his credibility. Various aspects of his evidence are addressed below.
No details as to how the joint venture was formed
86․A joint venture agreement must reflect the settled indicia of a contract: W Duncan, Joint Ventures Law in Australia (2nd ed, 2005) at 117, 126. There was no written joint venture agreement. Mr Moseley’s evidence did not explain how the joint venture was formed or its terms. The evidence that he did give was conclusory and non‑specific on these issues. His evidence was that the shareholding in Civil reflected the entitlements of the joint venture partners. They were:
(a)Ben Moseley/Moseley Group Pty Ltd;
(b)P & N Gaffey (No 2) Pty Ltd (Canberra Earthmoving);
(c)as at 12 February 2020, Uriagnew Pty Ltd (Xcel Civil); and
(d)as at 12 February 2020, Zhao Youxinj (PJ Earthworks).
87․Notwithstanding this, PJ Earthworks was not involved in the Greenway project. It is therefore unclear how the shareholding reflected participation “in the joint venture relating to the Greenway Project”. His evidence asserted that Nicol Contracting was “in the joint venture… by way of subcontract”. That reflects, at very least, a vague conclusion. It does not indicate whether or not there was anything beyond the subcontract that would turn Nicol Contracting into a joint venture party as opposed to a mere subcontractor.
88․It is certainly possible that the shareholdings in Civil reflect participation by the shareholders in a joint venture to do with the business of Civil. The evidence did not disclose any indication that Civil was the corporate vehicle for such a joint venture as distinct from a company with various shareholders. However, whatever may be the position in relation to the shareholders in the company, the evidence of Mr Moseley never explained how Benex could have become a party to a joint venture without any knowledge on the part of the Bencics of having done so. It is clear that neither of the Bencics knew of the existence of Civil nor the possibility of any joint venture in relation to this project. I accept the evidence of Mr Bencic that Mr Moseley did not have authority to enter a joint venture for the purposes of the Greenway project. Mr Moseley knew he did not have such authority both in his capacity as the manager of Benex and as the director of Civil. I do not accept the submission made on behalf of Civil that previous profit-sharing arrangements, with either Harlech Enterprises or subcontractors on particular jobs, indicated the existence of any authority on the part of Mr Moseley to enter agreements that would subordinate Benex’s position to that of one of a number of subcontractors contracting through a separate joint venture company.
No understanding of his legal obligations
89․It was very clear that Mr Moseley had no idea of his fiduciary obligations to Benex or acted in wilful disregard of them. He was asked whether there was a conflict of interest between his role as the managing director of Civil and his role as the manager of Benex. He said that there was none. Similarly, he denied that there was any conflict of interest that arose as a result of keeping the arrangements made by Civil secret from Benex. This evidence struck me as involving, at the very least, wilful blindness to the obvious breaches of his obligations to Benex because he knew what he was doing was wrong.
The establishment of Civil was kept secret from the Bencics
90․The evidence establishes that Civil was registered on 19 November 2019. Recognising that he was acting contrary to the interests of Benex and proposing to take, for the benefit of Civil, the benefit of the contract with Nova, he kept the existence of Civil secret from the Bencics until 3 March 2020. That was a very deliberate course of deception on his part. There were numerous occasions when anybody acting in accordance with their obligations arising from their role as general manager would have been required to disclose the existence of Civil, their relationship with Civil and the actions that Civil had engaged in.
91․Mr Moseley attended management meetings of Benex attended by the directors and supervisors at which issues relating to the various projects in the pipeline or being undertaken by Benex were discussed. He attended such meetings on:
(a)28 October 2019;
(b)30 January 2020;
(c)6 February 2020;
(d)13 February 2020; and
(e)20 February 2020.
92․At each of these meetings, the job at Greenway for Nova was discussed. At the 28 October 2019 meeting, it was anticipated to be a job in the future. At each of the other meetings it was a current job. There was no mention of any joint venture, the establishment of Civil or any of the actions that Civil had taken. Notably, there was no reference at the 6 February, 13 February or 20 February 2020 meetings of any invoices having been issued for the project. This reflected a deliberate course of secrecy on Mr Moseley’s part.
93․At a toolbox meeting on 31 January 2020, attended by Mr Bencic and Mr Moseley, both signed in as representing the contractor “Benex”. Mr Moseley made no reference to Civil nor did he sign in as a representative of that contractor. Yet that same day, he drew up the invoice dated 31 January 2020 on behalf of Civil that was subsequently sent and paid.
94․The secrecy of Civil and its actions was designed to allow Civil to obtain payment from Nova prior to terminating Mr Moseley’s role as general manager of Benex.
Any joint venture involving Civil was not disclosed to Kieran Pierlot
95․Mr Moseley gave no evidence-in-chief about his discussion of the existence of Civil or of the existence of any joint venture between Benex and Civil with Mr Pierlot. He made a vague reference in his evidence to having said that “we used contractors and other joint venture partners in our works to be able to cover the resources required for such a project”. When pressed in cross-examination, he said that Mr Pierlot approached him as representing a joint venture and even that Mr Bencic knew that when he attended the 8 November 2019 meeting, he was doing so on behalf of the members of the joint venture and not merely Benex. He agreed to the proposition that Mr Pierlot was “fully familiar with Civil & Civic being the lead party on the Greenway Project for Nova”.
96․This was inconsistent with the evidence of Mr Pierlot, whose evidence was to the effect that he only knew of Civil when he received the invoice dated 31 January 2020 and that it was then that he saw a reference to a joint venture. It was also inconsistent with the evidence of Mr Novakovic and the evidence of Mr Bencic. The evidence of these witnesses was consistent with the email that Mr Pierlot sent immediately after the meeting on 8 November 2019 which said, “Benex will be doing the bulk earthworks. Ben is the contact… ” I considered that Mr Pierlot’s, Mr Novakovic’s and Mr Bencic’s evidence on this point was clearly reliable and hence did not accept the evidence of Mr Moseley to the contrary. His evidence that he told Mr Pierlot about joint venture partners and the existence and role of Civil prior to the sending of the invoice on 1 February 2020 was self‑serving and unreliable.
Nobody else knew there was a joint venture involving Benex
97․Mr Novakovic had never seen or heard anything from Mr Moseley that indicated that there was a joint venture performing the works.
98․Mr Bencic said that Benex was always the sole contractor with the client and that the company never entered into any joint venture tenders. In oral evidence, he drew a distinction between a profit-sharing agreement or a bonus arrangement on the one hand, and a joint venture in which Benex was not the sole party contracting with the client. While he accepted that profit-sharing or bonus arrangements had been entered into, he denied ever having entered a joint venture in which Benex was not the sole contracting party.
99․Aaron Agnew, the director of Xcel Civil, had previously subcontracted for Benex in July 2019 on another job. He had not heard of Civil at the time that he commenced work on the Greenway site. He first learnt of Civil in a meeting in February when Mr Moseley offered him $50,000 for the works completed to date and told him that Benex was not going to pay his company. Mr Moseley agreed that he told Mr Agnew not to tell Mr Bencic about Civil.
100․That evidence was corroborated by Mr Agnew’s wife, Jessamy Agnew. She became office manager for Civil in the week of 24 February 2020. Mr Moseley instructed her not to email him anything relating to Civil to his Benex email. I accept her evidence that prior to 3 March 2020, there were times when Mr Moseley came into the office and said he could not stay for any length of time because he was still employed by Benex and he did not want Benex to become suspicious about where he was. That is entirely consistent with the secrecy which Mr Moseley applied in relation to communicating the existence of Civil to the Bencics and I reject Mr Moseley’s denial that he acted in the manner that Ms Agnew said he did.
101․John Ficovic, the director of JMS Concreting Pty Ltd, which did concreting work for Nova, gave evidence that, although his company poured its first slab on the site in January 2020, he knew nothing about Civil until March 2020.
102․David Jackson, who ran a road sweeping service contracted to do work on the Greenway site, said he was directed to send invoices to Benex and that he never heard any mention of Civil until March 2020 when he was offered more work by Civil at the Greenway site.
103․Neil White was a site supervisor. He did not work at the Greenway site, which was the responsibility of another supervisor, Dean Hall. Despite being involved in the management meetings of Benex, at no time during his employment with Benex did he know of any joint venture with Civil.
No collateral facts consistent with the existence of the joint venture or a genuine belief in its existence
104․If there indeed had been an agreement to enter into a joint venture for the Greenway project with Civil as the “lead contractor”, then it is likely that there would have been some objectively ascertainable signs that that was a case. There were not.
(a)Mr Moseley never signed into the jobsite as a representative of Civil.
(b)There was no signage on the site that indicated any involvement by Civil. On the contrary, John Ficovic, the director of JMS Concreting Pty Ltd, gave evidence that there was Benex signage on the site fencing and that he signed on to a Benex SWMS document each day upon arrival.
(c)Mr Moseley wore no clothing that would identify him as a representative of Civil.
105․Civil had no works insurance, which would have been necessary if indeed it was the contracting party for the building works. Mr Moseley gave some non-specific evidence that there were other insurances in place, but said there was no contractor’s work insurance. That insurance was only obtained after 3 March 2020. He is therefore suggesting that during a contract where Civil was the contracting party and hence liable to Nova, it had no insurance in place to cover any liability that might arise.
106․Mr Moseley consistently used his Benex email address and sent emails with the Benex signature block up until 3 March 2020. Had there actually been a joint venture agreement in which Civil was the relevant contractor, then there would have been no need for this subterfuge.
107․Mr Moseley, in his capacity as the general manager of Benex, never prepared an invoice so that Benex’s work on the purported joint venture could be paid for by Civil. This was significant evidence because at one point in his cross-examination, Mr Moseley said that the only reason that Civil had not paid Benex for its work on the project pursuant to the joint venture was because it had not received an invoice from Benex. He also gave evidence that he obtained invoice numbers from Ms Bencic not for the purpose of sending an invoice in Benex’s name to Nova, but instead for the purpose of preparing an invoice to be sent to Civil. Yet, he never prepared or sent such an invoice. Having failed to do so in his capacity as general manager of Benex, he then relies upon that failure in order to deny any payment at all to Benex. I considered this evidence to be obviously disingenuous.
Mr Moseley was aggrieved and had a sense of entitlement
108․There is no doubt that by the time he departed, Mr Moseley was dissatisfied with his treatment by the Bencics. That is made clear by the intemperate terms of his letter of resignation. That letter referred to a variety of complaints and made clear that he thought, despite the substantial payments made by Benex to Harlech Enterprises for Mr Moseley’s services, that the benefits that he had brought to Benex were not properly rewarded. The existence of that state of mind is consistent with the conduct that he engaged in. Namely, abusing his position as general manager of Benex in order to obtain for Civil the financial benefit of the contract with Nova, a benefit to which Benex was entitled.
109․That conclusion is consistent with what Mr Moseley admitted was the plan he described to Mr Gaffey and another representative of Canberra Earthmoving at a meeting in February 2019. He agreed with the proposition that he had told Mr Gaffey that the plan was to expose Mr Bencic for costs on the Greenway job so that he, Mr Moseley, and Mr Gaffey could attempt to offset some of the claims for a job for Evo energy and a job at Constitution Avenue where there were profit-sharing arrangements with Mr Gaffey’s company and Mr Moseley’s company. The transcript recorded:
Well, you didn’t say then-the plan is to try and get you paid for all the works out of Evo at a minimum, expose him [David Bencic] for costs on Greenway for what we can, and hopefully offset some of the claims for constitution as best we can? You said that, didn’t you?---I probably did, yes, that sounds like my words.
110․Although Mr Moseley’s evidence was that he “already had the contract” for Greenway, evidence which I do not accept, what he said in the above passage appears to me to accurately reflect his thinking at the time. His intention was that by inserting a new company, Civil, into the contract between Benex and Nova, it would be possible to obtain the money from the Nova contract and deprive Benex of that money, notwithstanding that it was Benex that had in fact done the work on the Greenway site. That would leave Benex exposed to those liabilities and allow Mr Gaffey’s company and Mr Moseley’s company to satisfy some of their claims against Benex for the Evo job and, at least in part, for the job at Constitution Avenue.
Summary of conclusions on findings of fact
111․Civil did not enter any contract with Nova prior to 3 March 2020. When negotiating in November 2019 about the terms upon which the work would be carried out, Mr Moseley held himself out as the general manager of Benex. He did not tell Mr Pierlot of the existence or future existence of Civil. He said nothing which would indicate other than that the contracting party would be Benex. He did not say anything that would indicate that Nova would be dealing with a joint venture as distinct from a single contractor. The contract for the works was entered with Benex. Although there was some uncertainty as to whether the other contracting party was PGN Pty Ltd or Nova, the parties accepted in the present proceedings that it was Nova that entered the contract.
112․Benex was not part of any joint venture with Civil. The directors of Benex did not even know of the existence of Civil. Mr Moseley had no authority, and knew he had no authority, to enter a joint venture with Civil. He knew that to enter such an agreement with Civil would involve a breach of his duty to Benex.
113․Civil had no entitlement to claim payment for the works that had been undertaken by Benex on the Greenway site that were claimed in the invoices dated 31 January 2020 and 18 February 2020.
114․When Mr Pierlot paid each of the two invoices, he did so based upon a mistake that Nova was paying the sums to, or at the direction and for the benefit of Benex. Specifically, he mistakenly understood, as a result of the terms of the invoice, that there was a joint venture involving Benex relating to the conduct of the works the subject of the contract and that Civil was authorised by the members of that joint venture to receive payment on behalf of Benex.
115․The mistake caused the payment in the sense that but for the mistake, Mr Pierlot would not have made the payment to Civil. While this finding as to causation renders it strictly unnecessary to consider Mr Moseley’s and hence Civil’s state of awareness: The Law Book Company, The Laws of Australia, vol 29 [29.1.660], in case I am wrong and it is relevant, I find that Mr Moseley intended that Mr Pierlot make the payments to Civil on that mistaken basis. At the time that Civil sent each of the invoices and received each of the payments, Mr Moseley knew:
(a)that Civil was not the contracting party;
(b)that there was no agreement that included Benex which would permit Civil to receive any money relating to the performance of the work at the Greenway site; and
(c)that Civil had no entitlement to the money which was claimed from Nova.
Conclusions on Nova’s claim for restitution
116․In its defence and counterclaim, Nova has sought to set off against its liability to pay to Civil the amount of $462,003.93, the payments totalling $550,000 made on 1 and 20 February 2020. It also counterclaims for the difference between these two figures of $87,996.07.
117․Although Nova made reference to unjust enrichment in its pleadings, this is not a separate element of the cause of action for restitution on the ground of mistake. Unjust enrichment is a “’unifying legal concept’ that assists in understanding why the law recognises an obligation to make restitution in particular circumstances”: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560 at [199] and the cases there cited. It is therefore unnecessary to make any further findings directed to that specific issue.
118․Counsel for Civil argued that Nova’s counterclaim was dependent upon Benex’s claim against Nova being successful. He sought to characterise it as merely “reflexive of the claim by Benex against Nova”. As a consequence, he submitted that if the claim by Benex was rejected then the counterclaim by Nova also failed. That was said to be because “if there was an operative mistake, the payments to Civil & Civic were not ‘at its expense’ for unjust enrichment”. He submitted Nova has also failed to establish that Civil and Civic was enriched, in circumstances where it has made a loss on the job.
119․These submissions were not open as they were inconsistent with the manner in which Civil pleaded its answer to Nova’s counterclaim. That answer was dependent upon the existence of the joint venture which it had pleaded to exist between Civil, Benex, Canberra Earthmoving, Nicol Contracting and Xcel Civil. It was this joint venture which was said to have entered into the agreement with Nova as a consequence of the 8 November meeting and, by implication, the further agreement entered on about 21 January 2020. That is a joint venture which I have found did not exist. Further, no notice was given, in written submissions filed prior to the commencement of the proceedings or in counsel for Civil’s opening address, of the argument that, independently of the existence of the asserted joint venture, Nova’s claim was dependent upon the success of Benex’s claim against it.
120․In any event, the submissions lack merit. I do not accept that the claim made by Nova is merely reflexive or is dependent upon the success of Benex’s claim against it. The claim made by Nova is one in defence of a claim made against it by Civil. It is not dependent upon any claim made against it by Benex.
121․The underlying principle of a claim for restitution such as this “is the prevention or stripping of gains made by the defendant at the plaintiff’s expense in circumstances recognised by the law as unjust or in consequence of an established wrong”: Mason and Carter, Restitution Law in Australia (3rd ed, 2016) at [102]. That is, restitution is a gain‑based remedy: Barker and Grantham, Unjust Enrichment (2nd ed, 2018) at 2. For the purposes of recovery of mistaken payments, it is sufficient to demonstrate the fact of payment and that the mistake caused the payment. Here, Nova paid $550,000 to Civil on the mistaken belief that Benex had authorised that payment and that the payment was for Benex’s benefit. Nova’s intention to make the payment to Civil was vitiated by the mistake. As pointed out in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378: “If the payer has made the payment because of a mistake, his or her intention to transfer the money is vitiated and the recipient has been enriched.”
122․The establishment of liability of the payer to a third party is not required in order to claim restitution of a mistaken payment. That is compelled by the judgments of the High Court in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 at 25‑30, 68-69, which recognised that the recoupment of the value of a mistaken payment from a third party was not a barrier to recovery from the party to whom it was paid. See also KAP Motors Pty Ltd v Federal Commissioner of Taxation [2008] FCA 159; 168 FCR 319 at [44]. In Roxborough, the plurality accepted that the question was that articulated by Mason J in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 78, namely, whether the plaintiff had a superior claim to the money. In the circumstances of the present case, there can be no doubt that having paid its money to Civil because of a mistake, Nova has a claim to the money that is superior to that of Civil. In those circumstances, it is entitled to repayment of the money regardless of whether or not it may in these proceedings be found to be liable to Benex for that or some other amount.
123․Such a conclusion is consistent with the theoretical underpinnings of the law of restitution as explained in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; 253 CLR 560 at [65]-[76]. It would be plainly inequitable for Civil to retain the $550,000 in circumstances where Civil has no defence to the mistaken payment claim (of change of position, voluntariness, or some other kind) and where it was Mr Moseley’s deception that procured the payment by mistake from Nova to Civil.
124․Having found that the payments were made because of mistakes on the part of Mr Pierlot and that the claim of Nova to that money is superior to that of Civil, the claim for restitution is successful. Nova is entitled to set off the $550,000 payment against Civil’s claim for $462,003.93 and is entitled to judgment for the excess of the amount paid over the amount claimed. Nova is entitled to pre-judgment interest but the basis upon which that ought to be calculated will need to be the subject of further brief submissions and calculations. The question of costs will also be reserved.
Benex’s claim against Nova
125․On this claim it is necessary for Nova and Benex to provide further submissions. Those will be directed to two issues.
(a)Whether, by reference to the principles and authorities referred to in The Laws of Australia [29.1.1960] and [29.1.1970], Nova has acquiesced to the failure by Benex to complete the contract, and by allowing Civil to complete the excavation and hydraulics work should be taken to have freely accepted the benefit of Benex’s work so as to entitle Benex to payment by way of quantum meruit.
(b)Whether any ostensible authority of Mr Moseley in relation to the mistaken payment of $550,000 to Civil precludes Benex from denying that the payment was made to it or at its direction in circumstances where the mistaken payment has been recovered by Nova.
Orders
126․[Following submissions the below orders were made]
1.On the claim made by Civil and Civic Corporation Pty Ltd (“Civil and Civic”) against Nova Builders Pty Ltd (“Nova”), judgment for Nova.
2.On Nova’s counterclaim against Civil and Civic, judgment in favour of Nova in the sum of $87,996.07.
3.Noting that the solicitors for Nova have given an undertaking to retain the money in their trust account unless they have given 14 days’ notice to the other parties of their intention to pay it out, direct the registrar to pay out the funds in court of $462,003.93 to the solicitors for Nova.
4.All questions of costs and interest as between Civil and Civic and Nova are reserved.
5.Civil and Civic and Nova are to exchange and file submissions and calculations of interest and submissions on costs by 10 November 2023, and exchange and file any submissions in reply by 14 November 2023, and, subject to any further orders of the court, those issues will be dealt with on the papers.
6.Nova and Beno Excavations Pty Ltd are to exchange and file written submissions limited to not more than 10 pages by 10 November 2023, and exchange and file written submissions in reply limited to not more than 7 pages by 16 November 2023.
7.The application for a stay of the orders made by Civil and Civic is refused.
| I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 8 November 2023 |
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