Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd

[2015] NSWCA 402

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402

Hearing dates:

7 December 2015

Decision date:

16 December 2015

Before:

Gleeson JA at [1];
Leeming JA at [2];
Emmett AJA at [57]

Decision:

Appeal dismissed, with costs.

Catchwords:

AGENCY – agent's right of reimbursement from principal – freight forwarder appointed as customs agent by financier – contract providing no liability for duties and taxes – no claim available in contract or restitution – Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 233 CLR 635 applied

 

CUSTOMS – customs duty payable by owner of goods – definition of "owner" – freight forwarder entered goods for home consumption as agent for financier – freight forwarder and financier both "owners" and both primarily liable to pay customs duty

 

JURISDICTION – District Court – whether restitutionary claim within jurisdiction – District Court Act 1973 (NSW), s 44(1)(a)

  TAXATION – GST – taxable importation – freight forwarder entered imported goods for home consumption as agent for financier – invoice and air waybill described financier as owner and consignee – whether financier "imported" the goods for purpose of making taxable importation

Legislation Cited:

A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 13-5, 13-15
Civil Aviation (Carriers' Liability) Act 1959 (Cth)
Customs Act 1901 (Cth), ss 4, 68, 165, 181, 183
District Court Act 1973 (NSW), ss 44, 127
Supreme Court Act 1970 (NSW), s 53

Cases Cited:

Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited [2000] HCA 25; 202 CLR 588
Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458
Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415; 47 NSWLR 696
Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531
Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33
Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27; 232 CLR 635
Maviglia v Maviglia [1999] NSWCA 188
Re Clune; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261
Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418
Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664

Texts Cited:

Halsbury’s Laws of England (5th ed, 2008), vol 1

Category:

Principal judgment

Parties:

Mega-top Cargo Pty Ltd (Appellant)
Moneytech Services Pty Ltd (Respondent)

Representation:

Counsel:
T Hall, solicitor (Appellant)
C D Wood, J K Raftery (Respondent)

  Solicitors:
Hall Partners (Appellant)
Berry Buddle Wilkins Lawyers (Respondent)

File Number(s):

2015/151853

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

30 April 2015

Before:

Olsson DCJ

File Number(s):

2014/245779

Judgment

1. GLEESON JA: I agree with Leeming JA.

2. LEEMING JA: The appellant, Mega-top Cargo Pty Ltd, appeals from a judgment of the District Court dismissing its claim against the respondent, Moneytech Services Pty Ltd. The claim was in the amount of $233,989.62, and its appeal is as of right: District Court Act 1973 (NSW), s 127(3).

Parties

3. Mega-top is a freight forwarder and customs agent. Pursuant to a written agreement with Moneytech, the terms of which are central to this appeal, it took delivery, as agent, of goods (mostly, clothing) carried by air from China into Australia in the period between August and December 2013. The goods were intended ultimately to be sold to the public by Mentmore Pty Ltd, an Australian company apparently involved in the garment industry. Mentmore is being wound up. That fact explains not only the litigation, but also why Mentmore has not been joined as a party.

4. Moneytech had entered into a “Confirmed Capital Agreement” with Mentmore, pursuant to which it provided finance (described in the documents as “trade and debtor finance” and in oral submissions as “inventory finance”). That agreement contained retention of title provisions. It is unnecessary for the purposes of this appeal to summarise the agreement between Moneytech and Mentmore, or to express any view as to the effectiveness of the retention of title against a liquidator. However, those provisions explain why, as will be seen below, Moneytech was consistently described in the documentation as the owner of the goods. Moneytech did not dispute that those provisions amounted to a form of security for Mentmore’s indebtedness to it.

Primary documents relating to the importation of the goods

5. In light of the nature of the findings of the primary judge and some of the submissions on appeal, it is necessary to describe with some precision the documents (the invoice, the air waybill, and the entry for home consumption) by which clothing manufactured in China was brought into Australia.

6. The following example was treated by the parties as representative. On 19 November 2013, an invoice from Jstex B and D Co Ltd, a company in Nanjing, was made out to Moneytech, although it stated that the goods were to be shipped to Mentmore. The price was US$50,478.30, for 114 cartons of clothing, and payment was by letter of credit. (Moneytech had a few months earlier caused the Commonwealth Bank of Australia to issue an irrevocable letter of credit in favour of Jstex B and D Co Ltd, which required presentation of invoices, air waybills and detailed packing lists at a specified bank branch in either Hong Kong or Shanghai.)

7. An air waybill issued by China Eastern Airlines dated 19 November 2013 described 114 cartons of cotton and rayon clothing that were flown, freight prepaid, from Shanghai to Sydney on MU561. The waybill stated that the consignee was Moneytech, although it gave Mentmore’s address. The freight charges were based on a weight of 1,035 kg.

8. The goods were entered for home consumption with Australian Customs by Mega-top as agent for Moneytech. The customs entry recorded the same invoice number and referred to the same weight of goods (1,035 kg) arriving on MU561 on 21 November 2013. Customs duty was calculated as $5,383.16 and GST as $6,486.83 (and other charges as $55.20) using an exchange rate as at 20 November 2013.

9. The evidence established that Mega-top paid a total of $233,989.62 in customs duty, GST, freight charges, customs cartage charges, local handling charges and airline terminal fees in the period of August to December 2013. The overwhelming majority of the payments were customs duty and GST. Some of the earlier shipments were made to another company, Bleach Pty Ltd, which Mentmore seems to have acquired. No party suggested that anything turned on this.

10. Mega-top originally invoiced Mentmore for the charges it had paid. However, receivers were appointed to Mentmore in December 2013 and a liquidator in May 2014. The evidence established that, for a time, Mega-top asserted a lien over the goods and insisted on retaining possession until the amounts it had paid had been reimbursed to it. Thus, after receivers had been appointed, it wrote, “Release of the stock will be conditional upon payment of outstanding to Megatop cargo”. The primary judge found that “as a matter of fact that was not true”. Nothing turns on this.

11. Subsequently, Mega-top reissued its invoices to Moneytech. When Moneytech failed to pay, it commenced these proceedings. The Court was told, without objection, that the goods were ultimately released by Mega-top to the liquidator of Mentmore, and have been sold.

Letter of 7 August

12. It was common ground that the following letter sent by Moneytech to Mega-top, copied to Mentmore, erroneously dated 7 August 2012 but in fact sent on 7 August 2013, was contractual. The letter was in the following terms:

“Dear Jim,

RE: Authorisation and Acknowledgement of Trading Conditions

With reference to your letter entitled 'Authorisation and Acknowledgement of Trading Conditions', I confirm that Moneytech Services Pty Ltd (‘Moneytech’) authorises Mentmore Pty Ltd and/or Megatop Cargo Pty Ltd or its nominees and/or sub agents to act as our Customs Agent for the purposes of the Customs Act 1901.

Moneytech accepts no liability for any freight costs, logistics costs, other costs, duties or taxes payable relating to the delivery or acceptance of any freight. All taxes, duties, and costs should be payable by Mentmore Pty Ltd, whom Moneytech understands has a direct relationship with Megatop Cargo Pty Ltd.

Please sign this letter by return as a confirmation you accept and understand the above.”

13. The letter was signed by Mr Jim Farrugia on behalf of Mega-top and returned to Moneytech. Consistently with its heading and first paragraph, the letter attached an authorisation by Moneytech for Mega-top to act as its customs agent in accordance with s 181 of the Customs Act 1901 (Cth).

14. In light of the way the appeal was conducted, it is unnecessary to say anything more as to the trading terms.

Reasons of the primary judge

15. The primary judge gave ex tempore reasons dismissing Mega-top’s claim immediately following submissions. Her Honour referred to the submission that a Jones v Dunkel inference should be drawn from the failure to call Mr Farrugia, and said that it “has some force”. Her Honour also referred to contemporaneous emails including one in which Mega-top claimed that it was “owed in excess of $230,000, which consists mostly of duties and GST paid out on behalf of Mentmore”. The primary judge referred to the letter of 7 August reproduced above, and the standard conditions of trade, including two (conditions 16 and 23) on which Mega-top placed reliance at trial, although not on appeal. Her Honour then addressed submissions resembling those repeated on appeal, to the effect that because federal legislation placed the obligation to pay customs duties on the owner and GST on the importer, Mega-top was entitled to recover the amounts paid. Her Honour rejected those submissions. She said that Moneytech was “in the business of supplying financial services to Mentmore”, and that:

“for reasons of expedience it was nominated on the relevant forms as the importer, but that was the end of it. It had no other interest in the goods, it did not own them, it had no interest in them, it certainly was not going to resupply them or use them in any other way”.

16. By reference to a ruling from the Australian Taxation Office, the primary judge concluded that Moneytech was not the importer.

17. However, her Honour went on to address the letter of 7 August, and concluded:

“Accordingly, it follows that it was a term of the contract, as I find it, that Moneytech had no liability to pay the taxes, there was no contractual indemnity or other right pursuant to which the plaintiff could demand repayment of those taxes from Moneytech. The only cause of action for Mega-top, unfortunately, was against Mentmore.”

18. Finally, her Honour dealt with Mega-top’s alternative case, described as “generally in respect of unjust enrichment and other equitable remedies, including constructive trust and restitution”. Her Honour said that she was not satisfied that the Court had jurisdiction to deal with those matters, but in any event concluded that “it cannot be demonstrated by the plaintiff that it would be unjust for Moneytech not to pay the moneys that it seeks”. Her Honour concluded that:

“it does not seem to me that the plaintiff has demonstrated that there is an injustice that would warrant the equitable jurisdiction of this Court, such as it is, to be exercised.”

The parties’ submissions on appeal

19. Mega-top abandoned its case based on restitution (and indeed, everything other than a case based on contractual construction) at the commencement of the appeal.

20. Mega-top observed that it was wrong to place any regard on its failure to call Mr Farrugia, this being a case of contractual construction turning on written documents. It said that it did not rely on its trading conditions for the purpose of the appeal, but submitted that the primary judge had misconstrued the letter reproduced above. It gave close attention to the two substantive paragraphs of the 7 August letter.

21. Mega-top submitted that the first paragraph of the letter confirmed that Moneytech appointed Mega-top as its agent. It then focussed on the second sentence of the second paragraph, and said that the concluding language, “whom Moneytech understands has a direct relationship with Megatop Cargo Pty Ltd”, was non-contractual. It relied on the fact that those words were in terms of an understanding, rather than making provision for rights or obligations, and that they referred to the position of a third party. Mega-top then submitted that the balance of the second sentence was likewise non-contractual. It focussed on the words “should be payable”, which again fell short of a provision for a right or obligation as between the parties. It then invited the Court to find that the first sentence was insufficiently clear to exclude Mega-top’s right to recover amounts paid by it for the benefit of Moneytech in the event of Mentmore’s insolvency. It added that, as a matter of law, the words of the first sentence were insufficient to prevent the owner and importer, Moneytech, from incurring a liability to pay customs duty and GST.

22. However, Mega-top conceded that if the first sentence of the second paragraph bore its literal meaning, its appeal would fail.

23. For its part, Moneytech contended for a literal construction of the first sentence of the second paragraph of the 7 August letter. In oral submissions, it added that it was neither an owner nor an importer for the purposes of the Customs Act or the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”), and relied on the findings of the primary judge to that effect. However, when pressed on these points, it accepted (or came close to accepting) that in accordance with the documents lodged with Australian Customs, it was both the owner of the goods for the purposes of the Customs Act and that, by its agent, it had entered them for home consumption.

Resolution of the appeal

24. “An ex tempore judgment should not be picked over”, as Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 at [1], a statement which this Court has frequently reiterated (for example, in Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 at [91]). However, making all allowance for the pressures of a judge determining a matter expeditiously immediately after it was heard, it must be said that Mega-top was correct to submit that most of her Honour’s reasons disclose error.

25. First, Mega-top was correct to observe that its case turns on contractual construction, and that there was no occasion for any Jones v Dunkel inference to be drawn. However, although her Honour accepted Moneytech’s submission in this regard, it played no part in her Honour’s reasons, unless (perhaps) it was implicitly an element in her conclusion that there was nothing “unjust” in denying Mega-top’s restitutionary claim. I return to this below.

26. Secondly, Mega-top was critical of the finding that Mentmore, and not Moneytech, owned the goods. Mega-top observed that Moneytech was described, consistently throughout the documentation between manufacturer, carrier, financier and ultimate purchaser, as the owner of the imported goods. The invoices were made out to Moneytech, the air waybills described Moneytech as the consignee, and the entries for home consumption described Moneytech as the owner.

27. The air waybill is prima facie evidence of the conditions of carriage by air: see Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11; 216 CLR 418 at [25] and [134]. The consignee has rights under the Civil Aviation (Carriers' Liability) Act 1959 (Cth) in the event of loss or damage to goods during carriage: see Emery Air Freight Corporation v Merck Sharpe & Dohme (Aust) Pty Ltd [1999] NSWCA 415; 47 NSWLR 696 at [16]. As will be seen below, the entry for home consumption likewise has important legal consequences for the person described as the owner of the goods.

28. The fact that it may have been intended by all parties that Moneytech would deliver the goods it had purchased from the Chinese supplier, and thereby confer title to them, to Mentmore in accordance with the terms of the financing agreement between those parties, does not stand in the way of what is apparent from all of the documents, and contradicted by none of them, namely, that Moneytech owned the goods at the time they were imported.

29. Yet the primary judge considered that Mentmore was the owner, and that it was only for reasons of “expedience” that Moneytech was so described. A similar submission was advanced on appeal. But Moneytech did not submit that the invoices, or the formal documents submitted on its behalf to Customs, or the series of air waybills pursuant to which the goods were flown to Australia, were shams. This is a case (like many others) where there is nothing to suggest that the parties in their written instruments did not mean what they said, or did not say what they meant: cf Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited [2000] HCA 25; 202 CLR 588 at [35]. It must follow that the terms of the documents referred to above are to be taken to embody the parties’ imputed intentions, and that, contrary to the findings by the primary judge, Moneytech owned the goods at the time they were imported.

30. Thirdly, Mega-top pointed to the wider definition of “owner” under the Customs Act, and the different provisions under the GST Act, imposing liability for customs duty and GST respectively. Both those regimes turn upon the entry of the goods for home consumption by Mega-top expressly as agent for Moneytech.

31. The regime governing the importation, entry for home consumption, and release from the control of Australian Customs is summarised in Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [3]-[7] and by this Court in Chief Executive Officer of Customs v Tony Longo Pty Ltd [2001] NSWCA 147; 52 NSWLR 458 at [110]-[117]. For present purposes, it suffices to observe that the Customs Act defines a range of persons all of whom are primarily liable to pay tax. Section 4 defines “Owner” as follows:

“Owner in respect of goods includes any person (other than an officer of Customs) being or holding himself or herself out to be the owner, importer, exporter, consignee, agent, or person possessed of, or beneficially interested in, or having any control of, or power of disposition over the goods.”

32. Moreover, s 183(1) provides that:

“(1) Where a person is, holds himself or herself out to be or acts as if he or she were the agent of an owner of goods for the purposes of the Customs Acts, that person shall, for the purposes of the Customs Acts (including liability to penalty), be deemed to be the owner of those goods.”

33. Thus Mega-top was itself an “owner” for the purposes of the Customs Act on at least three bases: as the agent of Moneytech, as a person possessed of the goods, and because it held itself out as Moneytech’s agent. Section 68 obliged the “owner” to enter the goods for home consumption or warehousing. In the present case, it was common ground that all the goods were entered for home consumption. Customs duty was payable, and it was paid by Mega-top.

34. Customs duty is a debt to the Commonwealth, recoverable at any time in any court of competent jurisdiction, from an owner: see Thiess at [8] and s 165 of the Customs Act. As Mega-top submitted, the Customs Act creates a scheme whereby a number of persons are primarily liable to pay duty, and which leaves it to those parties commercially involved in the importation to allocate the ultimate burden of paying that duty amongst themselves.

35. It is therefore plain beyond argument that, for the purposes of the Customs Act, both Mega-top and Moneytech were “owners” and both were primarily liable to pay customs duty.

33. Fourthly, Mega-top criticised the finding by the primary judge that Moneytech was not the importer, for the purpose of GST, on the basis of evidence that Moneytech was not in the business of selling clothing. Again, the criticism is sound.

34. As far as GST is concerned, GST is payable in respect of taxable importations in accordance with Pt 2-3 (especially, ss 13-5 and 13-15) of the GST Act. Section 13-5(1) provides that:

“(1) You make a taxable importation if:

(a) goods are imported; and

(b) you enter the goods for home consumption (within the meaning of the Customs Act 1901).”

38. As noted above, Mega-top entered the goods for home consumption, as agent for Moneytech. It followed that Moneytech was primarily liable to pay GST on the goods as a taxable importation. The primary judge relied on the ruling, rather than the Act, to reach the contrary conclusion. However, the primary judge relied on the introductory paragraphs of the ruling (GST 2003/15), and appears not to have been taken to the later paragraph in the same ruling which is squarely on point:

“197. If an entity importing goods into Australia authorises an intermediary such as a freight forwarder, customs broker or other party to undertake the entry for home consumption of the goods on its behalf, thereby binding the principal to the legal effects of that transaction, the principal is the entity liable to pay the GST. The principal makes the taxable importation.”

39. For those reasons, the primary judge was wrong to conclude that Moneytech was not the owner of the goods at general law, was wrong to conclude that it was not the “owner” for the purposes of the Customs Act, and wrong to conclude that it was not the importer liable to pay GST when the goods were entered for home consumption.

40. It follows from the foregoing that Moneytech was primarily liable to pay both customs duty and GST. But Mega-top in fact paid the amounts owed. It did so expressly as Moneytech’s agent. The question which is central to this appeal concerns the way in which the parties treated the secondary liability as amongst themselves and Mentmore to reimburse Mega-top for amounts of taxes and other charges paid by it.

41. As Mega-top submitted, an agent ordinarily has rights of indemnity and reimbursement in respect of expenses incurred by it for its principal. However, those rights are subject to their being excluded by any express contractual terms governing the relationship between principal and agent. The position is stated in Halsbury’s Laws of England (5th ed, 2008), vol 1, para 111 (citations omitted):

“The relation of principal and agent raises by implication a contract on the part of the principal to reimburse the agent in respect of all expenses, and to indemnify him against all liabilities, incurred in the reasonable performance of the agency, provided that such implication is not excluded by the express terms of the contract between them”.

42. The exclusion of the agent’s rights of indemnity and reimbursement is what is established by the letter dated 7 August, which accompanied the very document by which Moneytech appointed Mega-top as its agent. That letter is unambiguous. The words “Moneytech accepts no liability for any ... duties or taxes” have only one meaning. They displace the ordinary position that an agent may be reimbursed by its principal for expenses incurred by it on behalf of its principal.

43. Read in the context of the appointment of a customs agent, the operation of the sentence is clear. The customs agent would inevitably be treated as an “owner” for the purposes of the Customs Act, by reason of ss 4 and 183(1). The customs agent would, as a matter of law, be one of a number of “owners” primarily liable to pay customs duty. The customs agent would, as a matter of practice, make payments of customs duty and GST and other charges. Ordinarily, an agent would be entitled to be reimbursed by its principal for payments made within the scope of its authority. However, contrary to the ordinary position, Mega-top and Moneytech created an agency relationship in respect of which Moneytech’s secondary liability to reimburse its agent was extinguished, such that Mega-top could only look to Mentmore for reimbursement. The second sentence of the second paragraph of the letter dated 7 August is thus to be read as explaining the reason for the (unusual) abrogation of the ordinary rights enjoyed by an agent effected by the first sentence.

44. Of course, the letter embodying the commercial terms on which Mega-top was prepared to act as customs broker for Moneytech could do nothing to displace the primary obligations that both parties owed to pay customs duties. Those obligations were derived from federal legislation binding on both parties. However, contrary to Mega-top’s submissions, that does not mean that the first sentence of the second paragraph is inutile. It is to be read as excluding the secondary liability, as between the two parties, as to which would ultimately bear the burden of the taxes and charges.

45. That is sufficient to resolve the entirety of the appeal. However, it is convenient to indicate why Mega-top was correct to proceed on the basis that if it failed on contract it must also fail on restitution. This is not a case where Moneytech’s ultimate success turned upon a poor forensic decision by Mega-top when the appeal was heard.

46. The primary judge was, with respect, incorrect to form the view that she lacked jurisdiction to deal with a restitutionary claim. She was wrong to treat it as an equitable claim.

47. The gravamen of the pleading alleges a claim in debt arising from the terms of the contract between Mega-top and Moneytech, or alternatively arising out of the fact that Mega-top as agent paid taxes and charges on behalf of Moneytech. There are two qualifications to that. The first is that one paragraph in the pleading alleges that “the entitlement to GST ... is a credit, the value or amount of which it holds beneficially for Megatop”. The second is that the statement of claim seeks, in the alternative, equitable compensation. Neither the allegation of beneficial ownership nor the claim for equitable compensation would have withstood a strike-out application, and neither appears to have been advanced by Mega-top in any way at the trial. Those matters do not distract from essential accuracy of the description of the causes of action as described in Mega-top’s written submissions at trial:

“Quite apart from principles of agency, the obligation for Moneytech to make restitution to Megatop is a common law obligation, arising from the fact of receipt of the payment itself.”

48. Mega-top’s claim for reimbursement of amounts paid by it as agent of, or for the benefit of, Moneytech, was a common law claim. It was, as French J observed in Re Clune; Ex parte Verge v Isabella Nominees Pty Ltd (in liq) (1988) 14 ACLR 261 at 266, either a claim in contract or quasi-contract. Mega-top’s claim to be repaid $233,989.62 was therefore an action within the jurisdictional limit of the District Court. That court’s jurisdiction is relevantly defined by s 44(1) of the District Court Act, which (omitting exclusions not presently relevant) is as follows:

“[T]he Court has jurisdiction to hear and dispose of the following actions: (a) any action of a kind (i) which, if brought in the Supreme Court, would be assigned to the Common Law Division of that Court ...”.

49. Section 44(1)(a) is to be construed in the manner indicated by Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; 231 CLR 531 at [45], which is to say, historically, as at 2 February 1998. Had the claim been brought in the Supreme Court in 1998, it would have been assigned to the Common Law Division, because claims for contract or quasi-contract were not specifically assigned to any other Division of the Supreme Court, and so, pursuant to s 53(4) of the Supreme Court Act 1970 (NSW) as it then stood, were assigned to the Common Law Division: see Forsyth at [29].

50. The primary judge was also wrong to reject Mega-top’s restitutionary claim because it was not shown to be “unjust”. The success or failure of a restitutionary claim does not stand or fall on the basis of an assessment of its “unjustness”, but in accordance with principle.

51. In fairness, it should be observed that on these fundamental points, the primary judge did not receive the assistance to which she was entitled from the parties. Counsel for Moneytech wrongly submitted in writing that the restitutionary claim was a claim in equity which was outside the Court’s jurisdiction (written submissions dated 30 April 2015, paragraph 21) and that error appears not to have been corrected orally by the lawyer then appearing for Mega-top, although his written submissions were accurate in this respect.

52. However, the primary judge was nonetheless correct to reject the claim. A quasi-contractual claim cannot undermine the position established by contract. The relevant principle is sufficiently stated in the joint judgment in Lumbers v W Cook Builders Pty Ltd (in liquidation) [2008] HCA 27; 232 CLR 635 at [79]:

“It is essential to consider how the claim fits with contracts the parties have made because, as Lord Goff of Chieveley rightly warned in Pan Ocean Shipping Co Ltd v Creditcorp Ltd, ‘serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract’. In a similar vein, in the Comments upon §29 of the proposed Restatement, (3d), ‘Restitution and Unjust Enrichment’, the Reporter says:

‘Even if restitution is the claimant’s only recourse, a claim under this Section will be denied where the imposition of a liability in restitution would overturn an existing allocation of risk or limitation of liability previously established by contract.’”

53. In the present case, Mega-top bargained with Moneytech on the terms stated in the letter of 7 August. It did so because it had (it may be inferred) a right to be indemnified by Mentmore. It cannot, by a restitutionary claim, undercut the contractual allocation of risk on which it chose to do business.

Orders

54. For those reasons, I propose that the appeal be dismissed, with costs.

55. Moneytech obtained an indemnity costs order in its favour following the trial, by reason of a Calderbank offer made by it and rejected by Mega-top. Moneytech sought a similar order on appeal. It did not attempt to supplement its written submissions on this issue. As presently advised, I would not accede to Moneytech’s application for indemnity costs of the appeal. The fact that such an order was obtained at trial is not of itself a sufficient reason to support a similar order on appeal.

56. If, however, there has been further correspondence or offers of compromise relevant to the appeal, Moneytech is at liberty to exercise the right to apply within the time specified by the rules for a variation of the costs order I have proposed.

57. EMMETT AJA: The question in this appeal is whether the appellant, Mega-top Cargo Pty Ltd (Mega-top), is entitled to be reimbursed by the respondent, Moneytech Services Pty Ltd (Moneytech), in respect of import duties, freight costs and goods and services tax paid by Mega-top in connection with the entry for consumption under the Customs Act 1901 (Cth) (the Customs Act) of goods that were delivered to Mentmore Pty Ltd (Mentmore) for sale. Mentmore has been wound up in insolvency and is unable to pay the amounts. Mega-top therefore looked to Moneytech for reimbursement. Moneytech denied that it was liable to reimburse Mega-top.

58. The dispute between Mega-top and Moneytech concerns the construction of a letter dated 7 August 2012 (but in fact sent on 7 August 2013) written by Moneytech to Mega-top in connection with the appointment of Mega-top by Moneytech as its customs agent under s 181 of the Customs Act. Under s 181, an owner of goods may authorise a person to be his or her agent for the purposes of the Customs Act. Under s 183, where a person is the agent of an owner of goods for the purposes of the Customs Act, that person is, for the purposes of the Customs Act, deemed to be the owner of those goods. Under s 4, owner in respect of goods includes (relevantly) any person being, or holding himself or herself out to be, the owner, importer, consignee, agent or person possessed of, or beneficially interested, or having any control of, or power of disposition over, the goods.

59. By an undated authorisation and acknowledgement, Moneytech authorised Mega-top, which is the holder of a corporate customs agent’s licence under the Customs Act, to act as Moneytech’s customs agent for the purposes of the Customs Act. On 7 August 2013, Moneytech wrote to Mega-top with reference to that authorisation and acknowledgement and confirmed, relevantly, that Moneytech authorised Mega-top to act as its customs agent for the purposes of the Customs Act. The letter of 7 August 2013 then said as follows:

“Moneytech accepts no liability for any freight costs, logistics costs, other costs, duties or taxes payable relating to the delivery or acceptance of any freight. All taxes, duties and costs should be payable by Mentmore Pty Ltd, whom Moneytech understands has a direct relationship with Megatop Cargo Pty Ltd.”

60. Mentmore wished to import goods from China and Moneytech agreed to finance the importation of the goods. Moneytech put in place arrangements to ensure security over the imported goods pending payment by Mentmore. Under the arrangements, Moneytech was named as the purchaser of the goods from the Chinese supplier. The goods were consigned to Moneytech and the goods were to be entered for home consumption, within the meaning of the Customs Act, by Moneytech.

61. In connection with the import of the relevant goods, Mega-top paid out the sum of $233,989.62 in respect of freight costs, import duties and goods and services tax. Mega-top invoiced Mentmore for that sum, but Mentmore has failed to pay it and is now unable to pay any part of the sum. Mega-top therefore sought reimbursement from Moneytech. Moneytech refused to reimburse the amount, relying on the terms of the letter of 7 August 2013. Mega-top therefore sued Moneytech in the District Court. On 30 April 2015, for reasons given ex tempore on that day, a judge of the District Court dismissed Mega-top’s claims. Mega-top now appeals to this Court from the orders made by the District Court.

62. Clearly enough, but for the letter of 7 August 2013, Mega-top would have been entitled to look to Moneytech to reimburse it for the expenses properly incurred in acting as the agent of Moneytech in connection with the entry for home consumption of the goods. However, the clear intent of the letter was that, while Moneytech appointed Mega-top as its agent, Mega-top agreed that Moneytech would not have any liability for the costs, duties and taxes in question. Rather, Moneytech and Mega-top agreed that Mega-top would be required to look to Mentmore for reimbursement of such amounts and not to Moneytech. That is a perfectly understandable, though perhaps unusual, commercial arrangement. It was within the power of Mega-top to withhold delivery of the goods until it was reimbursed by Mentmore. While the arrangements in place between Moneytech and Mentmore made Moneytech the importer of the goods, the express terms of the letter make it clear that, as between Moneytech and its agent, Mega-top, Mega-top was required to look to Mentmore for reimbursement of the relevant expenses.

63. I have had the advantage of reading in draft the proposed reasons of Leeming JA. I agree, for the reasons proposed by his Honour, that the appeal should be dismissed with costs. I agree with the orders proposed by his Honour.

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Amendments

05 March 2018 - [26] - first line - "and not Mega-top" corrected to "and not Moneytech"

Decision last updated: 05 March 2018