Glad Cleaning Service Pty Ltd v Vukelic - [2010] NSWSC 422

CITATION: Glad Cleaning Service Pty Ltd & Anor v Vukelic [2010] NSWSC 422
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 February & 22 March 2010

JUDGMENT DATE :
7 May 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: ORDERS:
1.There will be judgment for the plaintiffs in the sum of $98,076.48.
2. Ms Vukelic is to pay the plaintiffs' costs of these proceedings, unless Ms Vukelic wishes to advance argument for the application of some other principle.

CATCHWORDS: EQUITY - general principles - unjust enrichment - second plaintiff paid workers compensation settlement to defendant without deducting monies owed to the Commonwealth - Centrelink had issued a Recovery Notice to the second plaintiff requesting the payment of $63,603.12 before the payment to the defendant - the second plaintiff paid this sum to Centrelink after payment to defendant - now seeks restitution - mistake of fact or law made by the second plaintiff's claims officer - miscalculation of sum to be paid to the defendant - no defence to claim - judgment entered for the plaintiffs in the amount of $63,603.12 plus interest accrued up to judgment

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) s 100
Civil Procedure Rules 2005 (NSW) s 98
Evidence Act 1995 (NSW) s 36
Social Security Act 1991 (Cth) Part 3.14
Uniform Civil Procedure Rules 2005 (NSW) Pt 42.2
Workers Compensation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: ANZ Banking Group Limited v Westpac Banking Corp (1988) 164 CLR 662
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Commercial Bank of Australia Ltd v Younis [1979] 1 NSWLR 444
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Perpetual Trustees Australia Ltd v Heparu Pty Ltd (2009) NSWSC 84
Re Groth v Secretary, Department of Social Security (1995) 37 ALD 797
Wallace Smith v Secretary, Department of Family and Community Services [2004] VSC 123

TEXTS CITED: K Mason, J W Carter & G J Tolhurst Restitution Law in Australia (2nd ed) (2008) LexisNexis Butterworths

PARTIES: First Plaintiff: Glad Cleaning Service Pty Limited
Second Plaintiff: GIO General Limited (Formerly Known As GIO Workers Compensation (NSW) Limited)
Defendant: Svetislavka Vukelic

FILE NUMBER(S): SC 4835/07

COUNSEL: Plaintiffs: Mr A Combe
Defendant: No Appearance

SOLICITORS: Plaintiffs: Rankin Nathan Lawyers
Defendant: No Appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

FRIDAY 7 MAY 2010

4835/07 GLAD CLEANING SERVICE PTY LIMITED & GIO GENERAL LIMITED (FORMERLY KNOWN AS GIO WORKERS COMPENSATION (NSW) LIMITED) v SVETISLAVKA VUKELIC

JUDGMENT

1 HIS HONOUR: Glad Cleaning Service Pty Limited (“Glad”) employed Svetislavka Vukelic as a part time cleaner in 1997. On 23 August that year Ms Vukelic suffered a compensable injury to her neck, back, arms and legs in the course of her work for Glad. In October 1997 she first submitted a claim for compensation for this injury under the Workers Compensation Act 1987 (NSW). GIO…

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: [2010] NSWSC 422
Decision Date: 7 May 2010

CaseChat Overview and Summary

Glad Cleaning Service Pty Ltd and others brought a claim against Vukelic in the Federal Circuit Court of Australia. The dispute involved an issue of unjust enrichment, where the second plaintiff had paid a workers compensation settlement to the defendant without deducting monies owed to the Commonwealth. Centrelink had issued a Recovery Notice to the second plaintiff, requesting payment of $63,603.12 before the payment to the defendant. The second plaintiff complied with this notice by paying the sum to Centrelink after making the payment to the defendant. The second plaintiff sought restitution, claiming a mistake of fact or law was made by their claims officer, leading to a miscalculation of the sum to be paid to the defendant.

The court was required to determine whether there was a mistake of fact or law made by the second plaintiff's claims officer that could serve as a defence to the claim for restitution. The court also had to assess if the miscalculation by the second plaintiff's claims officer constituted a valid defence to the claim. The court found that there was no defence to the claim for restitution, as the mistake of fact or law made by the claims officer did not absolve the second plaintiff of its obligation to pay the sum owed to the Commonwealth.

The court's reasoning was based on the principle that the second plaintiff had an obligation to ensure that monies owed to the Commonwealth were deducted from the settlement before making the payment to the defendant. The court found that the mistake of fact or law made by the claims officer did not negate this obligation. The court held that the second plaintiff was unjustly enriched by the amount of $63,603.12, and as such, judgment was entered for the plaintiffs in the amount of $63,603.12 plus interest accrued up to judgment.

Orders