Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd - [2021] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd [2021] QSC 272

PARTIES:

POINT BAY DEVELOPMENTS PTY LTD
ACN 627 498 944

(applicant)

v
PERKINS (WA) PTY LTD
ACN 008 844 862

(respondent)

FILE NO:

BS No 1315 of 2021

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2021
Supplementary written submissions: 12 October 2021

JUDGE:

Flanagan J

ORDER:

1. The respondent pay the sum of $599,274.71 to the applicant.

2. The Court will hear the parties as to interest and costs.

CATCHWORDS:

EQUITY – GENERAL PRINCIPLES – MISTAKE – RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant unintentionally provided to the ATO the bank account details of another company, A, for payment of a GST refund due to the applicant – where the ATO paid the money to A – where the applicant was not indebted to A – where A subsequently paid the money to the respondent pursuant to a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) to discharge A’s judgment debt to the respondent – where the applicant did not intend for the money to be paid to A, or intend for the money to be used to discharge A’s judgment debt to the respondent – whether the mistake of fact caused the GST refund to be paid to A – whether the respondent was enriched at the expense of the applicant despite the respondent being a subsequent or indirect recipient of the money paid by mistake

EQUITY – GENERAL PRINCIPLES – UNJUST ENRICHMENT – DEFENCES – CHANGE OF POSITION – where the respondent was a judgment creditor – where the respondent obtained a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) directing the judgment debtor’s bank to pay funds standing to the credit of the debtor to the respondent – where funds standing to the credit of the judgment debtor had been paid to the debtor from the applicant by a mistake of fact – where, pursuant to the debt appropriation order, the bank paid out the money to the respondent – where the respondent had notice of the mistake of fact prior to receipt of the money from the bank – where the applicant seeks recovery of the money from the respondent as money had and received – where the respondent faces legal costs in obtaining a fresh debt appropriation order if the respondent is ordered to disgorge the money – where the prospects of obtaining a fresh debt appropriation order are uncertain – whether the respondent has changed its position

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17, applied
Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14, cited
Barclays Bank Ltd…

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: [2021] QSC 272
Decision Date: 22 October 2021

CaseChat Overview and Summary

Point Bay Developments Pty Ltd, previously known as Austpro Australia Pty Ltd, initiated legal proceedings against Perkins (WA) Pty Ltd to recover $599,274.71, which was mistakenly paid into Austpro Management Services Group Pty Ltd’s Westpac bank account instead of the applicant’s. This resulted from an error in the bank account details provided to the Australian Taxation Office (ATO) for a GST refund. The respondent, Perkins (WA) Pty Ltd, received the funds indirectly after Austpro Management Services Group Pty Ltd paid the sum to Perkins (WA) Pty Ltd to discharge a judgment debt. The primary legal issues revolved around whether the respondent was enriched at the expense of the applicant due to a mistake of fact and, if so, whether the respondent had a defence of change of position.

The court examined whether the mistake of fact led to the ATO paying the GST refund to the wrong account, and whether the respondent, despite being an indirect recipient of the funds, was enriched at the applicant's expense. The court found that the mistake was unintentional and that the applicant did not intend for the funds to be paid to Austpro or to discharge Perkins (WA) Pty Ltd’s judgment debt. The court also assessed the respondent’s defence of change of position, considering whether the respondent had taken any significant steps that would make it unjust to require the return of the funds. The court held that the respondent had not sufficiently demonstrated a change of position that would warrant a refusal to order the return of the funds.

The court concluded that the respondent was enriched at the expense of the applicant due to the mistake of fact and that the respondent had not successfully established the defence of change of position. Therefore, the court ordered the respondent to pay the sum of $599,274.71 to the applicant. The matter of interest and costs will be addressed in subsequent proceedings.

Orders

Orders of the court

1. The respondent pay the sum of $599,274.71 to the applicant.

2. The Court will hear the parties as to interest and costs.

Background

Background to the litigation

The applicant seeks to recover the sum of $599,274.71 as money had and received by the respondent as a result of a mistake of fact. The respondent denies that it received the money as a result of a mistake of fact and, even if it did, it is able to establish a change of position defence.Background The evidence in the proceeding was by way of affidavit and no deponent was required for cross-examination. The following background is therefore uncontroversial. Chris Pappas is the sole director of the applicant. In June 2020 the applicant changed its name from Austpro Australia Pty Ltd to Point Bay Developments Pty Ltd. Mr Pappas is also one of two directors of a company called Austpro Management Services Group Pty Ltd (Austpro). The applicant maintains a National Australia Bank account and both the applicant and Austpro maintain separate Westpac bank accounts. The applicant’s accountants are GV Consulting & Forensics, the principal of which is Graeme Gillard. In or about September 2020 Mr Gillard caused the applicant to lodge a business activity statement (BAS) which included a claim for a GST refund regarding land purchased by the applicant in Mackay. The Australian Taxation Office (ATO) audited the BAS and determined that the applicant was entitled to a GST refund of $900,058. On 19 November 2020 Mr Gillard received an email from the ATO confirming that the audit had been completed. On the same day, to facilitate the processing of the GST refund, Mr Pappas caused an email to be sent to Mr Gillard containing what he thought to be the applicant’s Westpac bank account details. Mr Pappas dictated the email to his personal assistant, Angela Docen. The subject line is “Westpac account details” and the email reads:“Hi Graeme, The Westpac details below for the GST refundPoint Bay DevelopmentsBSB [redacted]ACCOUNT [redacted]Thanks[1]Affidavit of C Pappas sworn 3 February 2021 (CD-2), exh CP-002.Chris”[1] While this email identified the applicant as being the account holder, the BSB and account number were, in fact, those of Austpro and not the applicant. Mr Pappas swears that he mistakenly included the account details of Austpro instead of the applicant.[2] According to Mr Pappas, he provided bank account details for Westpac as he wanted to ensure that the GST refund was not deposited into the applicant’s other bank account held with National Australia Bank. He is not precisely sure how he included Austpro’s account details instead of the applicant’s, but he does recall reading the BSB and account number from some document or statement that would have had the word “Austpro” on it, noting that the applicant’s former name was Austpro Australia Pty Ltd and that he still often refers to the applicant by its old name. Mr Pappas suspects that he accidentally picked up a document or a statement containing Austpro’s account details rather than the applicant’s account details. Mr Pappas did not consciously or deliberately provide Austpro’s bank account details for the purposes of the GST refund. The applicant was not indebted to Austpro or the respondent. I find that Mr Pappas had no intention of directing the GST refund to be paid to Austpro’s Westpac bank account.[2]Affidavit of C Pappas sworn 3 February 2021 (CD-2), paragraph 5.

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.

CITATION:	Point Bay Developments Pty Ltd v Perkins (WA) Pty Ltd [2021] QSC 272
PARTIES:	POINT BAY DEVELOPMENTS PTY LTD ACN 627 498 944 (applicant) v PERKINS (WA) PTY LTD ACN 008 844 862 (respondent)
FILE NO:	BS No 1315 of 2021
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 October 2021
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2021 Supplementary written submissions: 12 October 2021
JUDGE:	Flanagan J
ORDER:	1. The respondent pay the sum of $599,274.71 to the applicant. 2. The Court will hear the parties as to interest and costs.
CATCHWORDS:	EQUITY – GENERAL PRINCIPLES – MISTAKE – RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant unintentionally provided to the ATO the bank account details of another company, A, for payment of a GST refund due to the applicant – where the ATO paid the money to A – where the applicant was not indebted to A – where A subsequently paid the money to the respondent pursuant to a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) to discharge A’s judgment debt to the respondent – where the applicant did not intend for the money to be paid to A, or intend for the money to be used to discharge A’s judgment debt to the respondent – whether the mistake of fact caused the GST refund to be paid to A – whether the respondent was enriched at the expense of the applicant despite the respondent being a subsequent or indirect recipient of the money paid by mistake EQUITY – GENERAL PRINCIPLES – UNJUST ENRICHMENT – DEFENCES – CHANGE OF POSITION – where the respondent was a judgment creditor – where the respondent obtained a debt appropriation order under the Civil Judgments Enforcement Act 2004 (WA) directing the judgment debtor’s bank to pay funds standing to the credit of the debtor to the respondent – where funds standing to the credit of the judgment debtor had been paid to the debtor from the applicant by a mistake of fact – where, pursuant to the debt appropriation order, the bank paid out the money to the respondent – where the respondent had notice of the mistake of fact prior to receipt of the money from the bank – where the applicant seeks recovery of the money from the respondent as money had and received – where the respondent faces legal costs in obtaining a fresh debt appropriation order if the respondent is ordered to disgorge the money – where the prospects of obtaining a fresh debt appropriation order are uncertain – whether the respondent has changed its position Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17, applied Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14, cited Barclays Bank Ltd…