Global Investment House Pty Ltd v Murdock (No 2)

[2012] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

GLOBAL INVESTMENT HOUSE PTY LTD v MURDOCK & ANOR (No 2)

[2012] SASC 46

Judgment of Judge Lunn a Master of the Supreme Court

26 March 2012

PROCEDURE

Filing fee of $3000 paid on issue of summons - plaintiff's solicitor misled by sign in registry stating that filing fee payable by a corporation was $3000 - filing fee which was payable by a corporation which was a small business was only $2126 - plaintiff's solicitors misled by inadvertent misrepresentation of registry into paying a filing fee of $3000 - held on principles of unjust enrichment overpayment of filing fee is recoverable by the plaintiff's solicitors - direction to Registrar accordingly.

GLOBAL INVESTMENT HOUSE PTY LTD v MURDOCK & ANOR (No 2)
[2012] SASC 46

JUDGE LUNN:

Reasons on plaintiff’s application for a partial refund of the filing fee paid

1. These reasons need to be read in conjunction with my reasons of 2 February 2012[1] in which I held that there was no discretionary power in the Court to remit overpaid fees.

   [1] [2012] SASC 13.

2. On 21 February 2012 the plaintiff took out a further application FDN15 seeking a refund of the overpaid fee on the grounds that he had been misled by the Court registry into believing $3,000 had to be paid for the filing fee and not $2,160. At the time at which the plaintiff’s solicitor attended at the Registry to issue the Summons there was displayed on the counter window a sign that the fee payable for an originating process was “$3,000 for a corporation and $2,160 for an individual”.[2] The plaintiff’s solicitor only subsequently discovered that a corporation for this purpose did not include a small business.

   [2]    The Registrar has since confirmed to me that such a sign was displayed.

3. In the circumstances I am satisfied that the overpayment was caused by a mistake induced by an inadvertent misrepresentation made by the registry of the Court. Accordingly, on the authorities on unjust enrichment the plaintiff is entitled to recover the overpayment.[3] The evidence contained in the supporting affidavit FDN15 shows that the plaintiff was a small business for the purpose of the Supreme Court Regulations 2005, and thus the proper filing fee payable by it was $2,126.

   [3]    David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; Marshall v Marshall [1999] 1 Qd R 173 at 178; Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 66-68.

4. Accordingly, I direct the Registrar to repay $874 to the plaintiff’s solicitors for the overpayment of a filing fee in this matter.