Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3)

Nova Builders Pty Ltd (Nova) and Beno Excavations Pty Ltd (Benex) had a contract for earthworks on a residential development in the ACT. The contract was managed by Benjamin Moseley, who was employed by Benex through Harlech Enterprises Pty Ltd. Unbeknownst to Benex, Moseley used his position to issue invoices to Nova on behalf of a company he had set up, Civil and Civic Corporation Pty Ltd (Civil), claiming that the work was being performed by a joint venture. Nova paid the invoices, totalling $550,000, to Civil. After discovering the deception, Nova sued Civil for the return of the money, claiming it had been paid under a mistake. Civil, in turn, claimed it was entitled to the money as it had performed the work. Benex also sued Nova, claiming it was entitled to the money it was owed under the original contract.

The court had to determine whether a joint venture existed between Civil and Benex, and if so, whether Civil was entitled to the payment. The court also had to consider whether Nova was entitled to restitution for the mistaken payment to Civil.

The court found that no joint venture existed between Civil and Benex. Moseley had no authority to enter such a joint venture and had deliberately kept its existence secret from the directors of Benex. There was no evidence to support the existence of the joint venture, and the actions of Moseley and Civil were inconsistent with such a joint venture. The court concluded that Civil had no entitlement to the payment from Nova. Nova had paid the money under a mistake, believing it was paying Benex for work done. The court held that Nova was entitled to restitution for the mistaken payment, and it ordered Civil to repay the $550,000 to Nova. The court also ordered that further submissions be made on Benex's claim against Nova, regarding whether Nova had accepted Benex's work and whether Moseley's actions precluded Benex from denying the payment to Civil.