JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GRAY -v- LAVAN (A FIRM) [2022] WASC 417
CORAM: CURTHOYS J
HEARD: 27 & 28 JUNE 2022
DELIVERED : 8 DECEMBER 2022
FILE NO/S: CIV 3179 of 2018
BETWEEN: BRUCE NATHANIEL GRAY
Plaintiff
AND
LAVAN (A FIRM)
Defendant
Catchwords:
Restitution - Unjust enrichment - Interest - 'Free standing' right to interest - Compound or simple interest
Legislation:
Legal Practice Act 2003 (WA)
Result:
Claim dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | J Moore KC & F Maher |
| Defendant | : | M D Howard SC & S Stewart |
Solicitors:
| Plaintiff | : | Williams & Hughes |
| Defendant | : | Popperwell & Co |
Cases referred to in decision:
Anderson v McPherson [No 2] [2012] WASC 19; (2012) 8 ASTLR 321
Australian Financial Services and Leasing Pty Ltd v Hills [2014] HCA 14; (2014) 253 CLR 560
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
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
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
Heydon v NRMA Ltd [No 2] [2001] NSWCA 445; (2001) 53 NSWLR 600
Lahoud v Lahoud [2010] NSWSC 1297
Meerkin & Apel v Rossett Pty Ltd [No 2] [1999] VSCA 10; [1999] 2 VR 31
Northern Territory of Australia v Griffiths [2019] HCA 7; (2019) 269 CLR 1
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Prudential Assurance Co Ltd v Her Majesty's Revenue and Customers [2018] UKSC 39; [2019] AC 929
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516
Sempra Metals Ltd (Formerly Metallgesellschaft Ltd) v Inland Revenue Commissions [2008] 1 AC 561
Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669
CURTHOYS J:
Introduction
Between 1 August 2006 and 29 June 2008, the plaintiff, Dr Bruce Gray, paid $4,477,068.33 in fees to the defendant, Lavan, for the provision of legal services relating to litigation in this court and in the Federal Court of Australia.
There was no written costs agreement between Dr Gray and Lavan.
In June 2008, a dispute arose as to the amount of costs properly payable.
Dr Gray gave notice to Lavan of his intention to apply to have the costs taxed on 14 October 2015. The application for taxation was compromised on 13 July 2018 by deed of settlement (Settlement Deed), some 10 years after the last invoice for legal services was rendered.
By the Settlement Deed, the parties agreed that, between September 2006 and 29 June 2008, Dr Gray had overpaid Lavan $900,000. Lavan agreed to repay that sum to…
Continue reading Gray v Lavan (a firm)
Sign in free to access the full text
- AGLC
- Gray v Lavan (a firm) [2022] WASC 417
- Case
- [2022] WASC 417
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the respondents were entitled to compound interest on the compensation awarded for the extinguishment of native title. The respondents argued that the principle of compound interest should apply because the appellants had unjustly enriched themselves by using the land and its resources without paying the respondents interest on the compensation owed. The appellants contended that the entitlement to compound interest was not applicable because the claim was not for restitution of benefits unjustly obtained but for compensation for the loss caused by the extinguishment of native title.
The court considered the arguments and authorities on the entitlement to compound interest. The majority of the court held that there was no free-standing entitlement to compound interest in this context. They noted that the existing state of authority did not favour such a broad proposition. The court also held that the claim was not for restitution of benefits unjustly obtained but for just compensation for the loss caused by the extinguishment of native title. Therefore, the entitlement to compound interest was not applicable. The court rejected the respondents' contention and held that they were not entitled to compound interest on the compensation awarded.
The court made an order dismissing the respondents' claim for compound interest on the compensation awarded for the extinguishment of native title. The respondents were not entitled to compound interest on the compensation awarded.
Orders
Orders of the court
Full text does not contain this section.
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
The respondents relied on a line of authority said to support a free-standing entitlement to compound interest. At [34] - [36], the majority stated that such a contention relevantly faces the following difficulties and should accordingly be rejected:[20] First, in The Commonwealth v SCI Operations Pty Ltd, McHugh and Gummow JJ doubted that there is a free-standing right to interest where a defendant has been unjustly enriched by the use of a plaintiff's money at the plaintiff's expense:'Independently of their reliance upon s 51A of the Federal Court of Australia Act as the source of curial authority to award the interest they seek in these proceedings, SCI and ACI assert a 'free‑standing' right to the recovery of interest where the defendant has had the use of the plaintiff's money in circumstances which indicate an unjust enrichment at the expense of the plaintiff. The existing state of authority does not favour acceptance of such a broad proposition.The present is not a case where the assertion is that the appellant's breach of contract or negligence has caused the respondents to pay away or the appellant to withhold money and as a result the respondents have been deprived of the use of the money so paid away or withheld. Nor do the respondents seek an award of damages representing compensation for a wrongfully caused loss of their money, which is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money.It is true that in the administration of its remedies, equity followed a different path to the common law with respect to the award of interest. In cases of money obtained and retained by fraud and money withheld or misapplied by a trustee or fiduciary, the decree might require payment of compound interest. However, in Westdeutsche Landesbank Girocentrale v Islington London Borough Council, the House of Lords answered in the negative the question whether, where statutes, of which s 51A(2)(a) is a local example, provide for orders for payment of simple but not compound interest upon common law claims, equity, in its auxiliary jurisdiction, will supplement the statute by providing for an award of compound interest.In other instances, equitable relief might involve the payment of simple interest. As an element in the relief administered upon rescission of a contract under which the plaintiff had paid over moneys to the defendant, the order might require the defendant to make the repayment with interest calculated from the date of the initial payment. Relief against forfeiture by a vendor of payments under an instalment or terms contract might require repayment with interest from the dates the respective instalments were paid. An account of profits would carry interest. Conversely, a party seeking equitable relief may be obliged to do equity by the payment or repayment of moneys with interest. A purchaser who, after the date fixed for completion, seeks specific performance will be treated in equity as having been in possession from the completion date and, in general, will be required to offer the vendor interest on the purchase price from that date. However, the present litigation does not involve the administration of any equitable relief and so call for consideration of the issue whether it was unconscientious of the appellant to make the refunds on 3 June 1994 without the addition of payments on account of interest. (Footnotes omitted)Secondly, properly analysed, such authority as there now is in favour of a free-standing right of the kind contended for goes no further than recognising a restitutionary entitlement at law calculated to redress a defendant's unlawful enrichment through use of moneys which the defendant is regarded as having had and received to the use of the plaintiff [203]. The Claim Group's claim is not a claim for restitution of benefits unjustly obtained by the Northern Territory at the expense of the Claim Group. It is a claim for just compensation for the loss caused to the Claim Group by the extinguishment of native title. And the purpose of compensation is to put the Claim Group, so far as money can do, in the position in which they would have been if the native title had not been extinguished. It is not in any sense to provide restitution of benefits which it might be supposed the Crown derived by reason of the extinguishment of native title. Nor is there an analogy to be drawn between a claim for compensation for extinguishment of native title and a claim for money had and received, or with the recovery of money obtained by fraud or money withheld or misapplied by a fiduciary. As the trial judge held such if any benefit as the Northern Territory derived from the extinguishment of the native title is irrelevant.[20] Griffiths [134] - [136], [138].