SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ALEXIADIS v ZIRPIADIS
[2013] SASCFC 64
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice White)
28 June 2013
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING
EQUITY - GENERAL PRINCIPLES - UNJUST ENRICHMENT - GENERAL PRINCIPLES
The respondent advanced a total of $105,251.99 to the appellant - the appellant has repaid only $15,000 - a District Court Judge held, despite the absence of any such pleading, that the respondent was entitled to restitution on the basis of a claim for money had and received - the appellant appeals against that judgment.
Held (per Kourakis CJ, allowing the appeal): The restitutionary claim was not available as a matter of law – appeal allowed - judgment set aside - respondent's claim dismissed.
Held (per Gray J, allowing the appeal): Appeal allowed – respondent's claim dismissed – inference drawn that there was an illegal purpose to the transactions and that both parties were knowingly involved in that illegality – evidence inadequate to reach any conclusion regarding the true nature of the underlying transaction – no particularity to support claim of unjust enrichment – evidence inadequate to allow any conclusion to be reached as to qualifying or vitiating factors.
Held (by White J) (dismissing the appeal): (1) The Judge did not deny the appellant procedural fairness by finding that the respondent was entitled to a restitutionary remedy. The respondent had sufficient notice at the trial that the claim may be determined on that basis.
(2) Although the Judge could not make a positive finding as to the purpose for which the monies were advanced, he did make some negative findings, which enabled some conclusions about purpose to be reached. He also found that the monies had been advanced in circumstances giving rise to an obligation to repay, and that repayment had not occurred. In these circumstances, it was open to the Judge to make a finding of unjust enrichment as the basis of the order of restitution.
(3) It is inappropriate in the present circumstances for this Court to conclude that the Judge erred by failing to find that the plaintiff advanced the monies for an illegal purpose or that he had knowledge that the defendant may use the monies for an illegal purpose, thereby precluding a restitutionary remedy.
Summary Offences Act 1953 (SA) s 41; Criminal Assets Confiscation Act 1993 (SA) s 91; Companies Act 1882 (Eng) s 131; Keith Mason, John W Carter & Gregory J Tolhurst Restitution Law in Australia Lexis Nexis Butterworth, 2008; Carter J Contract Law in Australia LexisNexis (6th Edition) 2012, referred to.
Coshott v Sakic (1998) 44 NSWLR 667; Gray v Gray (2004) 12 BPR 22; Fox v Percy (2003) 214 CLR 188, applied.
Hire Purchase Furnishings Co v Richens (1887) 20 QBD 387; Heydon v Perpetual Executors Trustees and Agency Co (WA) Ltd (1931) 45 CLR 111; Aubert…
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- Case
- [2013] SASCFC 64
- Decision Date
CaseChat Overview and Summary
The legal issues before the Full Court included whether the restitutionary claim for money had and received was available to Mr Zirpiadis as a matter of law, given it was not pleaded. The court also considered whether, in the absence of a successful restitutionary claim, judgment could be entered for Mr Zirpiadis on an alternative basis, such as contract or trust, or whether the evidence supported a claim for unjust enrichment. Furthermore, the court had to determine the nature of the underlying transactions between the parties and whether any illegality affected the enforceability of any purported agreement.
The Full Court, allowing the appeal, held that the restitutionary claim was not available as a matter of law because it had not been pleaded. Kourakis CJ concluded that the restitutionary claim was not proved. Gray J inferred that the transactions likely had an illegal purpose, with both parties knowingly involved, rendering any agreement unenforceable. Gray J also found the evidence inadequate to support a claim for unjust enrichment or to determine the true nature of the underlying transactions, noting the lack of particularity in the claims made.
Consequently, the appeal was allowed, and the judgment in favour of Mr Zirpiadis was set aside. Mr Zirpiadis's claim was dismissed.
Orders
Orders of the court
Held (per Kourakis CJ, allowing the appeal): The restitutionary claim was not available as a matter of law – appeal allowed - judgment set aside - respondent's claim dismissed.
Held (per Gray J, allowing the appeal): Appeal allowed – respondent's claim dismissed – inference drawn that there was an illegal purpose to the transactions and that both parties were knowingly involved in that illegality – evidence inadequate to reach any conclusion regarding the true nature of the underlying transaction – no particularity to support claim of unjust enrichment – evidence inadequate to allow any conclusion to be reached as to qualifying or vitiating factors.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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