Southage Pty Ltd v Vescovi

Southage Pty Ltd sought restitution of loan funds paid to Vescovi, the defendant, under a mistaken belief that Vescovi had requested the loan. The New South Wales Supreme Court was asked to determine whether the enrichment occurred when the funds were paid or when Vescovi subsequently nominated herself as the purchaser under a contract for the sale of other land. The court was also required to decide whether the enrichment was received by virtue of Vescovi's subsequent nomination as purchaser and whether the principles of tracing applied to the case.

The court found that the enrichment occurred when the funds were paid, as this was the moment when the unjust enrichment took place. The court held that Vescovi's subsequent nomination as purchaser did not constitute the enrichment, as the enrichment had already occurred when the funds were paid. The court held that the principles of tracing did not apply to the case, as the loan funds had been used to pay a deposit under a contract for the sale of other land. The court held that the enrichment must be assessed by taking into account the liabilities incurred in consequence, and that the enrichment was by virtue of Vescovi's occupation of the property. The court held that the defence of change of position on the faith of the receipt did not apply, as the knowledge of the facts entitling Vescovi to deal with the property did not have to be derived from the payee. The court held that it was unjust to require restitution, as Vescovi had not retained the benefit.

The court held that Southage was entitled to restitution of the loan funds, less the value of any benefit received by Vescovi. The court held that the enrichment was by virtue of Vescovi's occupation of the property, and that the defence of change of position on the faith of the receipt did not apply. The court held that it was unjust to require restitution, as Vescovi had not retained the benefit. The court held that Southage was entitled to restitution of the loan funds, less the value of any benefit received by Vescovi. The court ordered that Vescovi pay Southage the sum of $400,000, being the amount of the loan funds paid, less the value of any benefit received by Vescovi.