AJG Pty Ltd (ACN 005 420 182) v Mobile Communication Systems Pty Ltd (ACN 006 480 431)
[2015] VSCA 231
•2 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0013
| AJG PTY LTD (ACN 005 420 182) | Applicant |
| v | |
| MOBILE COMMUNICATION SYSTEMS PTY LTD (ACN 006 480 431) | Respondent |
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| JUDGES: | WARREN CJ and HANSEN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 July 2015 |
| DATE OF JUDGMENT: | 2 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 231 |
| JUDGMENT APPEALED FROM: | George & Anor v Pannuti & Anor [2014] VCC 2172 (Judge Lacava) |
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LOAN – Default – Proceeding to recover – Actual payer and receiver of loan not parties to loan agreement, but joined in proceeding as a plaintiff and defendant in addition to the persons who made the agreement – Several causes of action – Judgment in default of appearance by plaintiffs against the defendant who made the agreement – Whether election that precluded continuance of the proceeding by the payer against the other defendant who received the loan.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr J Glover | Beaumont Lawyers |
| For the Respondent | Mr K J Naish | Darrer Muir Fleiter |
THE COURT:
This is an application by AJG Pty Ltd (‘AJG’) for leave to appeal and, if leave be granted, appeal from an order made by a judge in the County Court on 18 December 2014 whereby, on an application for summary judgment brought by Mobile Communication Systems Pty Ltd (‘MCS’), the proceeding was dismissed with costs.[1]
[1]George v Pannuti [2014] VCC 2172.
The parties to the proceeding were Philip George (‘George’) and AJG as first and second plaintiffs, and Fabio Pannuti (‘Pannuti’) and MCS as first and second defendants.
Extension of time
MCS submitted that AJG’s application was filed out of time. Thus, unless time be extended the application should be refused. The submission is rejected. Examination of the file reveals that the Registry regarded the application as filed in time, and so advised AJG, which has relied on that advice. Moreover, if the application was filed late, it was only by one day; a respondent should not trouble the Court with such a trifle.
Default judgment against Pannuti
The second defendant, MCS, filed an appearance. However, the first defendant, Pannuti, did not. On 3 June 2014, the plaintiffs entered judgment in default of appearance against Pannuti. The judgment states:
1. The First Defendant pay the Plaintiffs:
(a) CLAIM $275,000.00
(b) INTEREST (from 1st May, 2013
as per paragraph 18A of the
Statement of Claim):01/05/2013 to 06/10/2013 being
159 days @ 10.5% pa on $275,000.00 $12,578.4207/10/2013 to 02/02/2014 being
118 days @ 10.0% pa of $275,000.00 $ 8,890.4103/02/2014 to 02/06/2014 being
119 days at 11.5% pa on $275,000.00 $10,310.61 $ 31,779.44(c) COSTS
·Issue fee on Writ $ 961.70
·(Item 31(a))Personal service on
First Defendant 76.00
·(Item 49) Lump sum amount for
proceeding and entry of
judgment $ 854.00·Court fee on Application for $ 315.90 $ 2,207.60
Default Judgment TOTAL $308.987.04
The reference to paragraph 18A of the Statement of Claim in the judgment for interest is erroneous as there was no such paragraph. It may be presumed that the reference was intended as paragraph A of the prayer for relief.
Summary judgment
Pannuti having made no payment under the judgment, AJG intimated that it would proceed with its claims against MCS. In response, MCS brought the application for summary judgment. The order was sought pursuant to ss 62 and 63 of the Civil Procedure Act 2010 and r 23.03 of the County Court Civil Procedure Rules 2008; under the former the question was whether the proceeding had real prospects of success, while under the latter the question was whether there was a good defence on the merits. The judge found each test satisfied. In their submissions in this Court, counsel concentrated on the substance of the issues. No point was made based on the different wording in the two provisions.
The resolution of the summons turned on whether AJG’s claims against MCS were alternative to the claims against Pannuti on which the judgment was based, or were cumulative upon those claims. The judge held that the claims were alternative, and that the entry of judgment constituted an irrevocable election to recover on the claims against Pannuti only. That being so, AJG was precluded from proceeding against MCS. Accordingly, the proceeding was dismissed.
In seeking to appeal, AJG contends that on a proper analysis of its pleading, AJG’s claims against MCS were to be understood as cumulative. Thus, no question of election arose and the order for dismissal should be set aside to permit AJG to proceed with its case against MCS.
Pleadings
After alleging incorporation the statement of claim continued with the heading ‘Liability of the first defendant’ followed by paragraphs 3–12, and then ‘Liability of the second defendant’ followed by paragraphs 13–18 and the prayer for relief.
Commencing with the pleading of the liability of the first defendant, it is alleged that –
3.The first defendant requested the first plaintiff to advance the sum of $250,000 to the second defendant on terms inter alia that the sum of $275,000 would be paid to the first plaintiff by the first defendant on 30 April 2013.
Particulars
The first defendant requested the first plaintiff orally and in writing. Insofar as the request was oral, it was constituted by discussions held at The Grain Store 7/21 Northumberland Street, Collingwood on or about 30 April 2012 wherein the first defendant detailed the requested loan on the terms alleged. Insofar as the request was in writing, it was constituted by two letters which the first defendant sent by email to the first plaintiff on 30 April 2012. Copies of the letters may be inspected at the offices of the plaintiff’s solicitors by appointment.
4.On 30 April 2012, the first defendant undertook in writing to pay the sum of $275,000 to the first plaintiff on April 30th 2013 upon presentation of that instrument (‘the undertaking’).
Particulars
The undertaking was contained in a letter dated 30 April 2012, signed by the first defendant and sent to the first plaintiff by email. A copy of the letter may be inspected at the offices of the plaintiff’s solicitors by appointment.
5.The undertaking by its terms became effective upon the second defendant’s receipt of $250,000 in cleared funds deposited into a specified bank account by cheque drawn by the first plaintiff or his nominee (‘the terms of the undertaking’).
Particulars
Terms of the bond required that the first plaintiff or his nominee deposit the cheque into the following banking account.
Beneficiary name: Mobile Communication Systems Pty Ltd
Beneficiary address: 80–82 Bell Street Heidelberg Heights, VIC 3081
Bank name: Commonwealth Bank of Australia
Bank address: 154 Upper Heidelberg Road Ivanhoe Vic 3079
BSB: 063 141
Account number: 101282696.On 30 April 2012 the first plaintiff nominated the second plaintiff to advance $250,000 to the second defendant.
Particulars
The nomination was oral and to be implied from the fact that the second plaintiff made the advance in circumstances where the first plaintiff was the sole director of the second plaintiff at material times.
7.The second plaintiff satisfied the terms of the undertaking on 30 April 2012.
Particulars
The nomination was oral and to be implied from the fact that the second plaintiff made the advance in circumstances where the first plaintiff was the sole director of the second plaintiff at material times.
It is then alleged that on 22 July 2013, George presented the written undertaking to Pannuti and demanded payment of $275,000 (paragraph 8), and that Pannuti had not paid that sum or any part thereof to George (paragraph 9).
The statement of claim continues:
10.The first defendant in trade or commerce engaged in conduct that is misleading or deceptive or is likely to mislead or deceive contrary to s 18 of the Australian Consumer Law.
Particulars
On or about 30 April 2012, the first defendant falsely represented to the first plaintiff that the second defendant had agreed to borrow the sum of $250,000 from the first plaintiff and pay 10 per centum per annum interest thereon.[2]
11.The first defendant in trade or commerce in connection with the supply or possible supply of services or in connection with the promotion of the supply or use of services made a false or misleading representation that a particular person had agreed to acquire services contrary to s 29 of the Australian Consumer Law.[3]
12.As a consequence of the misleading or deceptive conduct referred to in paragraph 10 and/or the false or misleading representation referred to in paragraph 11, the second plaintiff has suffered loss and damage.
Particulars
$250,000 was advanced by the second plaintiff to the second defendant and the sum has not been repaid.
The second plaintiff has lost interest on the sum of $250,000 since 30 April, 2012.
[2]Balance of particulars omitted.
[3]Particular were provided in the same terms as those to paragraph 10.
Liability of the second defendant
13.On 12 June 2013 the second plaintiff made demand in writing upon the second defendant with respect to the sum of $250,000 advanced by the second plaintiff to the second defendant on 30 April 2012 and interest thereon.
Particulars
The second plaintiff’s demand was made in a letter sent by its solicitors to the second defendant on 12 June 2013. …
14.On 17 June 2013 the second defendant has claimed that it has no knowledge of the said sum of $250,000 loaned to it by the second plaintiff.[4]
[4]Particulars omitted.
15.The said sum of $250,000 was paid by the second plaintiff and received by the second defendant on 30 April 2012 under a mistake of fact.
Particulars
The second plaintiff mistakenly believed that the second defendant had agreed to repay to it the sum of $250,000 and interest on 30 April 2013.
16.Alternatively, the sum of $250,000 was paid by the second plaintiff and received by the second defendant on 30 April 2012 for a consideration which has wholly failed.
Particulars
Neither the first defendant nor the second defendant has repaid any part of the sum of $250,000 advanced to it by the second plaintiff on 30 April 2012 or any interest thereon.
17.In the premises, the second defendant has had and received the said sum of $250,000 to the use of the second plaintiff.
18.Further or alternatively, the second defendant did not give valuable consideration for the sum of $250,000 which it received from the second plaintiff and holds the said sum of $250,000 on resulting trust for the second plaintiff.
Particulars
The resulting trust is implied by law in circumstances where the second plaintiff’s transfer of $250,000 to the second defendant was by way of loan and not intended to be a gift, the parties are strangers to each other and the transaction is not otherwise explained.
The statement of claim then concluded with the prayer for relief –
AND THE FIRST AND/OR THE SECOND PLAINTIFFS CLAIM FROM THE FIRST DEFENDANT:
A.$275,000, pursuant to paragraphs 8 and 9 and interest pursuant to statute from 1 May 2013;
B.Alternatively, $250,000 pursuant to paragraph 12 plus interest pursuant to statute from 30 April 2012;
C.Costs.
AND THE SECOND PLAINTIFF CLAIMS FROM THE SECOND DEFENDANT:
A.Pursuant to paragraph 17, $250,000 and interest pursuant to statute from 12 June 2013;
B.Pursuant to paragraph 18, $250,000 and interest pursuant to statute from 12 June 2013;
C.Costs.
Irregularity in judgment
It is apparent on its face that the default judgment is inconsistent with the prayer for relief insofar as AJG is concerned. Whereas judgment was entered for $275,000, that sum plus interest is claimed only by George under paragraphs 8 and 9 and paragraph A of the prayer for relief. It seems apparent that the inclusion of ‘AND/OR THE SECOND PLAINTIFF’ in the prayer for relief was for the purpose of the alternative relief in paragraph B under which AJG sought $250,000 (not $275,000) plus interest pursuant to paragraph 12.
Counsel acknowledged that the judgment was irregular insofar as it was entered in favour of AJG. But neither party has moved to set aside the judgment in favour of AJG. MCS is content as the judgment constitutes the act of election that founds its application for summary judgment. As for AJG, counsel explained that no application to set aside the judgment in favour of it had been made because it was considered likely to fail, as to which counsel referred to Sunray Irrigation Services Pty Ltd v Hortulan Pty Ltd (in liq).[5]
[5][1993] 2 VR 40.
Defence
Apart from admissions and denials, MCS admitted ‘receiving a deposit of $250,000 on or about 30 April 2012, which monies it believed were provided to its directors by or on behalf of Pannuti’. MCS alleged that it did not agree to borrow money from George, there was no agreement between it and George or AJG, and it was not obliged to pay any money to AJG.
As to the claim for money had and received to the use of AJG (in paragraph 17), MCS alleged that on receipt thereof, the monies were immediately made available to one of its directors and MCS was not aware of AJG’s claimed interest. Further, if the $250,000 was received to the use of AJG, then MCS had changed its position on the faith of the receipt; that was by reason of MCS and/or its director having fully spent the money. It is also stated that in or about March 2013, the director guaranteed a loan to Pannuti up to $150,000.
Finally, MCS denies AJG’s claim of a resulting trust.
The judge’s reasons
After referring to the statement of claim, the judge referred to MCS’s submission that the plaintiffs’ claims were alternative claims and set out the following passage in Petersen v Moloney:[6]
… Moloney or Pulbrook might be liable to the plaintiff, but both could not be. In such a case a final election to treat either as liable would preclude the plaintiff from proceeding against the other, and it is a well-settled general principle that, while the commencement of an action against one of two persons alternatively liable does not, the entry of judgment against one of them does, constitute a final and irrevocable election ….[7]
[6](1951) 84 CLR 91.
[7]Ibid 102 (emphasis in original; citation omitted).
The judge then referred to AJG’s submission that when analysed ‘the claims by the plaintiffs are broken up into separate claims against the first and second defendants by different plaintiffs’. Thus, counsel submitted, it was not inconsistent for AJG to proceed against MCS on claims for money had and received and money owing on a resulting trust. Each was a separate ‘cause of action’ the continuation of which was not inconsistent with the judgment against Pannuti. To this submission the judge said that:
The argument ignores the possibility of double recovery. It also ignores the pleading in paragraph 16 which I have set out above which, in my view, is clear indication the plaintiffs put their claims on an alternate basis.[8]
[8]George & Anor v Pannuti & Anor [2014] VCC 2172 (Judge Lacava) [20].
The judge concluded:
I accept the submissions of [MCS], although in this relatively brief judgment I perhaps do not do justice to the obvious work that has gone into them. On the facts pleaded, having given an unsecured loan, the plaintiffs seeks [sic] to recover against Mobile, which was not a party to any contract with either of them, in a situation where they already have a judgment against the party with whom one or other of them did contract. If allowed to proceed, and assuming the plaintiffs or one of them succeeded in obtaining judgment for the sum of $275,000 against Mobile, that would amount to double recovery.[9]
[9]Ibid [22].
This was the extent of the reasons. The following is to be observed.
Apart from earlier references to the statement of claim and the references to paragraph 16, the judge did not undertake an analysis of the several causes of action of George and AJG for the purpose of determining whether AJG’s claims were truly alternative or cumulative. Nor was there a consideration of the principles and practice concerning the matter of double recovery in the light of the causes of action which AJG wished to pursue.
Further, the following may be noted. First, the reasons rolled the plaintiffs together as ‘having given an unsecured loan’ whereas the pleaded case was of a loan agreement made between George and Pannuti. Secondly, the judge said that the plaintiffs sought to recover against MCS whereas only AJG sought to proceed with its claims under paragraphs 17 and 18. Thirdly, the judge said that the recovery sought was $275,000, whereas the amount sought was $250,000. Fourthly, the judge said that one or other of the plaintiffs had contracted with Pannuti, when it was not pleaded that one or other of George or AJG had contracted with Pannuti.
Appeal
While there were several grounds of appeal, in essence they came down to the question whether AJG alleged any right against Pannuti that was inconsistent with AJG’s claims against MCS. The related question was whether AJG was required to elect between the remedies sought against Pannuti and MCS. The question rests on whether the claims were alternative or cumulative.
Petersen v Moloney,[10] to which the judge referred, was a case of alternative liability. Indeed, in the sentence which immediately preceded the passage quoted by the judge, the High Court said that:
The case is clearly one of alternative liability. Either …
[10](1951) 84 CLR 91. See also Con–Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226, 243–4 [20].
In Petersen the unpaid vendor of real estate sued the purchaser and the estate agent for the price, the purchaser saying that he had paid the amount to the agent for the vendor. One or other was liable to pay the purchase price, and the claim was properly brought in the alternative. It was clearly a case in which only one of the defendants could be made liable by a judgment. But until the point of judgment was reached no question of election between defendants arose. It arose at the point of judgment because, as the High Court said:
There must not be more than one judgment where there is only one antecedent obligation.[11]
There the antecedent obligation was to pay the purchase price.
[11](1951) 84 CLR 91, 103.
The principle concerning inconsistent claims was stated to the same effect by Lord Atkin in United Australia Ltd v Barclays Bank Limited;[12] he concluded a long passage by saying that up to the stage of judgment:
… the plaintiff may pursue both remedies together, or pursuing one may amend and pursue the other: but he can take judgment only for the one, and his cause of action on both will then be merged into one.
[12][1941] AC 1, 30.
A question of election between remedies (account of profits or damages) arose in Tang Man Sit v Capacious Investments Ltd.[13]This led the Privy Council to consider, and explain, the principles concerning alternative and cumulative remedies. It is not necessary to set out what was said as to alternative remedies, but it is useful to note the statement of the rationale of the principle, viz:
The principle, however, is not rigid and unbending. Like all procedural principles, the established principles regarding election between alternative remedies are not fixed and unyielding rules. These principles are the means to an end, not the end in themselves. They are no more than practical applications of a general and overriding principle governing the conduct of legal proceedings, namely that proceedings should be conducted in a manner which strikes a fair and reasonable balance between the interests of the parties, having proper regard also to the wider public interest in the conduct of court proceedings. Thus in Johnson v Agnew [1979] 1 All ER 883, [1980] AC 367 the House of Lords held that when specific performance fails to be realised, an order for specific performance may subsequently be discharged and an inquiry as to damages ordered. Lord Wilberforce observed ([1979] 1 All ER 883 at 894, [1980] AC 367 at 398): ‘Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity.’[14]
[13][1996] 1 AC 514.
[14]Ibid 522.
Then, addressing the principles concerning cumulative remedies, the Privy Council stated:
Cumulative remedies
The procedural principles applicable to cumulative remedies are necessarily different. Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so-called rule in Henderson v Henderson. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has a power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery.[15]
[15]Ibid 522 (citation omitted). This passage was quoted with approval by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, 653–4 [39].
On the point concerning the prevention of double recovery, reference may be made to the statement of Viscount Simonds LC in United Australia Ltd v Barclays Bank Limited that if the plaintiffs in successive actions ‘were to recover the full value of the goods in each action, a court of equity could interfere to prevent them having a double satisfaction. …’.[16]
[16][1941] AC 1, 20.
It is now convenient to refer to the statement of claim in order to identify the claims that were made. It is sufficient to refer to the paragraphs without setting out their terms.
Paragraphs 3–9 plead a loan agreement made between George and Pannuti. No contract is alleged to have been made between AJG and MCS.
Nor is it alleged that in entering into the agreement George acted as agent for AJG. Nor is agency alleged in relation to the payment to MCS. In his reasons the judge stated that for the purpose of deciding the summons he assumed the facts pleaded to be made out. Hence, he had to accept the pleadings on its terms. He did not say that George acted as agent for AJG, or vice versa in relation to the payment, or suggest that an agency might be inferred. Notwithstanding, in his submissions in this Court MCS’s counsel suggested that on the pleading agency might be inferred, certainly in relation to the payment. This suggestion could not be acted on: agency was not pleaded, the facts have not been ascertained, and counsel said it was not necessary to decide the point for the purposes of the appeal.
Counsel said further that the claim by George and/or AJG in the prayer for relief was to be understood on the basis that they were agent and principal respectively. That was mere speculation.
Paragraphs 10–12 concern the separate plea that Pannuti made to George representations that constituted contraventions of the Australian Consumer Law. It is true, as AJG’s counsel noted, that no wrongful act is alleged to have been done by Pannuti to AJG. Counsel went further and submitted that AJG sought no relief against MCS. However, and as the judge noted, paragraph 12 alleges that in consequence of Pannuti’s conduct AJG lost the sum of $250,000 plus interest. Further, it was not alleged that George had suffered loss and damage as a result of the contravention. In these circumstances, it is evident enough that this claim was the subject of paragraph B in the prayer for relief and that AJG was sole claimant for this relief. Thus, if paragraphs 10–12 intended anything, it was to found a liability in Pannuti to AJG. This was the only claim that AJG made against Pannuti.
The remaining claims were all made by AJG against MCS. Paragraphs 13–16 lead to the claims in paragraphs 17 and 18 to recover the sum of $250,000 as money had and received to the use of AJG, and as held on a resulting trust. It is not to the point that MCS may or may not have good defences to these claims; the merits do not arise for consideration on the present application.
Counsel for AJG submitted that the rights asserted by these restitutionary and equitable claims were separate from and not inconsistent with the earlier claims by George and AJG. This being so, no question of election arose.
Of course, the relief sought is the same as under paragraph 12. Counsel submitted that that made no difference as AJG was not required to elect between remedies sought from Pannuti and MCS.
AJG’s counsel then referred to the judge’s conclusion that if AJG proceeded and obtained judgment ‘that would amount to double recovery’. Counsel submitted that the passages quoted earlier from Tang Man Sit v Capacious Investments Ltd[17] and United Australia Ltd v Barclays Bank Limited[18] show that the judge was wrong. The mere obtaining of a judgment would not ipso facto constitute double recovery, as those passages make clear. No more needs to be said on this point. The submissions of MCS are not overlooked, but the central issue is the question of inconsistent rights.
[17][1996] 1 AC 514.
[18][1941] AC 1, 30.
Counsel for MCS submitted that the question to be asked was whether the claims made by AJG and George were inconsistent. And, if so, should AJG be bound by an election by the entry of judgment. The answer was found in the fact that there was a single transaction agreed between George and Pannuti which provided for one payment of $250,000 and one obligation of Pannuti to repay it to George with interest. He submitted that AJG did not allege a contract for the reason that if the ‘loan contract’ is good there can be no claim by AJG, either there is a loan contract or there is not. If there is, there cannot be a good claim against MCS. If there is not, there might arguably be such a claim. As a result, the claims are inconsistent.
The next step is that AJG should be bound by the election to enter judgment on a cause of action that relied on the existence of the loan contact. The issue was whether George made an inconsistent claim and whether AJG is bound by the election to enforce that claim for judgment. For this purpose, counsel made no point that AJG’s claim against Pannuti arose only via paragraph 12 of the statement of claim and paragraph B of the prayer for relief. Indeed, counsel frankly said that he did not care that the judgment was in favour of the agent and the principal, as he referred to George and AJG. Counsel overlooked the irregularity in the judgment in favour of AJG, treating the judgment as simply being an enforcement of the ‘loan contact’.
In addressing this submission counsel placed considerable emphasis on there being, as he said, referring to the expression in Petersen v Moloney, ‘one antecedent obligation’ in the overall transaction, namely, the payment of money by Pannuti to George. It was by reference to that obligation that the transaction was to be characterised. AJG was not a party to the loan contract, and there was no basis on which it could expect to be paid.
Counsel submitted that the plaintiffs having obtained judgment for debt, pursuant to a loan contract, neither could assert rights that rely upon a fundamentally different and inconsistent state of affairs, namely that there was no enforceable loan, so that restitutionary or equitable rights might be available.
Without overlooking all that counsel said in his written and oral submissions, that is sufficient to indicate the tenor of the submissions. In particular, the present task ought not to involve, as counsel ventured into at one stage, consideration of the merits of AJG’s claims in paragraphs 17–18; such submissions are appropriate on trial or on an application concerning the tenability of a pleading as raising a good cause of action. That is not the nature of the present application.
With respect, the submissions of MCS’s counsel seek to confine the pleading narrowly to the ‘loan contract’ relying on the obligation to repay as being an antecedent obligation in the sense of the single obligation to pay the purchase price in Petersen v Moloney. Of course the statement of claim alleged that Pannuti was obliged to pay. But that cannot operate to preclude AJG from raising the restitutionary and equitable claims for relief if they are not inconsistent with the relief achieved by the entry of judgment. The relief or remedy sought may be for the same amount as the loan ($250,000), although not the amount ($275,000) that Pannuti was obliged to pay. Hence, in strict terms, AJG is not seeking, by the claims in paragraphs 17 and 18, to recover the amount payable by Pannuti under his obligation, and for which judgment has gone. They are claims that are of a different nature that arise as a matter of law in the circumstances which occurred. Further, AJG and MCS were not parties to the ‘loan contract’.
It remains to mention the reliance that the judge placed on the pleading in paragraph 16 which he regarded as a ‘clear indication the plaintiffs put their claims on an alternative basis’. His Honour did not say why it was a ‘clear indication’. The allegations made in paragraph 16 were made as being necessary for the plea of law. That, without more, did not make the plea an alternative claim in the sense that it must require an election before judgment. Reference was made earlier to the questions which counsel said required determination. Counsel for MCS asked whether the claims made by AJG and George were inconsistent. Counsel for AJG asked whether AJG alleged any right against Pannuti which was inconsistent with AJG’s claim against MCS. In the circumstances each question is answered ‘No’. That being so, no question of election arises.
For these reasons the application for leave to appeal should be allowed, the appeal be allowed, the orders of the County Court made 18 December 2014 be set aside and in lieu thereof it should be ordered that the summons be dismissed with costs. Counsel should be heard on the question of costs of the appeal.
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