Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode

Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd[2021] QSC 272

Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd[2021] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd [2021] QSC 272

PARTIES:

POINT BAY DEVELOPMENTS PTY LTD

ACN 627 498 944

(applicant)

v

PERKINS (WA) PTY LTD

ACN 008 844 862

(respondent)

FILE NO:

BS No 1315 of 2021

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2021
Supplementary written submissions: 12 October 2021

JUDGE:

Flanagan J

ORDER:

  1. The respondent pay the sum of $599,274.71 to the applicant.
  2. The Court will hear the parties as to interest and costs.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – MISTAKE – RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant unintentionally provided to the ATO the bank account details of another company, A, for payment of a GST refund due to the applicant – where the ATO paid the money to A – where the applicant was not indebted to A – where A subsequently paid the money to the respondent pursuant to a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) to discharge A’s judgment debt to the respondent – where the applicant did not intend for the money to be paid to A, or intend for the money to be used to discharge A’s judgment debt to the respondent – whether the mistake of fact caused the GST refund to be paid to A – whether the respondent was enriched at the expense of the applicant despite the respondent being a subsequent or indirect recipient of the money paid by mistake

EQUITY – GENERAL PRINCIPLES – UNJUST ENRICHMENT – DEFENCES – CHANGE OF POSITION – where the respondent was a judgment creditor – where the respondent obtained a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) directing the judgment debtor’s bank to pay funds standing to the credit of the debtor to the respondent – where funds standing to the credit of the judgment debtor had been paid to the debtor from the applicant by a mistake of fact – where, pursuant to the debt appropriation order, the bank paid out the money to the respondent – where the respondent had notice of the mistake of fact prior to receipt of the money from the bank – where the applicant seeks recovery of the money from the respondent as money had and received – where the respondent faces legal costs in obtaining a fresh debt appropriation order if the respondent is ordered to disgorge the money – where the prospects of obtaining a fresh debt appropriation order are uncertain – whether the respondent has changed its position

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17, applied

Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14, cited

Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677, considered

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48, considered

Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81, considered

Investment Trust Companies v Revenue & Customs Commissioners [2018] AC 275; [2017] UKSC 29, considered

Lahoud v Lahoud [2010] NSWSC 1297, considered

Prudential Assurance Co Ltd v Revenue & Customs Commissioners [2019] AC 929; [2018] UKSC 39, considered

Salib v Gakas [2010] NSWSC 505, considered

Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285; [2003] FCA 1025, considered

COUNSEL:

D A Skennar QC, with M J Lazinski, for the applicant
M T Hickey, with S M Derrington, for the respondent

SOLICITORS:

QC Law for the applicant
CDI Lawyers, as town agents for Jackson McDonald, for the respondent

  1. [1]
    The applicant seeks to recover the sum of $599,274.71 as money had and received by the respondent as a result of a mistake of fact.  The respondent denies that it received the money as a result of a mistake of fact and, even if it did, it is able to establish a change of position defence.

Background

  1. [2]
    The evidence in the proceeding was by way of affidavit and no deponent was required for cross-examination.  The following background is therefore uncontroversial.
  2. [3]
    Chris Pappas is the sole director of the applicant.  In June 2020 the applicant changed its name from Austpro Australia Pty Ltd to Point Bay Developments Pty Ltd.
  3. [4]
    Mr Pappas is also one of two directors of a company called Austpro Management Services Group Pty Ltd (Austpro).
  4. [5]
    The applicant maintains a National Australia Bank account and both the applicant and Austpro maintain separate Westpac bank accounts. 
  5. [6]
    The applicant’s accountants are GV Consulting & Forensics, the principal of which is Graeme Gillard.  In or about September 2020 Mr Gillard caused the applicant to lodge a business activity statement (BAS) which included a claim for a GST refund regarding land purchased by the applicant in Mackay.  The Australian Taxation Office (ATO) audited the BAS and determined that the applicant was entitled to a GST refund of $900,058.  On 19 November 2020 Mr Gillard received an email from the ATO confirming that the audit had been completed.  On the same day, to facilitate the processing of the GST refund, Mr Pappas caused an email to be sent to Mr Gillard containing what he thought to be the applicant’s Westpac bank account details.  Mr Pappas dictated the email to his personal assistant, Angela Docen.  The subject line is “Westpac account details” and the email reads:

“Hi Graeme,

The Westpac details below for the GST refund

Point Bay Developments

BSB [redacted]

ACCOUNT [redacted]

Thanks

Chris”[1]

  1. [7]
    While this email identified the applicant as being the account holder, the BSB and account number were, in fact, those of Austpro and not the applicant.  Mr Pappas swears that he mistakenly included the account details of Austpro instead of the applicant.[2]  According to Mr Pappas, he provided bank account details for Westpac as he wanted to ensure that the GST refund was not deposited into the applicant’s other bank account held with National Australia Bank.  He is not precisely sure how he included Austpro’s account details instead of the applicant’s, but he does recall reading the BSB and account number from some document or statement that would have had the word “Austpro” on it, noting that the applicant’s former name was Austpro Australia Pty Ltd and that he still often refers to the applicant by its old name.  Mr Pappas suspects that he accidentally picked up a document or a statement containing Austpro’s account details rather than the applicant’s account details.  Mr Pappas did not consciously or deliberately provide Austpro’s bank account details for the purposes of the GST refund.  The applicant was not indebted to Austpro or the respondent.  I find that Mr Pappas had no intention of directing the GST refund to be paid to Austpro’s Westpac bank account.
  2. [8]
    Mr Pappas’s evidence is unchallenged and the Court may proceed on the basis that the provision by Mr Pappas to Mr Gillard of Austpro’s Westpac bank account details rather than those of the applicant constituted a genuine mistake of fact by Mr Pappas.
  3. [9]
    Having received Austpro’s Westpac bank account details from Mr Pappas, Mr Gillard personally uploaded those details from the email through the ATO portal.
  4. [10]
    On 16 December 2020 the GST refund of $900,058 was deposited into Austpro’s Westpac bank account.  The deposit record shows that it was from the ATO and includes the applicant’s ABN number.[3]
  5. [11]
    Mr Pappas did not discover that the GST refund had gone into Austpro’s Westpac account until on or about 27 January 2021 because he does not monitor that account.  He had been waiting for the money to be credited to the applicant’s Westpac bank account.  He thought that the GST refund was delayed because of the combined effect of the ATO audit, the Christmas break and COVID-19 backlogs.[4]
  6. [12]
    On 22 December 2020 the respondent’s solicitors, Jackson McDonald, obtained a debt appropriation order (DAO) from the District Court of Western Australia pursuant to the Civil Judgments Enforcement Act 2004 (WA) (Act).  The DAO named the respondent as the judgment creditor and Austpro as the judgment debtor.  The order was directed to a third person, Westpac.  By the DAO, Westpac was ordered to pay to the respondent the amounts standing to the credit of Austpro with Westpac to a limit of $599,274.71.  The respondent was required to serve the DAO on Westpac,[5] but was not required to serve it on Austpro. 
  7. [13]
    The respondent obtained the DAO in the following circumstances.  Pursuant to an adjudication determination issued on 8 June 2020, Austpro was required to pay to the respondent by 15 June 2020 the sum of $570,705.47, together with interest, as well as 50 per cent of the cost of the adjudication.  On 16 June 2020 the respondent caused the adjudication determination to be registered as a District Court judgment.[6] 
    On 22 December 2020 the respondent obtained the DAO which was served on Westpac by ordinary post on 23 December 2020. 
  8. [14]
    On 22 January 2021 a withdrawal in the amount of $599,274.71 (the amount required to be paid under the DAO) was made from Austpro’s Westpac bank account.[7] 
  9. [15]
    On 27 January 2021, the same day that Mr Pappas became aware that the GST refund had been paid into Austpro’s Westpac bank account, Mr Gillard sent an email to Jackson McDonald on behalf of the applicant.[8]  The email advised the respondent’s solicitors that the funds in Austpro’s Westpac bank account when the amount of $599,274.71 was deducted did not belong to Austpro because a GST refund in the amount of $938,020 was banked in error as a result of incorrect bank account details being supplied to the ATO.  Mr Gillard provided Jackson McDonald with a copy of the ATO portal printout for the applicant, as well as a copy of Austpro’s Westpac statement showing the GST refund being deposited on 16 December 2020. 
    Mr Gillard’s email further stated:

“Without the banking error, Austpro would not have had sufficient funds to meet the judgment.

We request the funds be returned to Austpro or to [the applicant] … as soon as possible.

We would be pleased to provide any further information and await your prompt response.”

  1. [16]
    According to Matthew Lang, a partner at Jackson McDonald, the money the subject of the District Court judgment was paid by Westpac to Jackson McDonald’s trust account pursuant to the DAO on or about 29 January 2021.  Mr Lang exhibits to his affidavit a copy of a trust receipt which shows that the amount of $599,274.71 was receipted by Jackson McDonald on 28 January 2021.[9]
  2. [17]
    On 29 January 2021 the applicant’s solicitors, QC Law, sent a letter to the respondent’s solicitors, putting the respondent on notice that:
    1. (i)
      the sum of $599,274.71 belonged to the applicant and had been transferred into the respondent’s solicitors’ trust account as a result of an administrative error; and
    2. (ii)
      Jackson McDonald should not transfer the money to any third party, including the respondent.
  3. [18]
    The letter also required the money to be paid to QC Law’s trust account.[10]
  4. [19]
    Having not received a response from Jackson McDonald, QC Law sent a follow-up letter on 1 February 2021.  Jackson McDonald did, however, communicate by telephone with QC Law and indicated that they may transfer the funds to the respondent without further notice.[11]
  5. [20]
    By letter dated 2 February 2021 Jackson McDonald responded to QC Law, asserting that there was nothing mistaken about the payment into Jackson McDonald’s trust account by Westpac because the funds were paid pursuant to the terms of the DAO.  The letter further asserted that QC Law had provided no evidence to establish that the payment of money to Austpro was in fact a mistake rather than a deliberate decision.  The letter raised the suggestion that Austpro was seeking to use the GST refund to demonstrate its purported solvency to avoid an order for security for costs being made against it.  The letter stated:

“The lawyers for Austpro previously informed us in the context of discussions regarding documents to be produced by a director of Austpro under a means enquiry that we would be ‘surprised’ as to Austpro’s financial position.  We understood this to be a reference to Austpro having sufficient funds in its bank account to pay the moneys owing to our client.  We note that the only way Austpro could have had such available funds is for the moneys to have been intentionally paid to and then held by Austpro.”[12]

  1. [21]
    I note that Amanda Fayad, a solicitor for Austpro in its dispute with the respondent, categorically denies making any such statement to any solicitor or employee of Jackson McDonald.[13]  The respondent does not persist with this allegation.  There is now no dispute that Mr Pappas made a mistake of fact in supplying Austpro’s bank account details rather than those of the applicant. 
  2. [22]
    On 2 February 2021 QC Law again requested Jackson McDonald to preserve the sum of $599,274.71 in their trust account pending an intended application to the court for an injunction and declaration. 
  3. [23]
    At 9.42 am on 3 February 2021 QC Law sent an SMS message to Jackson McDonald foreshadowing an application and again seeking that the money continue to be held in Jackson McDonald’s trust account.[14]  On the same day at 10.39 am QC Law received an email from Jackson McDonald stating that the money had been transferred to the respondent.[15]
  4. [24]
    Austpro repaid $300,783.29 (being $900,058 minus $599,274.71) to the applicant.

The Issues

  1. [25]
    The proceedings were commenced by originating application but, on 1 July 2021, Bradley J ordered that the proceedings continue as if started by a claim under r 14(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld).  Accordingly, a statement of claim, a defence and a reply have been filed. 
  2. [26]
    The statement of claim pleads that the GST refund was paid to Austpro’s Westpac bank account under a mistake of fact in that the applicant mistakenly provided Austpro’s Westpac bank account details to the ATO, resulting in the payment of the GST refund to Austpro and, ultimately, the payment of part of those funds to the respondent.[16]  It is further pleaded that, at the time $599,274.71 was paid into Jackson McDonald’s trust account and subsequently transferred to the respondent, the applicant was not indebted to the respondent.  The applicant pleads that at no time did it intend the GST refund to be paid to Austpro or to discharge any debt owed by Austpro to the respondent or to pay the money to the respondent.[17]  These matters may be accepted.
  3. [27]
    It is pleaded that, before it was receipted into Jackson McDonald’s trust account and subsequently transferred to the respondent, Jackson McDonald and the respondent had notice that the sum of $599,274.71 belonged to the applicant.[18]  The notice to the respondent is further particularised in the reply which alleges that the respondent had notice of the applicant’s claim to the money prior to:
    1. (a)
      the money becoming its property;
    2. (b)
      the money being cleared in Jackson McDonald’s trust account; and
    3. (c)
      Jackson McDonald transferring the money to the respondent.[19]
  4. [28]
    The statement of claim pleads causation by reference to the “but for” test as follows:

“But for the mistake:

  1. (a)
    The payment of the [GST refund] to the Austpro Bank Account would not have occurred;
  1. (b)
    The Westpac Transfer [pursuant to the DAO] would not have occurred;
  1. (c)
    The Transfer [from the Jackson McDonald trust account] to the Respondent would not have occurred.”[20]
  1. [29]
    In those premises, the statement of claim pleads that the respondent has been unjustly enriched at the expense of the applicant and that the amount of $599,274.71 constitutes money had and received by the respondent.[21]
  2. [30]
    The defence alleges that, pursuant to the DAO, Westpac was required to pay to the respondent the amount standing to the credit of Austpro to a limit of $599,274.71 within seven days after the DAO was served on Westpac.  The transfer of the money by Westpac had the effect that Westpac’s debt to Austpro was reduced by an amount equivalent to the DAO funds and Austpro became disentitled from recovering the DAO funds from Westpac.[22]  It is further alleged that, on 28 January 2021, when the payment of the money by Westpac cleared to Jackson McDonald’s trust account, the money became the respondent’s property.[23]  Any notice from the applicant as to its claim to the money was ineffective because, from 28 January 2021 onwards, the money did not belong to the applicant or to Austpro but rather to the respondent.[24]
  3. [31]
    The respondent denies that the payment of the GST refund to Austpro’s Westpac bank account resulted in the payment of the money to the respondent.  It is alleged that the respondent was paid the money as a result of:
    1. (a)
      the adjudicator’s determination;
    2. (b)
      Austpro’s judgment debt;
    3. (c)
      the DAO;
    4. (d)
      Westpac determining that amounts standing to the credit of Austpro as at 22 January 2021 were (at least) in the amount of $599,274.71; and
    5. (e)
      Westpac paying the money to the respondent pursuant to the DAO.[25]
  4. [32]
    The defence otherwise alleges that the respondent was a volunteer that gave valid consideration for the receipt of the money which extinguished Austpro’s judgment debt to the respondent.[26]  As such, the respondent has not been unjustly enriched by the payment of the money.[27]
  5. [33]
    The respondent pleads that, if the applicant obtains the relief sought, the respondent will suffer detriment and be in a worse position than if it had not received the money at all.  The detriment is identified as the respondent reverting to the position of an unpaid, unsecured creditor of Austpro in respect of the judgment debt. 
    The respondent would be obliged to incur the cost of applying to the District Court in Western Australia to seek orders to reinstate the DAO against Austpro.  The outcome of such an application is uncertain and may be unfavourable to the respondent.[28]
  6. [34]
    The pleadings give rise to the following four issues:

Issue one:

Was there a mistake of fact?

Issue two:

Did the mistake of fact result in the ATO paying the GST refund into Austpro’s Westpac bank account?

Issue three:

Did the subsequent payment to the respondent pursuant to the DAO unjustly enrich the respondent at the expense of the applicant?

Issue four:

Has the respondent established a change of position?

Issue One: was there a mistake of fact?

  1. [35]
    As identified at [6] to [8] above, the evidence supports a finding that the provision by Mr Pappas to Mr Gillard of Austpro’s Westpac bank account details, instead of those of the applicant, for the receipt of the GST refund constitutes a mistake of fact by
    Mr Pappas.  At the time this mistake was made, the applicant was not indebted to Austpro, and the applicant did not at any time intend that the GST refund be paid to Austpro at all, let alone for the purposes of discharging the judgment debt as between Austpro and the respondent.  These findings are supported not only by the unchallenged evidence of Mr Pappas and Mr Gillard, but also by the combination of the following undisputed facts.  The amount paid by the ATO into Austpro’s Westpac bank account, namely $900,058, was the amount of GST refund identified in the ATO Activity Statement for the applicant.  The entry on Austpro’s Westpac bank account statement for 16 December 2020 shows that the deposit was from the ATO and it includes the applicant’s ABN number.  The respondent has withdrawn its initial submission that there is insufficient evidence to support a finding that funds paid into Austpro’s Westpac bank account on 16 December 2020 were paid as a result of a mistake.[29] 
  2. [36]
    In Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation,[30] the High Court stated:

“[R]eceipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment … .”

  1. [37]
    The present case, involving as it does a payment made under a mistake of fact, falls within the category of mistakes that, prima facie, ground a right of recovery.

Issue Two: did the mistake of fact result in the ATO paying the GST refund into Austpro’s Westpac bank account?

  1. [38]
    The identified mistake of fact is Mr Pappas, as the sole director of the applicant, causing to be provided to Mr Gillard Austpro’s Westpac bank account details, rather than those of the applicant.  No mistake was made by Mr Gillard in providing those account details to the ATO, nor was there any mistake made by the ATO in depositing the GST refund into Austpro’s Westpac bank account.
  2. [39]
    Accepting that the applicant made a mistake of fact, the question is whether that mistake caused the GST refund to be paid by the ATO into Austpro’s Westpac bank account.
  3. [40]
    In David Securities Pty Ltd v Commonwealth Bank of Australia,[31]  the majority rejected the proposition that a mistake must be “fundamental” in addition to being “causative”.  Their Honours stated:

“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.”[32]

  1. [41]
    The High Court did not expressly consider the appropriate test for causation.  In Mason & Carter’s Restitution Law in Australia,[33] the authors assert that the “but for” test of causation applies in the context of mistaken payments.  To support that proposition, they cite several English authorities, the most recent being the House of Lords’ decision in Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners.[34]   On the other hand, Edelman and Bant opine that, whilst the “but for” test applies in English law, courts in Australia directly considering the question of causation for the unjust factor of mistake and drawing an analogy with the approach taken in cases of misrepresentation have adopted the “a factor” test.[35]   They cite Salib v Gakas[36] and Lahoud v Lahoud,[37] both decisions of Ward J (as Her Honour then was) in the New South Wales Supreme Court.
  2. [42]
    In Lahoud v Lahoud,[38] Ward J simply restated what her Honour said in Salib v Gakas:

“In David Securities the High Court did not expressly address the appropriate test for causation in this context, remitting the case to the trial judge to determine whether the payments were made ‘because of’ the mistaken belief.  Nevertheless, it could be inferred from the High Court’s rejection of the requirement of fundamentality the question would turn on whether the mistake was a ‘significant’ or ‘dominant’ cause of the relevant payment.  By way of analogy in Gould v Vaggelas; San Sebastian Pty Ltd v The Minister; Henville v Walker, the test was whether the mistake was a reason for the enrichment.”[39]

  1. [43]
    However, Edelman and Bant have criticised Ward J’s inference of a requirement for a “significant” or “dominant” cause because it would “run contrary to the tenor of the High Court’s decision in David Securities”.[40]  They continue:

“… given the unanimous rejection of a test for ‘fundamental’ mistake, a test for ‘fundamental’ cause or ‘significant’ cause is unlikely to have been favoured by the High Court.  Consistently with that view, it is suggested that the reference to ‘significant’ cause or ‘material’ contribution in recent decisions is best understood as excluding factors that clearly had a negligible effect on the decision in question, rather than introducing a new substantive standard for the link required between the mistake and the enrichment.”[41]

  1. [44]
    Normatively speaking, Edelman and Bant argue that the “a factor” test is the preferable approach,[42] but the editors of Goff & Jones: The Law of Unjust Enrichment argue in favour of the “but for” test.[43]
  2. [45]
    It is unnecessary for me to resolve this debate.  In the present case, irrespective of which test of causation is applied, the inevitable conclusion is that the applicant’s mistake caused the GST refund to be deposited into Austpro’s Westpac bank account.
  3. [46]
    The incorrect account details provided by Mr Pappas were uploaded by Mr Gillard to the ATO portal and resulted in the GST refund being deposited into Austpro’s Westpac bank account.  This was in circumstances where Austpro had no entitlement to receive the funds and subsequently repaid the remaining balance of the GST refund ($300,783.29) to the applicant.  Further, the applicant was neither indebted to Austpro nor the respondent, nor did it have any intention of directing any part of the GST refund to Austpro for the purposes of it satisfying the judgment debt.  For these reasons, this is not a case where the payment would have been made notwithstanding the mistake.

Issue Three:  did the subsequent payment to the respondent pursuant to the DAO unjustly enrich the respondent at the expense of the applicant?

  1. [47]
    In David Securities, the High Court quoted with approval the following passage by Deane J in Pavey & Matthews Pty Ltd v Paul:

“[Unjust enrichment] constitutes a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff …”[44]

  1. [48]
    Likewise, in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd, Mason CJ stated:

“… Royal made the relevant payments as a result of a causative mistake of law.  In conformity with David Securities, payment in these circumstances opens the gateway to recovery where the payment results in the enrichment of the defendant at the expense of the plaintiff.”[45]

  1. [49]
    Consistent with these passages, it is well-settled that any restitutionary claim based on unjust enrichment requires proof that the enrichment came “at the expense of the plaintiff”.[46]  This requirement is easily fulfilled in simple cases but is less certain where the defendant receives mistakenly paid money indirectly (that is, via a third party).  In the present case, the respondent was not the direct recipient of the money from the ATO but rather received the amount of $599,274.71 through a third party, Austpro, pursuant to the DAO. 
  2. [50]
    In the statement of claim, the applicant pleads, through a causal analysis, that the respondent’s enrichment came at the applicant’s expense.  As outlined at [28] above, the applicant pleads causation by reference to the “but for” test, alleging that, but for the mistake, Westpac would not have transferred the money to Jackson McDonald’s trust account and the subsequent transfer to the respondent would not have occurred.  The respondent, as stated in [31] above, also pleads causation but alleges that the respondent was paid the money as a result of other matters, including the DAO.  The law, however, is not sufficiently settled to proceed solely on the basis that a causal analysis will resolve the issue of whether the respondent has been enriched at the expense of the applicant.
  3. [51]
    A useful starting point in considering the position of an indirect recipient is an article by Professor Peter Birks.[47]  His analysis was undertaken prior to the decision of the United Kingdom Supreme Court in Investment Trust Companies v Revenue & Customs Commissioners[48] (Investment Trust Companies) which is discussed below.  Professor Birks identifies the causation argument as follows:

“The causation argument, if it works, does support genuine leapfrogging.  There is genuine leapfrogging when the plaintiff can make out his case in unjust enrichment against a first recipient but wants to leap over that first recipient to attack a second or subsequent recipient.  The causal argument cuts in at that point: but for the unjust enrichment of the first recipient, the second would not have received the thing.”[49]

  1. [52]
    One difficulty in the recovery of mistaken payments from indirect recipients is the issue of proof that the enrichment passed to them:

“Where these cases are difficult, it is usually not because the doctrine is itself suspect, but because of doubts as to whether the second recipient has indeed been enriched.  The particular problem is generally the question whether the money employed by the first recipient to discharge the obligations of the second recipient has indeed effected a legal discharge, for without that discharge it cannot be said that the money has been, in the Latin phrase, in rem versum, turned to his advantage.”[50]

  1. [53]
    Professor Birks did not consider whether traceability constitutes a necessary pre-condition in establishing causation but noted that “[s]uccessful tracing can certainly sometimes support the difficult factual finding that the remoter recipient would not have received but for the earlier receipt by the first recipient”.[51]  He summarised the causation argument as follows:

“The causation argument does not require the claimant to establish an unjust factor in relation to the remote recipient.  It merely asserts that, subject to bona fide purchase and change of position, an unjust enrichment in the immediate recipient is an unjust enrichment in one who received through the immediate recipient and because of his receipt.”[52]

  1. [54]
    This causation argument has not, however, been clearly adopted in either English or Australian law where the issue is whether an indirect recipient has been enriched at the expense of the plaintiff.
  2. [55]
    In its unanimous joint judgment in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation,[53] the High Court recognised that an indirect recipient may be liable to make restitution where the initial recipient is “a mere conduit-pipe”:

“The prima facie liability to make restitution is imposed by the law on the person who has been unjustly enriched. In the ordinary case of a payment of money, that person will be the payee. However, when the person to whom the payment is directly made receives it as an intermediary (e.g., as agent for a designated principal), there may be uncertainty about the identity of the actual recipient of the benefit at the moment of payment. If the circumstances are such that the intermediary is to be seen as being himself the initial recipient of the benefit, his prima facie liability will ordinarily be displaced when he has handed the money received on to the person for whom he received it. In such a case he has, in the event, not retained ‘the benefit of the windfall’ but been ‘a mere conduit-pipe’ and ‘the only remedy is to go against the principal’.”[54]

  1. [56]
    In Investment Trust Companies, the United Kingdom Supreme Court framed the question as follows:

“Decisions concerning the question whether an enrichment was ‘at the expense of’ the claimant demonstrate uncertainty as to the approach which should be adopted.  Such tests as have been suggested have been too vague to provide clarity.  For example, in Menelaou v Bank of Cyprus plc, Lord Clarke of Stone-cum-Ebony JSC said, with the agreement of Lord Neuberger of Abbotsbury PSC, Lord Kerr of Tonaghmore and Lord Wilson JJSC, that ‘The question in each case is whether there is a sufficient causal connection, in the sense of a sufficient nexus or link, between the loss to the bank and the benefit received by the defendant.’  This leaves unanswered the critical question, namely, what connection, nexus or link is sufficient?”[55]

  1. [57]
    Lord Reed JSC (with whom the other members of the Court agreed) considered situations where a benefit is indirectly received:

“There are, however, situations in which the parties have not dealt directly with one another, or with one another’s property, but in which the defendant has nevertheless received a benefit from the claimant, and the claimant has incurred a loss through the provision of that benefit.  These are generally situations in which the difference from the direct provision of a benefit by the claimant to the defendant is more apparent than real.”[56]

  1. [58]
    His Lordship then outlined a number of such situations, including where:
    1. (a)
      an intermediary is an agent of one of the parties;
    2. (b)
      the right to restitution is assigned;
    3. (c)
      an intervening transaction itself is a sham;
    4. (d)
      a series of co-ordinated transactions are, in substance, a single transaction; and
    5. (e)
      the defendant receives from an intermediary property into which the claimant can trace an interest.
  2. [59]
    His Lordship continued:

“It has often been suggested that there is a general rule, possibly subject to exceptions, that the claimant must have directly provided a benefit to the defendant.  The situations discussed in the two preceding paragraphs can be reconciled with such a rule, if it is understood as encompassing a number of situations which, for the purposes of the rule, the law treats as equivalent to a direct transfer, in the sense that there is no substantive or real difference. …

Where, on the other hand, the defendant has not received a benefit directly from the claimant, no question of agency arises, and the benefit does not consist of property in which the claimant has or can trace an interest, it is generally difficult to maintain that the defendant has been enriched at the claimant’s expense.”[57]

  1. [60]
    In Prudential Assurance Co Ltd v Revenue & Customs Commissioners,[58] the United Kingdom Supreme Court followed its decision in Investment Trust Companies:

“Assuming for the present that an enrichment arises from having the opportunity to use money mistakenly paid, the question whether it is obtained ‘at the expense of’ the claimant can best be answered by reference to the analysis of that question in the Investment Trust case.  Lord Reed JSC explained at para 42 that:

‘the law of unjust enrichment … is designed to correct normatively defective transfers of value, usually by restoring the parties to their pre-transfer positions.’

A causal connection between the claimant’s incurring a loss (in the relevant sense) and the defendant’s receiving a benefit was not enough to establish a transfer of value.”[59]

  1. [61]
    Investment Trust Companies and Prudential Assurance appear to represent the settled position in English law on the question of indirect receipt of mistakenly paid money.  However, the authors of Mason & Carter’s Restitution Law in Australia have criticised those decisions, which are yet to be considered by an Australian superior court, as “regrettable and confusing”.[60]
  2. [62]
    Australian authority pre-dating the United Kingdom Supreme Court decisions includes Spangaro v Corporate Investment Australia Funds Management Ltd.[61]  In that case, the plaintiff brought a claim for money had and received against a defendant who was a subsequent recipient of the money.  Finkelstein J stated:

“The requirement that the defendant’s enrichment be at the plaintiff’s expense gives rise to an interesting legal issue.  A plaintiff will usually bring a claim for money had and received against the person to whom he made the payment.  Here, [the defendant] received the application money from [a third party], not [the plaintiff].  Is [the plaintiff] still entitled to maintain the claim?  Clearly, the answer is in the affirmative.  Lipkin Gorman v Karpnale Ltd is authority for this view.  There a partner of a law firm had, without the firm’s consent, drawn on the firm’s account and spent the money at a gambling club. The firm brought a claim for money had and received against the club. Because the claim was not proprietary in nature, it was not alleged that money remaining in the hands of the club belonged to the firm. The issue before the House of Lords was whether the club was enriched at the expense of the rogue partner or at the expense of the firm. The House of Lords held that the club was enriched at the expense of the firm because it had received property belonging to the firm for no consideration. According to early authority, some of which was referred to in the speeches of Lord Templeman and Lord Goff, who delivered the leading judgments, this was sufficient to found an action for money had and received against a third party.”[62]

  1. [63]
    In Lipkin Gorman v Karpnale Ltd,[63] Lord Templeman held that the following reasoning of O'Connor J dealing with stolen money in Black v S Freedman & Co applies equally to claims for money had and received:

“Where money has been stolen, it is trust money in the hands of the thief, and he cannot divest it of that character. If he pays it over to another person, then it may be followed into that other person’s hands.”[64]

  1. [64]
    Finkelstein J also referred to the following passage in Banque Belge pour l’Etranger v Hambrouk:

“[a]s the money paid into the [appellant] bank can be identified as the product of the original money, the plaintiffs have the common law right to claim it, and can sue for money had and received”.[65]

  1. [65]
    Edelman and Bant characterise the reasoning in this line of authority as being based on the principles of tracing.  That is, they are examples of where the principles of tracing have been used to identify the “transactional links” sufficient to justify the bringing of a claim in unjust enrichment against an indirect recipient of money.[66]  Such reasoning is not inconsistent with Investment Trust Companies insofar as that case is authority for the proposition that, where money in the hands of an indirect recipient is traceable to the plaintiff, the indirect recipient is, in effect, deemed to have received it directly from the plaintiff.  That reasoning can also be reconciled with Fistar v Riverwood Legion and Community Club Ltd,[67] where Leeming JA (albeit in the context of breach of trust) observed that:

“Ms Fistar pointed to no authority in support of the proposition that as an indirect recipient of the traceable proceeds of trust property, she could not be liable.  Principle confirms that an indirect recipient can be liable.  Once a volunteer becomes aware that he or she has received trust property or its traceable proceeds, his or her conscience is bound.  There is no reason to distinguish direct and indirect receipt.”[68]

  1. [66]
    By reference to Fistar, the respondent accepts that money paid under a mistake may be recovered from an indirect recipient.[69]  The respondent, however, submits that the money transferred by Westpac into Jackson McDonald’s trust account was not mistakenly transferred:

“The payment the subject of the dispute was made by Westpac, a debtor of Austpro, using Westpac’s funds held in an account to the credit of Austpro.”[70]

  1. [67]
    The respondent submits that where a bank (as agent) pays over money which has been paid to it by mistake, it does no wrong and the applicant must call on the bank’s customer, in this case, Austpro.[71]  It follows, according to the respondent, that by paying the funds to the respondent, Westpac discharged its indebtedness to Austpro.  It says that the payment to the respondent under the DAO constituted a payment by Austpro (as debtor) to the respondent (as creditor) using funds in equity belonging to a third party.[72]  The submission is that the respondent was not unjustly enriched at the applicant’s expense because the discharge of the judgment debt was good consideration for the payment.[73]  The applicant’s proper cause of action, according to the respondent, is to recover the amount from Austpro, being the true recipient of the money paid by mistake.[74]
  2. [68]
    By reference to the provisions of the Act, the respondent characterises the DAO as “a statutory redirection of a debt payable by Westpac to Austpro”.[75]  The Act provides for the enforcement of judgments given in the civil jurisdiction of Western Australian courts.  Section 3 defines “debt appropriation order” to mean an order made under s 49(2).  Pursuant to s 49(1), a judgment creditor (i.e. the respondent) may apply to the court[76] for an order (i.e. a DAO) requiring a person (i.e. Westpac) who owes an available debt to the judgment debtor (i.e. Austpro) to pay such of the available debt as will satisfy the judgment debt.  A DAO may be made by the court under s 49(2).  Pursuant to s 51(1), a DAO takes effect when it is served on the third person.  Under s 51(5), where the amount standing to the credit of a judgment debtor is in an account with a financial institution, the DAO has the effect as an irrevocable demand for payment or an irrevocable notice of withdrawal .  Section 52(2) requires a third person who pays an amount to the judgment creditor under a DAO to give the judgment debtor a written notice containing details of the amounts.
  3. [69]
    While Westpac was required to transfer the money to the respondent pursuant to the DAO and the provisions of the Act, it did so, in my view, as “a mere conduit-pipe”.[77]  I have found that Mr Pappas’s mistake of fact resulted in the ATO depositing the GST refund into Austpro’s bank account rather than the applicant’s.  Had that not occurred, the GST refund would not have been deposited into Austpro’s account and part of it would not have been the subject of the DAO.  As correctly submitted by the applicant, the respondent had no entitlement to the applicant’s money and neither did Westpac.[78]  The fact that the GST refund was initially paid into Austpro’s Westpac bank account and subsequently transferred to Jackson McDonald’s trust account does not alter the fact of the mistake.  I accept that the DAO was simply the mechanism by which the respondent received the money.
  4. [70]
    The respondent faces a further difficulty.  As I have found, the applicant did not intend to discharge Austpro’s judgment debt.  In Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd,[79] Robert Goff J identified one of the defences to a claim for money paid under a mistake of fact as including where the payment is made for good consideration:

“(1) If a person pays money to another under mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact.  (2) His claim may however fail if (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or (b) the payment is made for good consideration, in particular if the money is paid to discharge, and does discharge, a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt; or (c) the payee has changed his position in good faith, or is deemed in law to have done so.”[80]

  1. [71]
    In the present case, the applicant was not indebted to Austpro nor to the respondent and there is no evidence that, in mistakenly directing the GST refund to Austpro’s Westpac bank account, the applicant intended to discharge Austpro’s debt to the respondent.[81]
  2. [72]
    In circumstances where the money sought to be recovered was initially paid by the ATO into Austpro’s Westpac bank account, then transferred by Westpac to Jackson McDonald’s trust account and then thereafter to the respondent, the money is readily traceable.  I have already found that the mistake of fact caused the GST refund to be paid into Austpro’s Westpac bank account, without which there would not have been funds in that account to which the DAO would attach.  For these reasons, whether Issue Three is analysed by reference to considerations of causation or tracing, the result is the same.  Subject to defences, the respondent’s receipt of the money in these circumstances is such as to give offence to equity and good conscience if the respondent is permitted to retain it.[82]

Issue Four:  has the respondent established a change of position?

  1. [73]
    The respondent bears the onus of demonstrating some adverse change of position in good faith and in reliance on the relevant payment.[83]  French CJ expressed the defence in the following terms:

“Retention may not be inequitable if the recipient has changed its position on the faith of the receipt and thereby suffered a detriment.”[84]

  1. [74]
    In the same case, Gageler J described the defence of change of position as follows:

“The defence of change of position is established where a defendant proves the existence of two conditions. The first condition is that the defendant has acted (that is, done something the defendant would not otherwise have done) or refrained from acting (that is, not done something the defendant would otherwise have done) in good faith on the assumption that the defendant was entitled to deal with the payment which the defendant received. The defendant need not for the purpose of meeting this condition have acted on knowledge derived from the payer …  The second condition is that, by reason of having so acted or refrained from acting, the defendant would be placed in a worse position if ordered to make restitution of the payment than if the defendant had not received the payment at all. The detriment constituted by that difference in position need not, in every case, be financial or pecuniary. If financial or pecuniary, it need not, in every case, be established with precision. It can be an opportunity forgone. It must, in every case, be shown by the defendant to be substantial.”[85]

  1. [75]
    The necessary change of position has also been described as one which “must be legally or practically irreversible or there must be significant difficulties in reversing the change”.[86]  The respondent accepts as a matter of principle that, if the recipient has knowledge of the mistake, it would be against conscience for the recipient to use that money as their own, and a proprietary remedy is, in those circumstances, appropriate.[87]
  2. [76]
    It is evident from the facts described at [15] to [23] above that the respondent had notice of the mistake prior to the money being receipted in Jackson McDonald’s trust account from which it was subsequently transferred to the respondent.
  3. [77]
    The change of position identified by the respondent is as follows.  When Westpac transferred the funds to Jackson McDonald’s trust account, the respondent’s judgment debt against Austpro was extinguished.  If the Court orders the respondent to repay the money, it will incur “inevitable expense of having to seek orders to reinstate the Austpro Judgment Debt and apply for a new debt appropriation order against Austpro”.[88]  If the respondent is ordered to repay the money, it will be left as an unsecured creditor of Austpro.
  4. [78]
    The respondent submits that the uncertainty about whether it will be able to obtain a new DAO arises from the operation of the Act.  Section 57(1) of the Act provides that any amount paid by a third person to the judgment creditor under a DAO discharges the third person from the obligation to pay the amount to the judgment debtor and is not recoverable from the third person by the judgment debtor.  The effect of this section is that Westpac, having complied with the existing DAO, is no longer liable to Austpro.  While s 57(1) may deal with the obligations of Westpac to Austpro, it does not expressly deal with the status of the judgment debt as between Austpro and the respondent.
  5. [79]
    The respondent submits, however, that there is uncertainty as to whether it will be able to obtain a further DAO in respect of the judgment debt.  Even if the respondent is able to do so, there will be inevitable legal costs involved in obtaining a fresh order.  The respondent has not, however, provided any evidence about the cost of obtaining a fresh DAO.  Having obtained the original DAO, the respondent would be in a position to provide such evidence.  None of the matters raised by the respondent, in my view, establish a change of position.  If the money is recovered by the applicant, the respondent will revert to the position of unpaid creditor.  This simply means that the respondent will be in the same position it was in prior to the payment of the money.  This is in circumstances, as I have already found, where the respondent received notice of the mistake from the applicant’s accountant and solicitors prior to the money being receipted in Jackson McDonald’s trust account and subsequently transferred to the respondent.

Disposition

  1. [80]
    The following orders should be made:
  1. The respondent pay the sum of $599,274.71 to the applicant.
  2. The Court will hear the parties as to interest and costs.

Footnotes

[1]  Affidavit of C Pappas sworn 3 February 2021 (CD-2), exh CP-002.

[2]  Affidavit of C Pappas sworn 3 February 2021 (CD-2), paragraph 5.

[3]  Exhibit 3; Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), exh GS-002.

[4]  Affidavit of C Pappas sworn 5 October 2021 (CD-25), paragraph 22.

[5] Civil Judgments Enforcement Act 2004 (WA) s 50(2).

[6]  Pursuant to s 43 of the Construction Contracts Act 2004 (WA).

[7]  The withdrawal was described as “Reversal of credit transaction on 220121 EFGDF853”: Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), exh GS-002.

[8]  Affidavit of C Pappas sworn 3 February 2021 (CD-2), exh CP-004.

[9]  Affidavit of M J Lang sworn 22 June 2021 (CD-14), exh MJL-3.

[10]  Statement of Claim (CD-18), paragraph 14; Defence (CD-20), paragraph 14.

[11]  Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), paragraph 4.

[12]  Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), exh GS-004.

[13]  Affidavit of A Fayad sworn 5 May 2021 (CD-10), paragraph 4.

[14]  Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), exh GS-006.

[15]  Affidavit of J A Sciacca sworn 3 February 2021 (CD-4), exh GS-006.

[16]  Statement of Claim (CD-18), paragraph 18.

[17]  Statement of Claim (CD-18), paragraphs 19 and 22.

[18]  Statement of Claim (CD-18), paragraph 21.

[19]  Statement of Claim (CD-18), paragraph 21; Reply (CD-22), paragraph 18.

[20]  Statement of Claim (CD-18), paragraph 23.

[21]  Statement of Claim (CD-18), paragraph 25.

[22]  Defence (CD-20), paragraph 10(i) and (j).

[23]  Defence (CD-20), paragraph 13(a).

[24]  Defence (CD-20), paragraph 14(b).

[25]  Defence (CD-20), paragraph 18(c).

[26]  Defence (CD-20), paragraph 25.

[27]  Defence (CD-20), paragraph 25.

[28]  Defence (CD-20), paragraph 26(e).

[29]  Respondent’s submissions, paragraph 41; Respondent’s supplementary submissions, paragraph 3.

[30]  (1988) 164 CLR 662, 673 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ).

[31]  (1992) 175 CLR 353, 378 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ).

[32] David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, 379 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) (emphasis added).

[33]  K Mason, J W Carter and G J Tolhurst, Mason & Carter’s Restitution Law in Australia (LexisNexis, 4th ed, 2021) [429].

[34]  [2007] 1 AC 558.

[35]  J Edelman and E Bant, Unjust Enrichment (Hart Publishing, 2nd ed, 2016) 191.

[36]  [2010] NSWSC 505, [328] (Ward J).

[37]  [2010] NSWSC 1297, [176] (Ward J).

[38]  [2010] NSWSC 1297, [176].

[39] Salib v Gakas [2010] NSWSC 505, [328] (citations omitted).

[40]  J Edelman and E Bant, Unjust Enrichment (Hart Publishing, 2nd ed, 2016), 191.

[41]  J Edelman and E Bant, Unjust Enrichment (Hart Publishing, 2nd ed, 2016), 191-192.

[42]  J Edelman and E Bant, Unjust Enrichment (Hart Publishing, 2nd ed, 2016), 192-194.

[43]  C Mitchell, P Mitchell and S Watterson, Goff & Jones: The Law of Unjust Enrichment (Sweet & Maxwell, 9th ed, 2016) [9-63].

[44] Pavey & Matthew Pty Ltd v Paul (1987) 162 CLR 221, 256-257 (Deane J), quoted in David Securities Pty Ltd v Commownealth Bank of Australia (1992) 175 CLR 353, 378-379 (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ).

[45] Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51, 68 (Mason CJ).

[46]  See, eg, K Mason, J W Carter and G J Tolhurst, Mason & Carter’s Restitution Law in Australia (LexisNexis, 4th ed, 2021) 51, 69.

[47]  P Birks, “‘At the expense of the claimant’: direct and indirect enrichment in English law” in D Johnston and R Zimmermann (eds), Unjustified Enrichment: Key Issues in Comparative Perspective (Cambridge University Press, 2002) ch 18 (Birks Article).

[48]  [2018] AC 275.

[49]  Birks Article (n 47) 518.

[50]  Birks Article (n 47) 520.

[51]  Birks Article (n 47) 522.

[52]  Birks Article (n 47) 524.

[53] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662.

[54] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 673-674 (per curiam).

[55] Investment Trust Companies v Revenue & Customs Commissioners [2018] AC 275, [37] (Lord Reed JSC, with Lord Neuberger PSC, Lord Mance, Lord Carnwath and Lord Hodge JJSC agreeing) (Investment Trust Companies).

[56] Investment Trust Companies, [47].

[57] Investment Trust Companies, [50]-[51].

[58]  [2019] AC 929.

[59] Prudential Assurance Co Ltd v Revenue & Customs Commissioners [2019] AC 929, [68] (per Lord Reed DPSC, Lord Hodge JSC and Lord Mance, with Lord Sumption and Lord Carnwath JJSC agreeing).

[60]  K Mason, J W Carter and G J Tolhurst, Mason & Carter’s Restitution Law in Australia (LexisNexis, 4th ed, 2021) [160].

[61]  (2003) 47 ACSR 285; [2003] FCA 1025 (Finkelstein J).

[62] Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285, [50] (citations omitted).

[63]  [1991] 2 AC 548, 565-566 (Lord Templeman).

[64]  (1910) 12 CLR 105, 110 (O'Connor J).

[65] Banque Belge pour l’Etranger v Hambrouck [1921] 1 KB 321, 335-336 (Atkin LJ), quoted in Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR 285, [50].

[66]  J Edelman and E Bant, Unjust Enrichment (Hart Publishing, 2nd ed, 2016) 100-105.

[67]  (2016) 91 NSWLR 732.

[68] Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732, [64] (Leeming JA).

[69]  Respondent’s submissions, paragraph 23.

[70]  Respondent’s submissions, paragraph 44.

[71]  Respondent’s submissions, paragraph 36, citing Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 682.

[72]  Respondent’s submissions, paragraph 47.

[73]  Respondent’s submissions, paragraph 49.

[74]  Respondent’s submissions, paragraphs 50 and 51.

[75]  Respondent’s submissions, paragraph 44.

[76]  In this case, the District Court of Western Australia.

[77] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 673-674 (per curiam).

[78]  Applicant’s submissions, paragraph 32.

[79]  [1980] 1 QB 677.

[80] Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] 1 QB 677, 695.

[81] Hills Industries Ltd v Australian Financial Services & Leasing Pty Ltd (2012) 295 ALR 147, [200] (Meagher JA), cited with approval in Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, [101] (Hayne, Crennan, Kiefel, Bell and Keane JJ).

[82] Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, [70] (Hayne, Crennan, Kiefel, Bell and Keane JJ), quoting Atlantic Coast Line Railroad Co v Florida (1935) 295 US 301, 309 (Cardozo J); Applicant’s submissions, paragraph 36.

[83] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 673 (per curiam).

[84] Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, [1].

[85] Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560, [157].

[86] Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd (2008) 66 ACSR 594; [2008] WASCA 119, [202] (Buss JA).

[87] Wambo Coal Pty Ltd v Ariff (2007) 63 ACSR 429; [2007] NSWSC 589, [43] (White J).

[88]  Respondent’s submissions, paragraph 52, 53(c).

Close

Editorial Notes

  • Published Case Name:

    Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd

  • Shortened Case Name:

    Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd

  • MNC:

    [2021] QSC 272

  • Court:

    QSC

  • Judge(s):

    Flanagan J

  • Date:

    22 Oct 2021

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.