FEDERAL COURT OF AUSTRALIA
Singh v Khan (No 2) [2021] FCA 463
File number: NSD 1392 of 2020 Judgment of: STEWART J Date of judgment: 5 May 2021 Catchwords: RESTITUTION – claim for money had and received on mistake of law – whether applicant must plead loss or liability to third party – whether that the money recovered would be held by the applicant on constructive trust in favour of a third party can be raised as a defence to a common law claim for money had and received
EQUITY – constructive trust – whether equity imposes constructive trust on the party receiving an overpayment on mistake of law – unconscionability lacking
TAXATION – withholding tax for supplier’s failure to quote a valid ABN – circularity of payment or accounting obligations
PRACTICE AND PROCEDURE – application to strike out statement of claim on various grounds – whether reasonable causes of action – whether leave to replead a second time should be given – self-represented litigant
Legislation: Taxation Administration Act 1953 (Cth) Sch 1, ss 12-190, 16-70, 16-75, 16-85 Cases cited: Baumgartner v Baumgartner [1987] HCA 59; 164 CLR 137
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd [1994] HCA 61; 182 CLR 51
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
KAP Motors Pty Ltd v Federal Commissioner of Taxation [2008] FCA 159; 168 FCR 319
Piccone v Suncorp Metway Insurance Ltd [2005] FCAFC 260; 148 FCR 437
Re French Caledonia Travel Service Pty Ltd (in liq) [2003] NSWSC 1008; 59 NSWLR 361
Division: General Division Registry: New South Wales National Practice Area: Taxation Number of paragraphs: 33 Date of hearing: 4 May 2021 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: R Brown Solicitor for the Respondents: McGrath Dicembre & Company ORDERS
NSD 1392 of 2020 BETWEEN: GURJIT SINGH
Applicant
AND: GHULAM AKBAR KHAN
First Respondent
SAMINA KHAN
Second Respondent
FOBUPU PTY LTD
Third Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The applicant’s statement of claim filed on 29 March 2021 is struck out.
2.The proceeding is dismissed as against the first and second respondents.
3.The applicant has leave to file a new statement of claim by 31 May 2021 to plead a money had and received claim against the third respondent for monies overpaid for the rent of premises at 8 Bringelly Road, Kingswood, in the period February 2012 to November 2017.
4.Costs are reserved.
5.The matter is listed on 3 June 2021, or such other date as the parties may arrange with the associate to Stewart J, for further case management and oral submissions on the costs reserved on 24 February 2021 and today.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWART J:
On 24 February 2021, I struck…
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- AGLC
- Singh v Khan (No 2) [2021] FCA 463
- Case
- [2021] FCA 463
- Decision Date
CaseChat Overview and Summary
The court addressed the applicant's procedural application to strike out the statement of claim, examining the reasonableness of the causes of action and whether leave should be granted for a second amendment. The applicant, appearing self-represented, was given leave to replead his claim against the third respondent, with a specific focus on the money had and received claim regarding the overpaid rent. The court dismissed the proceeding against the first and second respondents, while striking out the initial statement of claim. The court found that there was no unconscionability in the applicant's receipt of the overpayment, and hence no basis for imposing a constructive trust. Additionally, the court did not find merit in the argument that withholding tax should apply due to the circularity of payment or accounting obligations.
The final orders of the court included the striking out of the applicant's initial statement of claim and dismissal of the proceeding against the first and second respondents. The applicant was granted leave to file a new statement of claim by a specified date, focusing on the money had and received claim against the third respondent. Costs were reserved, and the matter was listed for further case management and oral submissions on reserved costs and other matters. The decision highlighted the procedural and substantive requirements for claims based on a mistake of law and the limited circumstances in which a constructive trust might be imposed.
Orders
Orders of the court
1. The applicant’s statement of claim filed on 29 March 2021 is struck out.
2. The proceeding is dismissed as against the first and second respondents.
3. The applicant has leave to file a new statement of claim by 31 May 2021 to plead a money had and received claim against the third respondent for monies overpaid for the rent of premises at 8 Bringelly Road, Kingswood, in the period February 2012 to November 2017.
4. Costs are reserved.
5. The matter is listed on 3 June 2021, or such other date as the parties may arrange with the associate to Stewart J, for further case management and oral submissions on the costs reserved on 24 February 2021 and today.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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