Marminta P/L v French - [2003] QCA 577

SUPREME COURT OF QUEENSLAND

CITATION:

Marminta P/L v French [2003] QCA 577

PARTIES:

MARMINTA PTY LTD ACN 060 701 626
(plaintiff/appellant/cross-respondent)
v
RUSTY FRENCH
(defendant/respondent/cross-appellant)

FILE NO/S:

Appeal No 11719 of 2002
SC No 187 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

Judgment delivered 5 December 2003
Further Order delivered 24 December 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2003; 19 December 2003

JUDGES:

Williams and Jerrard JJA and Philippides J
Judgment of the Court

FURTHER ORDERS:

All applications for variation of the orders made on 5 December 2003 are dismissed 1.

Each party is to bear its own costs of the applications heard on 19 December 20032.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – UNJUST ENRICHMENT – where respondent paid land tax and rates on land as mortgagee after decision of learned trial judge and before hearing of appeal – where appeal Court ordered specific performance of agreement for appellant to purchase mortgages from respondent – whether respondent entitled to orders that appellant pay it a sum equal to the amount of taxes and rates

COUNSEL:

J F Curran for the appellant/cross-respondent
A J Morris QC for the respondent/cross-appellant

SOLICITORS:

Robert Harris & Co for the appellant/cross-respondent
Hopgood Ganim for the respondent/cross-appellant

THE COURT: On 19 December 2003 this court heard oral argument in support of the written submissions as to the form of the orders and as to costs, presented in accordance with leave granted by Order 3(c) of the orders made on 5 December 2003. In essence the respondent contended that Order 3(b) of those orders should be amended to include orders that the appellant also pay it a sum equal to the total of land tax of $123,786.13 paid by him in respect of the mortgaged land on 1 August 2003, and the $21,734.52 paid for rates due and owing on 22 June 2001, and thus after the agreement made January 2000. The respondent contended it should also have an order for the payment of interest on those amounts from the date of payment.

The land tax paid was paid after the hearing and the decision by the trial judge and before the hearing of the appeal. The respondent sought leave on its instant applications to file and read an affidavit deposing to the circumstances in which that land tax was paid, namely that the Office of State Revenue was demanding payment of that amount by it as mortgagee, presumably pursuant to the provisions of s 24 of the Land Tax Act 1915. The effect of that section is that where the Commissioner so demands a mortgagee pay land tax, the tax paid is added to the principal debt owing to that mortgagee.

Mr Morris QC, appearing for the respondent, readily conceded that the respondent had not asked on the hearing of the appeal for orders for payment of that land tax paid, whereas it could have; and that no application…

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: [2003] QCA 577
Decision Date: 5 December 2003

CaseChat Overview and Summary

The case of Marminta P/L v French involved a dispute between the appellant, Marminta P/L, and the respondent, French. The conflict arose out of a situation where French had paid land tax and rates on land as the mortgagee, following the decision of a trial judge but before the hearing of the appeal. The appeal court had subsequently ordered specific performance of an agreement for Marminta P/L to purchase the mortgages from French. The central issue before the court was whether French was entitled to orders that Marminta P/L should pay it a sum equal to the amount of the taxes and rates it had paid.

The court needed to determine whether, under the principles of equity and unjust enrichment, French could recover the amount it had paid out for land tax and rates after having been ordered to transfer the mortgages to Marminta P/L. This involved considering whether French had been unjustly enriched at the expense of Marminta P/L and if there were grounds for restitution of the paid taxes and rates. The court had to weigh the equitable considerations and the nature of the agreement between the parties against the established legal precedents regarding unjust enrichment and the specific circumstances of the case.

In its judgment, the court found that French was not entitled to the orders for reimbursement of the land tax and rates it had paid. The reasoning was that the equitable principle of unjust enrichment did not apply in this instance as the circumstances did not present a situation where Marminta P/L had been enriched at the expense of French. The court determined that the payment of the taxes and rates by French was a necessary consequence of its status as the mortgagee at the time, and there was no basis to conclude that Marminta P/L had been unjustly enriched. Consequently, the court ruled against French's claim for reimbursement.

The court's final orders were that Marminta P/L was not required to pay French the sum of the land tax and rates. This decision was based on the court's findings that French had not been unjustly enriched and that there were no grounds for restitution under the circumstances of the case.

Orders