Medium Neutral Citation: Miraki v Griffith [2021] NSWCA 263
Hearing dates: 1 June 2021
Decision date: 29 October 2021
Before: Bell P at [1];
Payne JA at [42];
McCallum JA [45]
Decision:
Appeal dismissed with costs

Catchwords:
RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son’s name at his direction – where primary judge accepted son’s evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution

Legislation Cited:
Minors (Property and Contracts) Act 1970 (NSW) s 17
Uniform Civil Procedure Rules r 51.53(1)

Cases Cited:
ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412
Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4
BBB Constructions v Aldi Foods [2010] NSWSC 1352
Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58
Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221
Coshott v Lenin [2007] NSWCA 153
Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101
Furlong v Wise and Young Pty Ltd [2016] NSWSC 1839
Ilich v R (1987) 162 CLR 110; [1987] HCA 1
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
Miraki v Griffith [2020] NSWDC 417
Nikolic v Oladaily Pty Ltd [2007] NSWCA 252
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82
Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68
Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987
Wickstead v Browne (1992) 30 NSWLR 1

Texts Cited:
Ian Jackman, The Varieties of Restitution (2nd ed, 2017, The Federation Press)
J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing)
K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (4th ed, 2021, LexisNexis)

Category: Principal judgment
Parties: Sepideh Miraki (Appellant)
Joshua Griffith (First Respondent)
Dominic Griffith (Second Respondent)
Representation:
Counsel:
D Allen (Appellant)
E A J Hyde, R J Pietriche (First Respondent)
No appearance (Second Respondent)
Solicitors:
William Roberts Lawyers (Appellant)
Hall & Wilcox (First Respondent)
In person (Self-Represented) (Second Respondent)

File Number(s): 2020/251220
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 417

Date of Decision:

05 August 2020

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.

Continue reading Miraki v Griffith

Details

AGLC: Miraki v Griffith [2021] NSWCA 263
Case: [2021] NSWCA 263
Decision Date: 29 October 2021

CaseChat Overview and Summary

Miraki (the appellant) sought to recover money paid to Griffith (the respondent) for goods that were never delivered. The dispute concerned whether the respondent was personally liable to make restitution for the prepayment. The appeal was heard by Bell P, Payne and McCallum JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the respondent was liable to make restitution to the appellant for the prepayment made for undelivered goods, notwithstanding that the primary judge had found that the respondent’s father controlled the bank account into which the funds were paid and ultimately benefited from them.

The Court of Appeal upheld the primary judge's finding that the respondent had directed the appellant to pay the funds into an account in the respondent's name. However, the Court agreed with the primary judge's conclusion that the respondent was not personally liable to make restitution. The Court reasoned that the respondent had acted as an agent for his father in receiving the payment, and that the father had retained control of the funds and obtained the benefit of them. Therefore, the respondent had not been unjustly enriched.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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

Full text does not contain this section.

Citations

AGLC Citation

Miraki v Griffith [2021] NSWCA 263

Most Recent Citation

Rashazar v Tok [2024] NSWDC 443

Cases citing this decision · 3 of 3 shown

Tok v Rashazar
[2025] NSWCA 94 Para 70

…rvation that the appellants sought to rely upon in support of this contention, the judgment of McCallum JA in Miraki v Griffith (2021) 106 NSWLR 280; [2021] NSWCA 263 (“ Miraki ”), assist the appellants. In Miraki , McCallum JA was considering whether a claim in restitution could “[circumvent] the protective effect…
Rashazar v Tok
[2024] NSWDC 443

…(ACN 633 278 903) & Ors [2022] VSC 747 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne and Ano r [2004] NSWCA 123 Miraki v Griffith [2021] NSWCA 263 Re Sharrment Pty Ltd; Lee Wynyard; Mark Wynyard; Lorreine Claire Wynyard and Seyta Pty Ltd v The Official Trustee in Bankruptcy [1988] FCA 179 Rymark Australia…
In the matter of Iconic Constructions Australia (NSW) Pty Ltd
[2023] NSWSC 3 Para 75

…292; (1988) 78 ALR 157; [1998] HCA 17 at 164 CLR 674 (Mason CJ, Wilson, Deane, Toohey and Gaudron JJ); Miraki v Griffith (2021) 106 NSWLR 280; [2021] NSWCA 263 at [39]-[41] (Bell P, as the Chief Justice of New South Wales then was) and [128]-[140] (McCallum JA, as the Chief Justice of the Australian Capital Territ…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

Miraki v Griffith
[2020] NSWDC 417 Para 13

…ge entered judgment against Dominic in the sum of $116,279.91 representing an amount equal to the first, second and third payments: Miraki v Griffith [2020] NSWDC 417 ( the primary judgment ). There is no appeal by Mrs Miraki from this order (and no cross-appeal by Dominic). Dominic did not play an active part in t…
Mann v Paterson Constructions Pty Ltd
[2019] HCA 32 Para 26

…y Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [141] ( AFSL ); Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [168].…
Nobarani v Mariconte (No 2)
[2018] HCA 49 Para 95

…e Uniform Civil Procedure Rules because the errors were such as to occasion “a substantial wrong or miscarriage”: cf Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38].…
Nobarani v Mariconte
[2018] HCA 36 Para 95

…edure Rules because the errors were such as to occasion “a substantial wrong or miscarriage”: cf Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38].…
Furlong v Wise & Young Pty Ltd
[2016] NSWSC 1839 Para 61

…count, Joshua became the legal owner of the money. In support of that submission, Mrs Miraki cited the decision of Furlong v Wise and Young Pty Ltd [2016] NSWSC 1839 (Sackar J). However, that submission did not grapple with Joshua’s evidence concerning the issue of enrichment or benefit and in any event was not purs…
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd
[2014] HCA 14

…662; Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101; [1993] HCA 54; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14, applied.…
BBB Constructions v Aldi Foods
[2010] NSWSC 1352 Para 27

…ed upon by Mr Allen in this regard — ABB Power Generation Ltd v Chapple (2001) 25 WAR 158; [2001] WASCA 412 at [20]; BBB Constructions v Aldi Foods [2010] NSWSC 1352 at [368]; and Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 at 257 — only went to the proposition that a benefit need not necessarily be…
Nikolic v Oladaily Pty Ltd
[2007] NSWCA 252 Para 37

…gitate but was a claim which Barton had, it being recalled that it was in fact Barton that had made the four payments: cf, Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 at [97].…
Coshott v Lenin
[2007] NSWCA 153 Para 35

…see generally Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [74]–[75], [165]–[167]; Coshott v Lenin [2007] NSWCA 153. As the primary judge’s reasons do not disclose the basis upon which she held Dominic liable (see [13] above), this can be passed over.…
Robb Evans of Robb Evans & Associates v European Bank Ltd
[2004] NSWCA 82 Para 130

…tead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 17E-F, and Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 at [109]-[118].…
Wasada Pty Ltd v State Rail Authority of New South Wales (No 2)
[2003] NSWSC 987 Para 26

…“unjust” so as to give rise to a prima facie entitlement to restitution: see Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 at [16]–[18], cited with approval in A ustralian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [141] ( A…
ABB Power Generation Ltd v Chapple
[2001] WASCA 412 Para 27

…The cases relied upon by Mr Allen in this regard — ABB Power Generation Ltd v Chapple (2001) 25 WAR 158; [2001] WASCA 412 at [20]; BBB Constructions v Aldi Foods [2010] NSWSC 1352 at [368]; and Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 at 257 — only went to the proposition that a benefit need not…
Roxborough v Rothmans of Pall Mall Australia Ltd
[2001] HCA 68 Para 35

…njust enrichment covering the same conduct, may have arisen: see generally Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [74]–[75], [165]–[167]; Coshott v Lenin [2007] NSWCA 153. As the primary judge’s reasons do not disclose the basis upon which she held Dominic liable (s…
Dart Industries Inc v Decor Corporation Pty Ltd
[1993] HCA 54 Para 34

…see Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 111; [1993] HCA 54 ; AFSL at [137].…
Wickstead v Browne [No 2]
[1993] NSWCA 289 Para 130

…proposition: Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58, Ilich v R (1987) 162 CLR 110; [1987] HCA 1 at [24], Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 17E-F, and Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 at [109]-[118].…
Baltic Shipping Co v Dillon
[1993] HCA 4 Para 34

…her than the form of the matter. This was entirely in accordance with settled authority: see Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 111; [1993] HCA 54 ; AFSL at [137].…
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation
[1988] HCA 17

…0 (NSW) s 17 Uniform Civil Procedure Rules r 51.53(1) Cases Cited: ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412 Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 A ustralian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Baltic Shipping Co v Dillon (1…
Pavey & Matthews Pty Ltd v Paul
[1987] HCA 5

…v Aldi Foods [2010] NSWSC 1352, distinguished . ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17; Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5, applied. Joshua did not receive the benefit of the payment into his account but rather was a “mere conduit” of funds received for th…
Ilich v The Queen
[1987] HCA 1 Para 130

…y”. Four authorities were cited for that proposition: Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58, Ilich v R (1987) 162 CLR 110; [1987] HCA 1 at [24], Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 17E-F, and Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; […
Black v S Freedman & Co
[1910] HCA 58 Para 130

…a Griffith became the legal owner of the money”. Four authorities were cited for that proposition: Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58, Ilich v R (1987) 162 CLR 110; [1987] HCA 1 at [24], Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 17E-F, and Robb Evans of Robb Evans & Associat…

Legislation cited in this decision · 1

Minors (Property and Contracts) Act 1970 (NSW)
17 2 mentions (from Para 10)

Medium Neutral Citation:	Miraki v Griffith [2021] NSWCA 263
Hearing dates:	1 June 2021
Decision date:	29 October 2021
Before:	Bell P at [1]; Payne JA at [42]; McCallum JA [45]
Decision:	Appeal dismissed with costs
Catchwords:	RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son’s name at his direction – where primary judge accepted son’s evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution
Legislation Cited:	Minors (Property and Contracts) Act 1970 (NSW) s 17 Uniform Civil Procedure Rules r 51.53(1)
Cases Cited:	ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412 Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4 BBB Constructions v Aldi Foods [2010] NSWSC 1352 Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58 Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221 Coshott v Lenin [2007] NSWCA 153 Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 Furlong v Wise and Young Pty Ltd [2016] NSWSC 1839 Ilich v R (1987) 162 CLR 110; [1987] HCA 1 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 Miraki v Griffith [2020] NSWDC 417 Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 Wickstead v Browne (1992) 30 NSWLR 1
Texts Cited:	Ian Jackman, The Varieties of Restitution (2nd ed, 2017, The Federation Press) J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing) K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (4th ed, 2021, LexisNexis)
Category:	Principal judgment
Parties:	Sepideh Miraki (Appellant) Joshua Griffith (First Respondent) Dominic Griffith (Second Respondent)
Representation:	Counsel: D Allen (Appellant) E A J Hyde, R J Pietriche (First Respondent) No appearance (Second Respondent) Solicitors: William Roberts Lawyers (Appellant) Hall & Wilcox (First Respondent) In person (Self-Represented) (Second Respondent)
File Number(s):	2020/251220
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 417 Date of Decision: 05 August 2020