Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Carpenter & Anor v Morris & Anor [2023] NSWCA 154 Hearing dates: 24 October 2022 Decision date: 05 July 2023 Before: Bell CJ at [1];
White JA at [7];
Simpson AJA at [97]Decision: (1) Appeal allowed in part.
(2) Set aside the orders of the court below made on 23 December 2021 so far as they concern the appellants and the respondents.
(3) Set aside the orders made on 1 February 2022 so far as they concern the appellants and the respondents.
(4) Within 14 days the appellants file and serve written submissions on the matters referred to at par [95].
(5) Within 14 days thereafter, the respondents file and serve written submissions on the matters referred to in para [95].
(6) Any submissions in reply be filed and served by the appellants 7 days thereafter.
Catchwords: RESTITUTION – Common counts – Money had and received to the use of the first respondent – Where second appellant and respondent conducted partnership for quarrying, marketing, and sale of gabbro – Where first respondent received additional payments out of partnership moneys from financial manager of quarry without knowledge and consent of appellants – Where respondents pleaded no defence to restitutionary liability – Whether prior opportunity to plead breach of fiduciary obligation and seek equitable remedies precludes maintenance of action for money had and received – Whether unauthorised receipt of moneys belonging to partnership by person who is not a bona fide purchaser for value without notice falls within established category of restitutionary liability – Whether unauthorised receipt by third-party of partnership moneys is a qualifying or vitiating factor – Held in absence of pleaded defence that appellants entitled to restitution of moneys received by first respondent
CONTRACTS – Implied terms – Terms implied in fact – Where appellants allege existence of two parol contracts generally relating to extraction of gabbro from quarry and marketing and sale of extracted gabbro by respondents – Where appellants allege terms implied in those contracts obliged respondents to ensure acquisition of approvals as and when necessary for conduct of quarry on land – Where commercial context inconsistent with terms of parol contracts as alleged by appellants – Whether implied term asserted by appellants necessary for reasonable or effective operation of contracts – Held that such implied term not necessary nor reasonable
Legislation Cited: Civil Procedure Act 2005 (NSW), s 63
Limitation Act 1969 (NSW), ss 14, 15
Mining Act 1992 (NSW), s 11
Mining Amendment Act 2008 (NSW), Sch 1, cll 2 and 273
Cases Cited: Attorney General v Perry (1773) 2 Comyns 481; 92 ER 1169
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; [1977] UKPCHCA 1
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 25
Calland v Loyd (1840) 6 M & W…
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- AGLC
- Carpenter v Morris [2023] NSWCA 154
- Case
- [2023] NSWCA 154
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether a prior opportunity to plead a breach of fiduciary obligation and seek equitable remedies precluded the maintenance of an action for money had and received. It also considered whether the unauthorised receipt of moneys belonging to the partnership by a person who was not a bona fide purchaser for value without notice fell within an established category of restitutionary liability, and whether such unauthorised receipt by a third party was a qualifying or vitiating factor. Additionally, the court considered whether implied terms alleged by the appellants, which obliged the respondents to ensure the acquisition of necessary approvals for the quarry's operation, were necessary for the reasonable or effective operation of the alleged parol contracts.
The court held that in the absence of a pleaded defence, the appellants were entitled to restitution of the moneys received by the first respondent. Regarding the alleged implied terms, the court found that the commercial context was inconsistent with the terms as alleged by the appellants, and that such implied terms were neither necessary nor reasonable for the operation of the contracts.
The appeal was allowed in part, and the orders of the court below made on 23 December 2021 and 1 February 2022, concerning the appellants and respondents, were set aside. The parties were directed to file written submissions on specific matters within prescribed timeframes.
Orders
Orders of the court
(1) Appeal allowed in part.
(2) Set aside the orders of the court below made on 23 December 2021 so far as they concern the appellants and the respondents.
(3) Set aside the orders made on 1 February 2022 so far as they concern the appellants and the respondents.
(4) Within 14 days the appellants file and serve written submissions on the matters referred to at par [95].
(5) Within 14 days thereafter, the respondents file and serve written submissions on the matters referred to in para [95].
(6) Any submissions in reply be filed and served by the appellants 7 days thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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