JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: GRAY -v- LAVAN (A FIRM) [2024] WASCA 147
CORAM: BUSS P
MITCHELL JA
VANDONGEN JA
HEARD: 12 FEBRUARY 2024
FURTHER SUBMISSIONS ON 1 MARCH 2024 & 15 MARCH 2024
DELIVERED : 28 NOVEMBER 2024
FILE NO/S: CACV 5 of 2023
BETWEEN: BRUCE NATHANIEL GRAY
Appellant
AND
LAVAN (A FIRM)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CURTHOYS J
Citation: GRAY -v- LAVAN (A FIRM) [2022] WASC 417
File Number : CIV 3179 of 2018
Catchwords:
Restitution - Unjust enrichment - Failure of consideration - Existence of a 'free-standing' claim for restitution of interest representing the respondent's 'use-value' of money
Legislation:
Legal Aid Commission Act 1976 (WA)
Legal Practice Act 2003 (WA) (repealed)
Legal Profession Act 2008 (WA) (repealed)
Limitation Act 2005 (WA)
Native Title Act 1993 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | J P Moore KC & F Maher |
| Respondent | : | J K Taylor SC & S Stewart |
Solicitors:
| Appellant | : | Williams & Hughes |
| Respondent | : | Popperwell & Co |
Case(s) referred to in decision(s):
Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344
Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1
Commonwealth v SCI Operations Pty Ltd [1998] HCA 20; (1998) 192 CLR 285
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353
Driclad Pty Ltd v Federal Commissioner of Taxation [1968] HCA 91; (1968) 121 CLR 45
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] UKHL 4; [1943] AC 32
Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd [2005] NSWCA 83; (2005) 63 NSWLR 203
Golden West Resources Ltd v Maxim Litigation Consultants [2016] WASC 384
Gray v Lavan (a firm) [2022] WASC 417
Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465
Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600
Huntingdale Village Pty Ltd v Corrs Chambers Westgarth [2018] WASCA 90
Kellar & Anor v Williams [2004] UKPC 30
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560
Marsh v Baxter (No 2) [2016] WASCA 51
National Australia Bank Ltd v Budget Stationery Supplies Pty Ltd (1997) 217 ALR 365
Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1
Oil Basins Limited v Watson [2017] FCAFC 103; (2017) 252 FCR 420
Olympic Holdings Pty Ltd & Anor v Lochel & Anor [2004] WASC 61
Prudential Assurance v Commissions for Her Majesty's Revenue and Customs [2018] UKSC 39; [2019] AC 929
Redland City Council v Kozik [2024] HCA 7; (2024) 98 ALJR 544
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68;
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- AGLC
- Gray v Lavan (A Firm) [2024] WASCA 147
- Case
- [2024] WASCA 147
- Decision Date
CaseChat Overview and Summary
The court examined whether the respondent had been unjustly enriched by retaining the Taxation Settlement Sum. The court noted that for there to be unjust enrichment, there must be a failure of consideration. The court held that there was no failure of consideration as the parties had entered into a deed of settlement that specifically excluded any claim for interest. The court also held that the Settlement Deed did not remove the legal justification for the respondent to retain the Taxation Settlement Sum. The court further held that even if the Settlement Deed was equivalent to a taxation, it did not give rise to a statutory right to backdate the order for repayment of the amount taxed off the bill.
The court also considered whether Australian law recognises a restitutionary claim for interest. The court held that Australian law does not recognise a restitutionary claim for interest, and that any claim for interest must be based on contract or statute. The court noted that the appellant had not established any contractual or statutory basis for his claim for interest.
Finally, the court considered whether the appellant was entitled to compound interest. The court held that the appellant was not entitled to compound interest as there was no contractual or statutory basis for such a claim. The court held that any claim for interest must be based on simple interest.
In conclusion, the court held that the appellant was not entitled to a restitutionary award of interest on the Taxation Settlement Sum. The court dismissed the appeal and ordered that the appellant pay the respondent's costs of the action.
Orders
Orders of the court
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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
After reviewing the various authorities to which he was referred, including SCI Operations, Griffiths, Sempra Metals and Heydon v NRMA Ltd (No 2), the trial judge decided to follow Prudential Assurance. His Honour concluded that the appellant did not have any free-standing right to a restitutionary award of interest on the Taxation Settlement Sum. The appellant's claim was dismissed, and an order was made that the appellant pay the respondent's costs of the action. The appellant now appeals against the dismissal of his claim. The appellant relies on the following grounds of appeal:1.The trial judge erred in law in holding that the respondent was not unjustly enriched as there was no failure of basis. In particular, the trial judge erred in law in holding:(a)at [38] ‑ [46] and [48] ‑ [55] [of the original decision], that there was no failure of basis as the parties' entry into the 13 July 2018 deed of settlement (Settlement Deed) did not have the effect of removing the legal justification for the respondent to retain the Taxation Settlement Sum (as defined in the Settlement Deed);(b)at [43], that if the appellant's claim was accepted, every settlement could potentially lead to a claim of unjust enrichment;(c)at [47], that no unjust enrichment or failure of basis arises even if the Settlement Deed is equivalent to a taxation, since a taxation by a registrar does not give rise to a statutory right to backdate the order for the repayment of the amount taxed off the bill; and(d)at [101], that the fact that the Settlement Deed, unlike the terms of settlement in Lahoud v Lahoud [2010] NSWSC 1297, expressly carved out the Appellant's claim for interest did not distinguish Lahoud v Lahoud.2.The trial judge erred in law in [56] ‑ [88] and [92] in failing to hold that Australian law recognises a claim in restitution to interest.3.The trial judge erred in law in [69] ‑ [73], [89] ‑ [91], [92] and [103] in holding that the appellant was not entitled to an award of compound interest. Those grounds of appeal raise the following issues:(1)Was the respondent unjustly enriched by its receipt and retention of the Taxation Settlement Sum (ground 1)? (2)If the respondent was unjustly enriched by its retention of the Taxation Settlement Sum, was the appellant entitled to restitution in the form of interest on the Taxation Settlement Sum (ground 2)?(3)If the appellant was entitled to restitution in the form of interest, was he entitled to compound interest (ground 3)? These issues highlight the fact that for the appellant to succeed on the appeal, he must establish that the trial judge was wrong when his Honour concluded that the respondent had not been unjustly enriched by its receipt and retention of the Taxation Settlement Sum because the appellant had not established that there had been any failure of consideration in relation to the appellant's payment of that sum. If the first issue is answered unfavourably to the appellant, the remaining two issues, and therefore grounds 2 and 3, must also be resolved in the respondent's favour.