Coshott Family Pty Ltd v Lyons - [2022] NSWCA 216

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coshott Family Pty Ltd v Lyons [2022] NSWCA 216
Hearing dates: 12 October 2022
Date of orders: 27 October 2022
Decision date: 27 October 2022
Before: Meagher JA at [1]
Kirk JA at [2]
Griffiths AJA at [61]
Decision:
The appeal is dismissed with costs.

Catchwords:
RESTITUTION — Nature of restitutionary liability — Common counts — Money had and received to the use of the plaintiff — Onus of proof — Money paid by plaintiff to defendant to hold subject to further directions — Where plaintiff requested repayment — Where defendant said funds were paid out pursuant to plaintiff’s directions — Whether plaintiff required to prove payments were made without authority

Legislation Cited:
Legal Profession Uniform General Rules 2015 (NSW), r 63
Legal Profession Uniform Law (NSW), ss 128, 129, 139
Uniform Civil Procedure Rules 2005, r 14.12

Cases Cited:
Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17
Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14
Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44
Chan v Eastern Blue Pty Ltd [2021] VSCA 121
Currie v Dempsey (1967) 69 SR (NSW) 116
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2003) 230 CLR 89; [2007] HCA 22
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
Martin v Andrews (1856) 7 El & Bl 1; 119 ER 1148
Martin v Pont [1993] 3 NZLR 25
Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676
Napier v Torbay Holdings Ltd [2016] NZCA 608; [2017] NZAR 108
Parry v Roberts (1835) 3 A & E 118; 111 ER 358
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68
Sims v Commonwealth of Australia [2022] NSWCA 194
Taylor v Lendey (1807) 9 East 49; 103 ER 492

Texts Cited:
CR Williams, “Burdens and Standards in Civil Litigation” (2003) 25 Sydney Law Review 165
E Bullen and S M Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed, 1868, Stevens & Sons)
FMB Reynolds, Bowstead on Agency (15th ed, 1985, Sweet & Maxwell)
GE Dal Pont, Law of Agency (3rd ed, 2014 LexisNexis Butterworths)

Category: Principal judgment
Parties:
Coshott Family Pty Ltd (Appellant)
James William Lyons (Respondent)
Representation:
Advocates:

T Hall (sol) (Appellant)

G E S Ng (Respondent)

Solicitors:

Hall Partners (Appellant)
YPOL Lawyers (Respondent)

File Number(s): 2022/00163191
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

20 May 2022

Before:

Acting Judge Kearns

File Number(s):

2021/00074000

HEADNOTE

[This headnote is not to be read as part of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWCA 216
Decision Date: 27 October 2022

CaseChat Overview and Summary

Coshott Family Pty Ltd (the plaintiff) brought an action against Lyons (the defendant) seeking the recovery of money had and received. The plaintiff alleged that it had paid funds to the defendant to hold subject to further directions, and subsequently requested repayment. The defendant contended that the funds had already been paid out in accordance with the plaintiff's directions. The matter came before the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the plaintiff bore the onus of proving that any payments made by the defendant from the funds held were made without the plaintiff's authority, or whether the onus lay on the defendant to prove that such payments were made with the plaintiff's authority.

The Court of Appeal held that in an action for money had and received, where the plaintiff establishes that money was paid to the defendant to hold subject to further directions and that the plaintiff has requested repayment, the onus shifts to the defendant to demonstrate that the money was disbursed in accordance with the plaintiff's directions. The Court reasoned that the defendant, having received the money for a specific purpose and being accountable for its disposition, must justify any payments made. The defendant failed to discharge this onus.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Coshott Family Pty Ltd v Lyons [2022] NSWCA 216
Hearing dates:	12 October 2022
Date of orders:	27 October 2022
Decision date:	27 October 2022
Before:	Meagher JA at [1] Kirk JA at [2] Griffiths AJA at [61]
Decision:	The appeal is dismissed with costs.
Catchwords:	RESTITUTION — Nature of restitutionary liability — Common counts — Money had and received to the use of the plaintiff — Onus of proof — Money paid by plaintiff to defendant to hold subject to further directions — Where plaintiff requested repayment — Where defendant said funds were paid out pursuant to plaintiff’s directions — Whether plaintiff required to prove payments were made without authority
Legislation Cited:	Legal Profession Uniform General Rules 2015 (NSW), r 63 Legal Profession Uniform Law (NSW), ss 128, 129, 139 Uniform Civil Procedure Rules 2005, r 14.12
Cases Cited:	Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 Australian Financial Services and Leasing Pty Limited v Hills Industries Limited (2014) 253 CLR 560; [2014] HCA 14 Bofinger v Kingsway Group Limited (2009) 239 CLR 269; [2009] HCA 44 Chan v Eastern Blue Pty Ltd [2021] VSCA 121 Currie v Dempsey (1967) 69 SR (NSW) 116 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2003) 230 CLR 89; [2007] HCA 22 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 Martin v Andrews (1856) 7 El & Bl 1; 119 ER 1148 Martin v Pont [1993] 3 NZLR 25 Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676 Napier v Torbay Holdings Ltd [2016] NZCA 608; [2017] NZAR 108 Parry v Roberts (1835) 3 A & E 118; 111 ER 358 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Sims v Commonwealth of Australia [2022] NSWCA 194 Taylor v Lendey (1807) 9 East 49; 103 ER 492
Texts Cited:	CR Williams, “Burdens and Standards in Civil Litigation” (2003) 25 Sydney Law Review 165 E Bullen and S M Leake, Precedents of Pleadings in Personal Actions in the Superior Courts of Common Law (3rd ed, 1868, Stevens & Sons) FMB Reynolds, Bowstead on Agency (15th ed, 1985, Sweet & Maxwell) GE Dal Pont, Law of Agency (3rd ed, 2014 LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Coshott Family Pty Ltd (Appellant) James William Lyons (Respondent)
Representation:	Advocates: T Hall (sol) (Appellant) G E S Ng (Respondent) Solicitors: Hall Partners (Appellant) YPOL Lawyers (Respondent)
File Number(s):	2022/00163191
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Date of Decision: 20 May 2022 Before: Acting Judge Kearns File Number(s): 2021/00074000