Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd (No 2) [2026] ACTCA 14 | Case summary

What happened

The dispute arose from excavation and hydraulics work at Nova Builders Pty Ltd’s Greenway residential development. In November 2019, Nova agreed with Benex Excavations Pty Ltd (Benex) for Benex to perform earthworks. A further agreement for hydraulics work followed in January 2020. Benex’s general manager, Benjamin Moseley, negotiated those arrangements while presenting himself as Benex’s representative. The majority’s account records the relevant agreement and subsequent performance at [17]-[20].

Civil & Civic Corporation Pty Ltd (Civil) did not exist when the first agreement was made. It was incorporated on 19 November 2019 [18]. In January and February 2020, Moseley sent Nova two invoices for $275,000 each, totalling $550,000. They were issued on Civil’s letterhead and directed payment to Civil. They referred to a “Joint Venture” involving Benex and three other companies, but did not include Civil among those named parties [21]-[23]. Nova’s project manager, Kierin Pierlot, paid the invoices. The primary judge found that he believed the payments were for Benex’s benefit and at its direction, and that he mistakenly understood there was a joint venture authorising Civil to receive payment [45].

Moseley left his role at Benex on 3 March 2020. Benex then learned about the invoices and disputed Civil’s entitlement to the money. Civil performed the remaining project works and invoiced Nova a further $462,003.93 [24]-[28]. Nova did not dispute that the later work had been performed, but faced competing claims and sought to avoid paying the wrong party.

At first instance, the primary judge found that Benex was not part of a joint venture with Civil and that Civil had no entitlement to issue the earlier invoices for Benex’s work [10], [42]-[44]. That finding was not challenged on appeal [12]. The judge held that Nova’s payment was caused by mistake and allowed Nova to recover the $550,000 from Civil, applying it against the later sum claimed by Civil [45]-[46]. In related reasons, the judge found that Benex could claim reasonable remuneration for work completed before 3 March 2020, assessing its value at $456,258 [48]-[51].

Civil appealed on grounds including the elements of restitution, whether its receipt was at Nova’s expense, the effect of Benex’s ostensible-authority estoppel, findings about Moseley, and procedural fairness. McCallum CJ and Taylor J dismissed the appeal. Collier J dissented, considering that Nova’s payment discharged its obligation to Benex and that the appeal should be allowed and remitted [197]-[201], [212]-[215].

Why the court decided this way

The majority’s analysis distinguished a mistaken payment to Civil from Nova’s separate position against Benex. It first rejected Civil’s contention that the primary judge had wrongly treated mistake as sufficient without considering enrichment at Nova’s expense. The majority read the reasons as a whole: the primary judge had referred to the principle that restitution strips gains made by a defendant at the plaintiff’s expense, and had relied on the High Court’s reasoning in David Securities [64]-[68].

The majority understood David Securities to reject a requirement that a payer independently prove “unjustness” in addition to a causative mistake. Where the payer made a payment because of a mistake, the payer’s intention to transfer the money is vitiated and the recipient is enriched. The majority therefore rejected Civil’s reading of the first-instance reasons and held that there was no error in the approach to restitution [68]-[72].

The majority also rejected Civil’s argument that Nova had received the benefit of the work and therefore had not paid at its expense. It treated the relevant inquiry as whether Nova, the plaintiff in the restitution claim, had made the mistaken payment to Civil. The court said it was not necessary, for that element, to look behind the fact of payment to reassess Nova’s overall economic position [75]-[76]. It accepted that a recipient could point to circumstances showing that receipt or retention was not unjust. But Civil had defended its receipt on the basis that the joint venture existed, rather than establishing another answer such as good consideration. Because the joint venture finding stood, and Civil had not established a defence, the majority concluded that receipt of the money enriched Civil at Nova’s expense [77]-[81].

The most important relationship between the claims was the majority’s treatment of ostensible authority. The primary judge had found that Benex was estopped from denying that Moseley had authority to direct the payment to Civil. Civil argued that this meant Nova had not made a mistaken payment. The majority rejected that argument because the estoppel operated between Nova and Benex, while the restitution claim was against Civil. Civil was the actual recipient; Benex was not [92]-[95].

The majority explained that an estoppel prevents the party against whom it operates from denying the represented state of affairs. It does not turn that representation into an historical fact for all purposes or give a separate third party the benefit of the estoppel. Thus, Benex could be prevented from denying Moseley’s authority in its dispute with Nova, while Nova could still establish, in its claim against Civil, that it paid Civil because it mistakenly believed in a joint venture and the payment’s benefit to Benex [93]-[99]. The majority considered the findings compatible and dismissed grounds 3 and 10 [96], [100].

The remaining grounds did not alter the result. The finding about Moseley’s state of mind was not essential to the mistaken-payment conclusion, and Civil’s own pleaded joint-venture case had put relevant matters before the court [102]-[103]. On procedural fairness, Civil had not applied to make further submissions on Benex’s quantum meruit claim and had an opportunity to advance its arguments on appeal. It also failed to identify further submissions that would have changed the analysis [107]-[109].

Before and after state of the law

The judgment does not purport to create a new general test for restitution. Its principal contribution is to explain how the majority understood and applied existing High Court authority, especially David Securities. Before this decision, the relevant legal question already included whether a payment was made because of mistake and whether the recipient was enriched at the payer’s expense. The majority’s clarification is that a plaintiff need not establish an additional, freestanding element of “unjustness” on top of a causative mistake [68]-[71].

The majority also stated that a mistaken payment gives rise to a prima facie obligation to make restitution, while the recipient may raise a recognised answer showing that receipt or retention is not unjust. It quoted the joint judgment in David Securities for that distinction [77]. Civil did not establish such an answer on the facts found at trial [78].

On estoppel, the decision emphasises that the operation of an estoppel must be considered in the relationship in which it is asserted. Benex’s estoppel against Nova did not itself determine Civil’s entitlement to retain a payment it received. Nor did the estoppel erase the factual finding that Nova paid Civil under a mistaken belief [92]-[99]. The majority left open whether the primary judge was correct to describe the estoppel as an equitable entitlement, because that classification was unnecessary to resolve the appeal [99].

The dissent illustrates that the interaction between corporate authority and mistaken payment remained contested on this record. Collier J considered the Corporations Act 2001 (Cth), including ss 128 and 129, and authorities on actual and ostensible authority. He concluded that Nova was entitled to assume Moseley had the usual authority of a Benex general manager and that payment on his direction discharged Nova’s obligation to Benex [190]-[200]. That was not the majority’s holding. The appellate result is the majority’s dismissal of the appeal, not the dissent’s proposed outcome.

Key passages with plain-English translation

At [68], the majority said that the payer need not independently prove “unjustness” over and above mistake. In plain English, once a plaintiff proves that a mistake caused the payment, the plaintiff does not also have to prove an additional abstract element called unjustness. The recipient can still raise a legally recognised reason why restitution should not be ordered.

At [76], the majority said: “The fact of payment is at the expense of the plaintiff.” In context, this means that Nova’s payment of its money to Civil met the at-the-expense requirement. The court did not consider it necessary to examine Nova’s overall economic position to decide that element.

At [78], the majority stressed that Civil’s case at trial depended on the alleged joint venture, which the primary judge found did not exist. Civil did not establish another basis for showing that it could retain the payment. In plain English, the failed joint-venture case did not answer Nova’s restitution claim.

At [94], the majority said there was “no juridical basis” for bringing the estoppel against Benex into the analysis of Nova’s claim against Civil. The point is not that ostensible authority was irrelevant to every dispute. Rather, the estoppel constrained Benex in its dealings with Nova; it did not, by itself, give Civil a defence to restitution.

At [98], the majority explained that an estoppel does not convert the represented proposition into a fact. It restricts the legal position the party against whom it operates can take. That distinction allows a court to recognise an estoppel between two parties without treating it as binding in the same way in a separate claim involving another party.

What fact patterns trigger this precedent

The decision is most directly relevant where a payer transfers money to a recipient because of a mistaken belief about who is entitled to receive it, and the recipient cannot establish a recognised answer to restitution. The factual pattern here involved invoices for work performed by one company, payment to another company, and a mistaken belief that an asserted joint venture made the recipient an authorised payee [21]-[23], [45].

It may also be relevant where an agency or ostensible-authority argument arises between the payer and a principal, while a restitution claim is brought against a different recipient. The majority’s reasoning makes the identity of the parties to each claim important. An estoppel’s operation between the payer and principal does not automatically determine the recipient’s liability to make restitution [92]-[99].

The reasoning should be read in light of the specific findings that Civil had not performed the pre-3 March 2020 work, had no entitlement under the alleged joint venture, and had not established a defence to restitution [78]-[81]. The judgment does not establish that every payment made under an error must be repaid regardless of defences or other facts.

How later courts have treated it

The supplied judgment gives no information about later judicial treatment of this 2026 decision. It would therefore be unsupported to say that later courts have followed, distinguished, or otherwise applied it.

The judgment itself considers earlier authorities. The majority relied on David Securities to explain mistaken-payment restitution, and explained that Pavey & Matthews was the source of the “unifying legal concept” description of unjust enrichment, rather than a case resolving the elements of a claim for mistake [68]-[70]. It also considered Commissioner of State Revenue v Royal Insurance and concluded that its use of the phrase “unjustly enriched” did not displace the reasoning in David Securities [70].

The decision also refers to Mallory Technologies in discussing how the primary judge had characterised the estoppel. The majority did not decide whether that characterisation was correct, because the estoppel’s limited operation was enough to resolve Civil’s grounds [56], [99]. Any assessment of later treatment would require sources beyond this judgment.

Still-open questions

The majority expressly left open whether the primary judge was correct to characterise the estoppel as an equitable entitlement. It did not decide that issue because, whether the estoppel was equitable or common law, it operated only against Benex and for Nova, not for Civil [99].

The majority’s treatment of defences to mistaken-payment restitution is framed at a general level, but the judgment does not resolve every possible defence. It noted the possibility of circumstances showing that receipt or retention was not unjust, and observed that Civil had not established such a basis on the pleaded case and findings [77]-[78]. The application of any particular defence to different facts remains outside the decision’s stated conclusions.

The relationship between corporate assumptions under ss 128 and 129 of the Corporations Act and restitution was addressed in Collier J’s dissent, not adopted as the majority’s ratio. Collier J considered that Nova could assume Moseley had the usual authority of a general manager and that payment discharged Nova’s obligation to Benex [190]-[200]. The majority instead held that the estoppel against Benex did not defeat Nova’s restitution claim against Civil [92]-[99]. The split makes it important to distinguish the dissent’s proposed reasoning from the binding outcome of the appeal.

The judgment also does not decide how the final lower-court orders would have been framed had the appeal succeeded. The majority dismissed the appeal. Collier J would have remitted the matter because final dispositive orders had not been argued with specificity and the primary judge had managed the proceedings over several judgments [212]-[215].

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd (No 2) Citation: [2026] ACTCA 14 Hearing Date: 14 November 2024 Decision Date: 18 May 2026 Before: McCallum CJ, Taylor and Collier JJ Decision: (1) That the appeal be dismissed. (2) Subject to order (3), that the appellant pay the respondents’ costs of the appeal. (3) That, if any party seeks any different order as to costs, written submissions be filed within two weeks, with each respondent to that application filing submissions in reply within a further two weeks. Catchwords: APPEAL – CIVIL LAW – Restitution – mistaken payment – unjust enrichment – quantum meruit – elements for claim for restitution for mistaken payment – whether “unjustness” a separate and essential element beyond the fact of mistake – whether payee required to be enriched at the expense of the payer – where general manager had made representations to pay third party company – where payment made under belief that joint venture existed – whether payment vitiated by mistake where joint venture found not to exist APPEAL – CIVIL LAW – Estoppel – estoppel by representation – ostensible authority – assumptions under the Corporations Act – operation of estoppel – whether estoppel operates to the benefit of a person who is not a party to a quantum meruit claim – whether existence of ostensible authority prevents factual mistake – whether consent vitiated where ostensible authority found Legislation Cited: Corporations Act 2001 (Cth) ss 128, 129 Court Procedures Rules 2006 (ACT) r 2600 Supreme Court Act 1933 (ACT) s 33 Cases Cited: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd (No 2) [2021] NSWSC 1374 Christer Nominees Pty Ltd v Calabria Community Club Ltd [2024] NSWSC 1071 Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 48; 182 CLR 51 Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No 7) [2013] ACTSC 146 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 Fraser Henleins Pty Ltd v Cody [1945] HCA 49; 70 CLR 100 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296 Junker v Hepburn [2010] NSWSC 88 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Mallory Technologies Pty Ltd v 3D Global Ltd [2002] NSWSC 1035 Morley v Statewide Tobacco Services Ltd [No 1] [1993] 1 VR 423 Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; 170 CLR 146 Nova Builders Pty Ltd v Beno Excavations Pty Ltd [2021] ACTSC 295 Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 2) [2022] ACTSC 132 Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) [2023] ACTSC 319 Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 4) [2023] ACTSC 369 Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 6) [2023] ACTSC 392 Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 8) [2021] FCCA 1668 SZFDE v Minister for Immigration [2007] HCA 35; 232 CLR 189 Texts Cited: Ian Ramsay and Robert P. Austin, Ford, Austin & Ramsay’s th Principles of Corporations Law (LexisNexis Butterworths, 17 ed, 2018) The Law Book Company, The Laws of Australia, vol 29 Parties: Civil & Civic Corporation Pty Ltd (Appellant) Nova Builders Pty Ltd (First Respondent) Beno Excavations Pty Ltd (Second Respondent) Representation: Counsel Mr M Pesman SC and Dr A Greinke ( Appellant) Mr R Arthur ( First Respondent) Mr D Robens (Second Respondent) Solicitors Chamberlains Law Firm (Appellant) Lexicon Lawyers (First Respondent) Joseph Tallarita Barristers and Solicitors (Second Respondent) File Number: ACTCA 42 of 2023 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 3 November 2023 8 December 2023 14 December 2023 Case Title: Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 4) Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 5) Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 6) Citation: [2023] ACTSC 319 [2023] ACTSC 369 [2023] ACTSC 370 [2023] ACTSC 392 Court File Number: SC 276 of 2020 McCALLUM CJ and TAYLOR J: Introduction

Civil and Civic Corporation Pty Ltd (Civil) appeals from orders of the Supreme Court the practical effect of which is that Civil has been denied payments to which it had no entitlement. The circumstances in which Civil saw fit to contend otherwise are summarised with enviable clarity in the judgment of the primary judge (Mossop J) in Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) [2023] ACTSC 319 at [1]-[8]. That summary is reproduced almost verbatim at [2]-[9] below. We have had the benefit of reading in draft the judgment of Collier J, who would allow the appeal. We would dismiss the appeal, for the following reasons.
In 2019 and 2020, Nova Builders Pty Ltd (Nova) was undertaking a residential development project in Greenway in the Australian Capital Territory. This included excavation work and hydraulics work.
Beno Excavations Pty Ltd (known as 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 of Benex and instead pursued the work through Civil, of which he was a director and, indirectly, a shareholder.
Until Mr Moseley ceased performing his role as general manager, Benex understood it had a contract with Nova to undertake certain excavation and hydraulics work on the Greenway project. Unbeknownst to Benex, Mr Moseley had caused Civil to issue two invoices to Nova totalling $550,000 for work undertaken on the Greenway project prior to 3 March 2020. 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). Nova paid both invoices.
After Mr Moseley terminated his services as general manager of Benex without notice, Benex was made aware of the invoices issued by Civil. It disputed Civil’s entitlement to any payment for the works invoiced.
Following Mr Moseley’s departure from Benex, Civil carried out the balance of the works on the Greenway site. It subsequently issued four further invoices to Nova for that work totalling $462,003.93.
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 for that work. Civil said that it had been correctly paid for the work done prior to 3 March 2020 and that Nova owed it a further amount of $462,003.93 for work done after 3 March 2020. Nova was prepared to pay for the work but wanted to ensure that it paid the correct party. Nova accordingly attempted to interplead, but McWilliam AJ (as her Honour then was) found that, based on the claims made by Benex and Civil at that stage, interpleader relief was not available: Nova Builders Pty Ltd v Beno Excavations Pty Ltd [2021] ACTSC 295. The hearing of the claims against Nova accordingly proceeded as a contested hearing before Mossop J involving all three parties.

Circumstances in which the dispute arose

Against that introduction, it will be helpful to provide more detail as to the circumstances in which the dispute arose. The manager of Nova’s building projects was Mr Kierin Pierlot. After having the opportunity to see Mr Moseley’s work during the preparatory works at the Greenway site, Mr Pierlot invited Benex to quote on the bulk earthworks for the project. On 24 October 2019, using his Benex email address and identifying himself as Benex’s general manager, Mr Moseley provided a quote for that work. Following a meeting on 8 November 2019 between Mr Pierlot and Mr Novakovic on behalf of Nova and Mr Moseley ostensibly on behalf of Benex, agreement was reached that the works would be performed for the price of $350,000 excluding GST.
Civil did not exist at that time. Mr Moseley incorporated Civil on 19 November 2019.
On 21 January 2020, at a further meeting between Mr Pierlot and Mr Novakovic on behalf of Nova and Mr Moseley, Mr Moseley offered to match the price quoted by a different company to perform the hydraulics component of the works, which was about $500,000 excluding GST. A third agreement was later reached for the removal of topsoil for $20,000 plus GST.
From 8 November 2019 to 3 March 2020, Benex performed the works under those agreements. During that time, Mr Moseley continued to represent that he was Benex’s general manager.
On 1 February 2020, Mr Moseley sent Nova a tax invoice dated 31 January 2020 in the amount of $275,000 ($250,000 sale amount plus $25,000 GST). The invoice was addressed to “Nova Builders/PGN Pty Ltd”. It was on the letterhead of “Civil and Civic Co”. The invoice sought payment by electronic funds transfer to Civil and Civic Corporation Pty Ltd with an annotation at the conclusion of the invoice: “Joint Venture - Benex Pipelines, Canberra Earthmoving, Nicol Contracting & Xcel Civil”. Civil was not included in the list of parties to the supposed joint venture. It could hardly have been a party to any joint venture, at least at the time of the first agreement, as it was not incorporated until after the date on which that agreement was reached.
The email attaching the invoice was signed, “Benjamin Moseley, Managing Director” without specifying the relevant company. Mr Pierlot gave evidence before the primary judge that he was expecting an invoice from Mr Moseley because Mr Moseley had told him he would be sending one. The invoice was different from what Mr Pierlot was expecting because it was “not obviously a Benex invoice”: Nova Builders (No 3) at [46]. He noticed the reference to a joint venture and assumed that Civil was the joint venture company, although he thought it was odd that this had not been mentioned to him. He nonetheless arranged for complete payment of the invoice on 3 February 2020.
On 18 February 2020, Mr Moseley sent to Mr Pierlot a second invoice in similar terms, again for $275,000. Mr Moseley contacted Mr Pierlot on 20 February 2020 to inquire whether the invoice had been paid. Mr Pierlot caused Nova to pay it later that day.

Findings of the primary judge

As already noted, the primary judge’s judgment in Nova Builders (No 3) dealt with the claim made against Nova by Civil. The central issue in determining that claim was whether Benex entered into its agreements with Nova in its own right or as a party to a joint venture with Civil and others.
The primary judge observed that a joint venture must reflect the settled indicia of a contract: at [86]. He noted that there was no written joint venture agreement and that Mr Moseley’s evidence did not explain how the joint venture was formed, or its terms: Nova Builders (No 3) at [86]. He found that Mr Moseley did not have authority to enter a joint venture for the purposes of the Greenway project and that Mr Moseley knew he did not have such authority: at [88]. He found that the existence of Civil was kept secret from Benex and Nova: at [90] and [96].
The primary judge further found that no one else knew there was a joint venture and that there were no collateral facts consistent with the existence of a joint venture. Mr Moseley never signed into the jobsite as a representative of Civil, there was no signage on the site that indicated Civil was involved in the works, and Mr Moseley never wore clothing to identify him as a representative of Civil. Civil had no works insurance until after 3 March 2020 and Mr Moseley consistently used his Benex email, sending emails with a Benex signature block. His Honour accordingly found that Benex was not part of any joint venture with Civil: Nova Builders (No 3) at [9] and [112]. He held that Civil had no entitlement to issue the first two invoices on its own behalf or on behalf of any joint venture: Nova Builders (No 3) at [9] and [113].
Civil’s notice of appeal originally included a ground of appeal that the primary judge erred in finding that no joint venture involving Civil existed. However, that ground was not pressed and accordingly his Honour’s finding stands.
The primary judge further held at [10] and [114] that, because there was no joint venture with Benex and a payment to Civil was not a payment at the direction of Benex or for its benefit, Nova paid the two invoices by reason of a mistake. His Honour said at [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.
The primary judge further held at [115] that the mistake “caused the payment in the sense that but for the mistake, Mr Pierlot would not have made the payment to Civil”. His Honour accordingly concluded, for the reasons set out at [116]-[124] of the judgment, that Nova was entitled to restitution of the $550,000 paid under mistake and was entitled to set off that sum against Civil’s claim for $462,003.93.

Grounds of appeal

Civil’s amended notice of appeal specifies ten grounds of appeal, four of which were not pressed (grounds 4, 6, 7 and 9). Civil contended that the appeal would turn primarily on two alleged errors of law made by the primary judge, each said to reflect a departure from “binding High Court authority”. Those alleged errors concern his Honour’s consideration of the required elements of a claim in restitution for mistake (grounds 1 and 2) and his finding of ostensible authority (grounds 3 and 10). The remaining grounds (grounds 5 and 8) allege denial of procedural fairness.

Ground 1: elements of a claim for restitution for mistake

Ground 1 is: The primary judge erred in finding that it was sufficient for restitution to prove the fact of payment and that a mistake caused this payment.
Civil contends that the primary judge “ruled that Nova’s mistake alone was sufficient to order restitution of the payment, irrespective of whether Civil had been enriched, or whether that enrichment had been at the expense of Nova, rejecting those as elements of the cause of action for restitution”. Civil submits that this was wrong in principle and that “binding decisions of the High Court, are to the effect that [enrichment at the expense of the plaintiff] is essential to the cause of action”. The High Court authorities relied upon by Civil were Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 at 257 and 267; David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 at 392; and Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 48; 182 CLR 51 at 68 and 75.
The submission is based either on a misreading of those authorities or a misreading of the primary judge’s reasons. The gist of the complaint is that the primary judge failed to consider the element of enrichment of the defendant at the plaintiff’s expense because he did not consider that to be an essential element of a claim for restitution for mistake. That was simply not his Honour’s reasoning.
The passages relied upon by Civil as demonstrating the primary judge’s error are [117] and [121] of the decision in Nova Builders (No 3). The passage at [117] addresses a point arising from the terms in which Nova pleaded its claim: 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.
Those remarks do not reveal any error in the primary judge’s approach. As explained below, although Nova had pleaded “unjust enrichment”, it was not necessary for Nova to prove “unjustness” as an element of its claim.
Having identified a matter that Nova was not required to prove, the primary judge proceeded to consider what Nova was required to prove. His Honour said at [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 rd Law in Australia (3 ed, 2016) at [102]. That is, restitution is a gain‑based remedy: Barker nd and Grantham, Unjust Enrichment (2 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.”

Ground 2: whether Civil was enriched at the expense of Nova

Ground 2 is: The primary judge ought to have found that Civil and Civic was not enriched at the expense of Nova and refused restitution in circumstances giving rise to a windfall in favour of Nova.
As to this ground, Civil submitted: “It is unnecessary for the Court to decide whether Civil was enriched. It is sufficient to find that any enrichment was not ‘at the expense’ of Nova”. Civil submitted that the payment of the first two invoices issued by Mr Moseley was not “at the expense” of Nova because those payments reflected the agreed price for the works carried out, for which Nova received the benefit. It was common ground that the works were performed to an acceptable standard. Civil accordingly submitted that, as a result of its mistaken payment, Nova was in the same position it would have been in had Benex issued the invoices rather than Civil because “it paid the agreed price for the agreed works”.
This ground must also be rejected. As submitted on behalf of Nova, satisfaction of the requirement that the payment be “at the expense of” the payer does not involve going behind the payment and undertaking an examination of the payer’s economic position beyond the fact of payment. Nova submitted, and we accept, that its economic position “has no part to play in the determination of the prima facie unjustness of the enrichment, which is an automatic outcome of the mistake”.
In this context, Nova submitted that the function of the expression “at the expense of the plaintiff” is “procedural” in that the plaintiff must be the person who made a payment. In submissions in reply, Civil disputed that characterisation as being inconsistent with the binding High Court authority relied upon in its primary submissions. It may be accepted that the requirement that the payment be at the expense of the plaintiff is a substantive requirement – procedural is probably not the right word for it. Nova’s point, which must be accepted, is that so far as the elements of the offence are concerned, in determining the element of enrichment of the defendant at the expense of the plaintiff, the court need not look behind the fact that it was the plaintiff who made the mistaken payment (unless a positive defence has been pleaded). The fact of payment is at the expense of the plaintiff.
Nova submitted that Civil could have sought to establish that it was not unjustly enriched because Nova’s payment was made for good consideration. Authority for that analysis may be found in the joint judgment in David Securities at 379 where, after rejecting any requirement for the payer independently to prove "unjustness" over and above the mistake, their Honours said: The fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution. Before that prima facie liability is displaced, the respondent must point to circumstances which the law recognizes would make an order for restitution unjust. There can be no restitution in such circumstances because the law will not provide for recovery except when the enrichment is unjust. It follows that the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust. (Citations omitted; emphasis in original.)

Grounds 3 and 10: ostensible authority

Grounds 3 and 10 concern the finding in Nova Builders (No 4) that Benex cloaked Mr Moseley with ostensible authority. Ground 3 is: The primary judge erred in finding that there was an operative mistake by Nova since Mr Moseley held the ostensible authority of Benex.
Ground 10 is: The primary judge erred in finding that Nova’s defence relying on the ostensible authority of Mr Moseley was equitable and not maintainable to the extent that detriment was removed by the judgment on the counterclaim and further orders, or ought to have upheld the ostensible authority defence as an estoppel in pais at common law.
In assessing those grounds, it is important to bear in mind that, although Nova was the plaintiff in the proceedings (having initiated them by its application to interplead), the matters determined by the primary judge were two separate claims brought against Nova at the suit of Civil and Benex respectively. Nova defended each claim on a different basis.
To recapitulate, Civil’s claim was for payment of the invoices Civil had issued for works performed by Civil after 3 March 2020. Importantly, at the time it issued those invoices, Civil had received payment of $550,000 for earlier works not performed by it. There is no issue about that in the appeal. Senior counsel for Civil frankly acknowledged that, if the appeal succeeds, Civil will have been paid $550,000, at the expense of either Nova or Benex, for work it did not do. Nova did not dispute its liability to pay the later invoices but brought a counterclaim seeking to set off the $550,000 against its liability for the later invoices. In Nova Builders (No 3), the primary judge upheld Nova’s counterclaim, finding that Nova’s intention to pay the earlier invoices was vitiated by mistake (enriching Civil at Nova’s expense to the tune of $550,000) and that Civil was liable to make restitution for those payments.
Benex’s claim was for reasonable payment for the works it performed before 3 March 2020. Nova accepted that Benex had performed those works but defended the claim on the basis that, by its payment of $550,000 to Civil, it had discharged its contractual obligation to pay Benex for that work. The basis for that contention was that Benex had cloaked Mr Moseley with ostensible authority to direct payment of the invoices. Nova further pleaded that the contracts between Nova and Benex subsisted up until 3 March 2020 and that a claim in quantum meruit for the same works was “not maintainable in law” (because the parties’ rights were governed by the contract). Benex’s response was that the contract between Nova and Benex had come to an end through no fault of either Nova or Benex and that restitution by way of quantum meruit was accordingly available.
In Nova Builders (No 4), the primary judge accepted the allegation of ostensible authority and held that Benex was accordingly estopped from denying that the direction to Nova to pay Civil was binding on Benex: Nova Builders (No 4) at [84]. Having by then already upheld Nova’s counterclaim against Civil for restitution for mistake, the primary judge held at [90] that “the immediate consequences of [Mr Moseley’s] deception have largely been removed by the allowance of the set off of the $462,003.93 and the success of Nova’s counterclaim against Civil”. However, his Honour accepted Nova’s contention that the detriment it suffered extended beyond just the payment of the invoices and included the costs of “the court proceedings in which it was engulfed”.

Ground 5: findings concerning Mr Moseley

The remaining grounds may be disposed of briefly. Ground 5 is: The primary judge erred in finding that Civil & Civic by Mr Moseley had intentionally deceived Nova when no allegations of fraud or related knowledge or intention had been pleaded by either Nova or Benex and such contentions had not been put to Mr Moseley by Counsel for Nova or Benex during his cross-examination.
This ground should be dismissed for two reasons. First, the impugned finding was not essential to the primary judge’s conclusions or the orders made. The primary judge said in Nova Builders (No 3) at [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.
Secondly, the occasion for making findings as to Mr Moseley’s state of awareness was Civil’s claim against Nova. By its further amended statement of claim filed 28 June 2022, Civil sought to have the application for interpleader relief dismissed (meaning it would keep the $550,000) and judgment for the amount of $462,003.93 for works performed post 3 March 2020. The pleading alleged that Nova had entered into an agreement with the joint venture for the joint venture to carry out the works. The finding as to Mr Moseley’s state of awareness was an aspect of the primary judge’s consideration and determination of that allegation. In other words, it was Civil (through Mr Moseley) that put the issue before the Court.

Ground 8: alleged denial of opportunity to make submissions

Ground 8 is: The primary judge erred in finding that Civil & Civic had no interest in defending the quantum meruit claim against Nova and denying Civil & Civic the opportunity to make further submissions on that claim.
The impugned finding is at [119] of Nova Builders (No 3). At [118], the primary judge recorded a submission put by counsel for Civil that Nova’s counterclaim against it was “dependent upon Benex’s claim against Nova being successful”. It was submitted that, if Benex’s quantum meruit claim was rejected, Nova’s counterclaim against Civil also failed because “if there was an operative mistake, the payments to Civil & Civic were not ‘at its expense’ for unjust enrichment”.
The primary judge rejected that submission, saying at [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.
His Honour accordingly fixed a timetable for only Nova and Benex to make submissions on Benex’s quantum meruit claim.
Civil submits that it was “shut out” from making further submissions as to the outstanding issues in relation to Benex’s quantum meruit claim. The difficulty with that submission is that Civil was aware of the primary judge’s directions. It could have sought an opportunity to make submissions. No such application having been made, the complaint that Civil was “shut out” from making submissions cannot be sustained.
A further difficulty is that Civil has had the opportunity to make submissions in this appeal. Accordingly, even if the primary judge was wrong not to afford Civil that opportunity following the publication of Nova Builders (No 3) (which we do not accept), that error is of no practical significance. Civil has not identified what submissions it would have made had such an opportunity been granted. It may be inferred that the submissions it would have made are those it has made in the appeal, which have been considered.

Orders

For those reasons, the orders we propose are: (1) That the appeal be dismissed. (2) Subject to order (3), that the appellant pay the respondents’ costs of the appeal. (3) That, if any party seeks any different order as to costs, written submissions be filed within two weeks, with each respondent to that application filing submissions in reply within a further two weeks. COLLIER J:
Before the Court is an appeal from a decision of a single Judge of this Court in Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) [2023] ACTSC 319 (Judgment 3). Judgment 3 constituted his Honour’s final decision in interpleader proceedings, in a case where several prior orders and reasons for judgment had been delivered between November 2021 and December 2023. It is common ground that the proceedings began as a dispute between the appellant, Civil & Civic Corporation Pty Ltd (Civil) and the second respondent, Beno Excavations Pty Ltd (Benex) in respect of the amount of $462,003.93 paid into Court by the first respondent, Nova Builders Pty Ltd (Nova).
Following Judgment 3, his Honour gave judgment in related proceedings, Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 4) [2023] ACTSC 369 (Judgment 4). As his Honour explained at [1] of that judgment, the reasons in Judgment 4 related to the claim made by Benex against Nova and should be read with the reasons given in Judgment 3.
In its amended notice of appeal filed on 20 February 2024, the appellant set out ten grounds of appeal to this Court. By the time of the hearing of the appeal, Civil no longer pressed grounds 4, 6 and 9, and conceded that ground 7 was in the nature of an argument rather than a ground. The remaining grounds of appeal are as follows: 1. The primary judge erred in finding that it was sufficient for restitution to prove the fact of payment and that a mistake caused this payment. 2. The primary judge ought to have found that Civil and Civic was not enriched at the expense of Nova and refused restitution in circumstances giving rise to a windfall in favour of Nova. 3. The primary judge erred in finding that there was an operative mistake by Nova since Mr Mosley held the ostensible authority of Benex. 5. The primary judge erred in finding that Civil and Civic by Mr Moseley had intentionally deceived Nova when no allegations of fraud or related knowledge or intention had been pleaded by either Nova or Benex and such contentions had not been put to Mr Moseley by Counsel for Nova or Benex during his cross-examination. 8. The primary judge erred in finding that Civil & Civic had no interest in defending the quantum meruit claim against Nova and denying Civil & Civic the opportunity to make further submissions on that claim. 10. The primary judge erred in finding that Nova’s defence relying on the ostensible authority of Mr Moseley was equitable and not maintainable to the extent that detriment was removed by the judgment on the counterclaim and further orders, or ought to have upheld the ostensible authority defence as an estoppel in pais at common law. (Original numbering and emphasis maintained)

Background

In 2017, Mr Benjamin Moseley became the general manager of Benex. He was not employed by Benex. Instead, he was engaged to provide management services to Benex through Harlech Enterprises Pty Ltd, a company controlled by him.
At all material times, the director of Benex was Mr David Bencic. Also at all material times, Ms Dijana Bencic was the office manager for Benex.
During 2019 and 2020, Nova engaged Benex to perform earthworks at a residential development Nova was undertaking in Greenway, Australian Capital Territory.
On 24 October 2019, Mr Moseley quoted Nova to complete the earthworks at the Greenway site by email in the amount of $475,000 plus GST. That email was sent from Mr Moseley’s Benex email address, identified him as Benex’s general manager, and included the Benex logo and a link to Benex’s website.
On 3 November 2019, Mr Moseley sent a further email to Nova with a revised quote of $375,000 plus GST. That email contained the same identifying features of Benex as the 24 October 2019 email.
On 8 November 2019, Mr Moseley met with Mr Keiran Pierlot. Mr Pierlot was the manager of Nova’s building projects. Further, Mr Pierlot was a shareholder of PGN Pty Ltd (PGN), which was the owner of the land on which the earthworks were to be conducted. Also present at the meeting was another shareholder of PGN, Mr Drago Novakovic.
Following negotiations, Mr Moseley, Mr Pierlot and Mr Novakovic agreed that the earthworks contract would be awarded to Benex in consideration for $350,000 plus GST.
In relation to whether there was any discussion of Mr Moseley representing anyone other than Benex: (a) At trial, Mr Moseley gave evidence that he had discussed using contractors to complete the works during the 8 November 2019 meeting: Judgment 3 at [26]. Mr Moseley did not give evidence that he had referred to Civil specifically at the 8 November 2019 meeting: Judgment 3 at [27]. (b) Mr Moseley also gave evidence at trial that Mr Pierlot was “fully familiar with Civil & Civic being the lead party on the Greenway Project for Nova” and that Benex was not the lead on the Greenway project by “somewhere between September and October”: Judgment 3 at [27]. However, Civil was not incorporated as a company at those relevant times. (c) Mr Pierlot gave evidence at trial that there was no mention at the 8 November 2019 meeting of any joint venture partners or that Mr Moseley needed to confer with any other person before he committed to the agreement: Judgment 3 at [28]. (d) Mr Drago Novakovic, another PGN shareholder, gave evidence at trial, including that there was no mention of any joint venture at the 8 November 2019 meeting: Judgment 3 at [29].
At [30] the primary Judge accepted the evidence of Mr Pierlot and Mr Novakovic that there was no mention or joint ventures, or of Civil, at the meeting on 8 November 2019.

Findings in Judgment 3

In relation to the contention of Civil that there existed a joint venture agreement which would justify the sending of the invoice by Civil and its payment by Nova, the primary Judge observed at [82] that this contention was largely dependent on the evidence of Mr Moseley, however Mr Moseley’s evidence was completely unreliable. His Honour also noted at [86] that there was no written joint venture agreement, and nor did Mr Moseley’s evidence explain how the joint venture was formed or its terms. At [88], his Honour continued: 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.
His Honour found at [89] that Mr Moseley had no idea of his fiduciary obligations to Benex, or alternatively, acted in wilful blindness of them.
His Honour found at [90]-[94] that Mr Moseley kept the existence of Civil secret from the Bencics until 3 March 2020, which was a very deliberate course of deception on his part.
His Honour found at [95]-[103] that none of the key witnesses, in particular Mr Bencic, Mr Pierlot, Mr Novakovic, Mr David Jackson, Mr John Ficovic, or Mr Neil White, knew of the existence of a joint venture involving Benex.
In summary, at [111]-[115] His Honour found the following facts: (a) Civil did not enter any contract with Nova prior to 3 March 2020. (b) 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. (c) Mr Moseley did not tell Mr Pierlot of the existence or future existence of Civil. He said nothing which would indicate that the contracting party would be Benex. (d) Mr Moseley said nothing 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 that it was Nova that entered the contract. (e) Benex was not part of any joint venture with civil – the directors of Benex did not know of the existence of civil. Mr Moseley had no authority, and knew he had no authority, to enter a joint venture with Civil, and knew that if he entered such an agreement with Civil, he would breach his duty to Benex. (f) Civil had no entitlement to claim payment for works undertaken by Benex on the Greenway site that were claimed in the invoices dated 31 January 2020 and 18 February 2020. When Mr Pierlot paid the 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, having mistakenly understood from 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. But for that mistake, Mr Pierlot would not have made the payment to Civil.

Submissions of Benex

In summary, Benex submitted: (a) It was open to the primary judge to find that there was no joint venture, or right for the appellant to be paid by Nova; (b) There was no lack of procedural fairness; (c) There was a mistaken payment and there was no error in finding that restitution should follow; (d) The application of the facts and equitable principles did not reveal an error. A common law estoppel flowing from ostensible authority should not be available to Civil and, if it were, the equitable remedy of restitution should still prevail; and (e) Arguments raised in this appeal were not argued before the primary judge.
Both Nova and Benex contended that Civil was not entitled to the $462,003.93 that had been paid into Court. It was accepted that Civil did the work after 3 March 2020, however Benex did not admit that Civil should be paid for works post March 2020. Counsel for Civil accepted that there were effectively 2 cases, with Nova as the defendant in both cases. The appellant’s present characterisation, that it was a dispute between Civil and Benex over $463,003.93, was simply not correct.
In opening submissions dated 5 October 2023, Civil contended that the payment of $550,000 from Nova to Civil gave a valid discharge of the payment required by Nova for the work prior to March 2020. Counsel for Civil did not open the case claiming that there was ostensible authority to receive the payment as Benex’s General Manager – rather Civil contended it was receiving payment on behalf of the joint venture. Civil’s counsel did not address Benex’s claim to quantum meruit payment. Both the opening and closing written submissions, filed on behalf of Civil, focused on Civil’s goals of justifying a joint venture to retain the payments, and maintaining a right to claim payment for the post- March 2020 work.
Benex contended further that even if ground 5 of the appeal had merit, its success did not affect the validity of Judgment 3. In any event, it was open to the primary Judge to make conclusions about fraud.
Benex contended that Civil sought to raise new arguments on appeal which were not before the primary Judge referable to whether Nova’s counterclaim was dependent on the success of Benex against Nova. The Court should not entertain such new arguments being raised.
Benex contended that the primary Judge was correct in the application of the principles in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 to the facts of the case.
Insofar as Civil contended that the existence of ostensible authority vested in Mr Moseley meant that restitution should not be granted, Benex contended that Civil sought to raise an estoppel as a shield to protect itself in circumstances where it has been found that it is not entitled to payment. Equity should not allow Civil to benefit where it does not have clean hands. Further, Civil did not plead that it was acting under Benex’s authority, or that it received the funds on its behalf.

Grounds of Appeal 1, 2, 3 and 10

At the hearing, Counsel for Civil submitted that the appeal could be resolved by reference to the proposition that Nova’s payment to Civil discharged any contractual liability Nova had to Benex, to that extent there had been no “mistake” by Nova in its payment of the invoices dated 31 January 2020 and 18 February 2020. The relevant proposition on which Civil relies appeared encapsulated by grounds of appeal 1, 2, 3 and 10.
It is convenient to consider this issue before turning to the remaining grounds of appeal.
It is axiomatic that corporations require the actions of natural persons to effect dealings on their behalf. Where a natural person as agent effects a dealing on behalf of the company, and the authority of that person to effect the transaction on behalf of the company is unambiguous, no dispute arises.
Circumstances plainly change where a transaction is effected on behalf of a corporation by a natural person and the authority of that person is in question.
A body of law, derived both from the common law and statute, has developed because of the need to balance the commercial needs of companies to effectively conduct business through agents, and the requirement that third parties be able to conduct business with companies – through corporate agents – with confidence.
Relevant principles are discussed in, for example, Ford, Austin & Ramsay’s Principles of th Corporations Law (LexisNexis Butterworths, 17 ed, 2018) at [13.070]-[13.120]. A summary of the overlap between principles of actual authority, implied authority and ostensible authority can be found in the judgment of Clarke and Cripps JJA in Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132-133: An agent may have actual authority to bind a principal which is quite distinct from, but may overlap, ostensible authority. Actual authority may be express or implied. There is no evidence that Hawkins had express authority to commit the use of the liquidity reserve and the only question is whether implied actual authority or ostensible authority was established. Actual authority arises where a principal grants, and an agent accepts, authority for the agent to perform specific tasks on behalf of the principal – in short there must be a consensual agreement between the principal and agent. Notwithstanding the absence of an express agreement, the parties, that is, the principal and agent, may conduct themselves in such a way that it is proper to infer that the relevant authority has been conferred on the agent. Accordingly, where the question is whether the agent has implied authority to act in a particular way the court directs its attention to the conduct of the parties in order to decide whether the inference of authority should be drawn. Ostensible authority is quite different. The question then is whether the principal has held out the agent as having authority to act on its behalf. Obviously a principal may expressly hold out a person as its agent to act on his or her behalf in a specific transaction but usually where this occurs there will have been a grant of actual authority. On the other hand there may be no evidence of a grant of actual authority and yet the principal may have so acted as to hold out the agent as having the requisite authority. In many instances the circumstances which give rise to ostensible authority may also provide a basis for inferring an actual grant of authority. The principles are clearly explained by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502: “It is necessary at the outset to distinguish between an ‘actual’ authority of an agent on the one hand, and an ‘apparent’ or ‘ostensible’ authority on the other. Actual authority and apparent authority are quite independent of one another. Generally they co-exist and coincide, but either may exist without the other and their respective scopes may be different. As I shall endeavour to show, it is upon the apparent authority of the agent that the contractor normally relies in the ordinary course of business when entering into contracts. An ‘actual’ authority is a legal relationship between principal and agent created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties. To this agreement the contractor is a stranger; he may be totally ignorant of the existence of any authority on the part of the agent. Nevertheless, if the agent does enter into a contract pursuant to the ‘actual’ authority, it does create contractual rights and liabilities between the principal and the contractor …. An ‘apparent’ or ‘ostensible’ authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the ‘apparent’ authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract.” We have already indicated that actual authority may be implied. It is, however, important to emphasise that the authority impliedly granted by the principal to the agent must be such as could be validly granted by express agreement. Put another way, in the specific context of company law, it must be an authority whose existence is contemplated by the company's memorandum and articles of association.

Ground of Appeal 5

In ground of appeal 5, the appellant claimed that the primary Judge erred in finding that Civil, by Mr Moseley, had intentionally deceived Nova, when no allegations of fraud or related knowledge or intention had been pleaded by either Nova or Benex, and further, such issue had not been put to Mr Moseley. In submissions, the appellant pointed to findings of the primary Judge at [112], [115] and [123] of the Judgment 3.
It is settled law that allegations of fraud must be clearly pleaded and established by evidence: SZFDE v Minister for Immigration [2007] HCA 35; 232 CLR 189; Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713.
In my view, this ground is not substantiated.
First, I consider that the findings of the primary Judge in respect of Mr Moseley and his conduct fell short of findings of fraud. His Honour did not find that a fraud had been committed. The primary Judge’s findings concerning Mr Moseley were referable to his Honour’s conclusions of Mr Moseley’s credit, in the context of consideration of whether orders by way of restitution should be made. This is plain from paragraph [90] as well as [112], [115] and [123]. Issues of justice were clearly paramount in his Honour’s mind in analysis of the case: see, for example, para [121]. Adverse findings of credit do not necessarily equate to the very serious finding of fraud at common law: see, for example, the distinction drawn by Judge Baird in Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 8) [2021] FCCA 1668 at [127], [129].
Second, in light of my conclusion that no mistake was made by Nova in payment of the invoices dated 31 January 2020 and 18 February 2020, nothing now turns in this appeal on whether or not his Honour erred in the terms described by ground of appeal 5.

Ground of Appeal 8

In ground of appeal 8, Civil claimed that the primary Judge erred in finding that Civil had no interest in defending the quantum meruit claim against Nova and in denying Civil the opportunity to make further submissions on that claim. In particular, the primary Judge in Judgment 3 observed as follows: 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. … 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. …
I note in particular that the primary Judge at [12] and [13] confined the “quantum meruit claim” to be referable to a dispute between Nova and Benex only, and for that reason further submissions were required.
In submissions, the appellant contended that the primary Judge denied it procedural fairness in refusing to allow Civil the opportunity to make submissions referable to this issue, because Civil had an interest being bound by the issue estoppels on these findings, and because Civil’s liability to Nova on its counterclaim turned in part on whether Civil was unjustly enriched at the expense of Nova.

Conclusion

For the reasons given above, the appeal should be allowed. The next question is the appropriate form of orders.
The appeal the subject of these reasons is from Judgment 3. However, plainly, this litigation has been complex. Relevant findings of the primary Judge are contained in several judgments of the Supreme Court other than Judgment 3, although I note his Honour specifically stated that at least the reasons in Judgment 4 were to be read with those in Judgment 3.
The appellant has sought that the orders of the primary Judge made on 3 November 2023, orders 3 and 4 of the orders made on 8 December 2023, and the orders made on 14 December 2023 be set aside. Those orders should be set aside. However, orders in lieu were not argued with specificity by the parties in this Court. The primary Judge, who had carriage of these proceedings over several judgments, is in a proper position to make final dispositive orders, including in respect of costs of the proceedings in the Supreme Court.
Accordingly, I consider that the matter should be remitted to the primary Judge for final determination. I certify that the preceding two-hundred and fifteen [215] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:

Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd (No 2)

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