Trimat Holdings Pty Ltd v Investment Club Pty Ltd
[2022] WASCA 29
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRIMAT HOLDINGS PTY LTD -v- INVESTMENT CLUB PTY LTD [2022] WASCA 29
CORAM: QUINLAN CJ
BEECH JA
VAUGHAN JA
HEARD: 10 FEBRUARY 2022
DELIVERED : 4 MARCH 2022
FILE NO/S: CACV 28 of 2021
BETWEEN: TRIMAT HOLDINGS PTY LTD
Appellant
AND
INVESTMENT CLUB PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GETHING DCJ
Citation: TRIMAT HOLDINGS PTY LTD -v- INVESTMENT CLUB PTY LTD [No 2] [2021] WADC 26
File Number : CIV 2167 of 2018
Catchwords:
Restitution and unjust enrichment - Payments made under a mistake - Defence of good consideration - Where lease required tenant to pay landlord's operation expenses in addition to rent - Where conditions of lease introduced by statute required landlord to give estimates of operating expenses and an operating expenses statement - Where estimates and statement not provided - Where legislation provides that tenant is not obliged to make payment of, and landlord is not entitled to recover, operating expenses while landlord is in default - Where tenant pays operating expenses mistakenly believing it was under a legal obligation to make the payments - Where landlord advances defence of good consideration - Whether, at time of payment, a debt existed between landlord and tenant, the discharge of which amounted to good consideration - Whether the question of whether a claim existed was to be assessed at the time of payment or only at the later point in time at which the legislation operated to mean that the tenant would never be required to make payment
Legislation:
Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA), s 12
Result:
Appeal dismissed
Cross-appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | D H Solomon |
| Respondent | : | E M Heenan |
Solicitors:
| Appellant | : | Solomon Brothers |
| Respondent | : | Irwin Legal |
Case(s) referred to in decision(s):
ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 309 ALR 445
Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; (2015) 322 ALR 180
Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560
Bakewell v Deputy Federal Commissioner of Taxation (SA) (1937) CLR 743
Barclays Bank Ltd v W J Simms, Son & Cooke (Southern) Ltd [1980] 1 QB 677
Charlton v National Australia Bank Limited [2021] NSWCA 111
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Federal Commissioner of Taxation v James Flood Pty Ltd (1953) 88 CLR 492
Hawkins v Bank of China (1992) 26 NSWLR 562
HJ Wigmore & Co Ltd v Rundle (1930) 44 CLR 222
Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373
Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [2002] NSWSC 219; (2002) 20 ACLC 726
Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560
North Adelaide Service Partnership v Retail Superannuation Pty Ltd [2019] SASC 5
Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6
Quin v Vlahos [2021] VSCA 205
R v Chief Registrar; Ex parte New Cross Building Society [1984] 1 QB 227
Re Australian and New Zealand Savings Bank Ltd [1972] VR 690
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Shephard v ANZ Banking Corporation Ltd (1996) 41 NSWLR 431
Smith v Leveraged Equities Ltd [2020] WASCA 122
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2020] WASCA 63
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [No 2] [2021] WADC 26
Warren v Coombes (1979) 142 CLR 531
Webb v Stenton (1883) 11 QBD 518
Williams v Harding (1866) LR 1 HL 9
Wreford v Lyle [2021] WASCA 20
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
JUDGMENT OF THE COURT:
The appellant, Trimat Holdings Pty Ltd (Trimat) leased a 'retail shop' from the respondent, Investment Club Pty Ltd (Investment) for a term of 10 years from 1 November 2010. The lease between the parties (the Lease) provided that Trimat was obliged to pay various outgoings during the term of the Lease. Trimat made payments for outgoings (the Payments) totalling about $250,000 for the period beginning on 1 July 2011 and ending on 31 August 2017.
The Lease was governed by the Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA) (the Act). The Act regulates provisions in 'retail shop leases' as to payment of outgoings by tenants. Among other things, it imports terms requiring the landlord to (i) provide annual estimates of outgoings and (ii) provide, by three months after a relevant annual period had finished, an operating expenses statement.
It is not in dispute that Investment did not meet either of these requirements.
In June 2018, Trimat commenced proceedings in the District Court, claiming that, by virtue of Investment's failure to comply with specified provisions of the Act, Trimat was under no legal obligation to make the Payments, and sought restitution in relation to the Payments on the basis that they were paid under a mistake of law.
A preliminary question as to the operation of the Act was determined in the District Court, resulting in an appeal to this court. In Trimat Holdings Pty Ltd v Investment Club Pty Ltd[1] (First Appeal Reasons), this court determined the proper construction of the relevant provisions of the Act.
[1] Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2020] WASCA 63.
Following this court's remitter of the matter to the District Court, the primary judge determined Trimat's claim.[2] The primary judge held that each Payment was made under a mistake of law, but, with the exception of the last payment of each year, Investment had established its defence that it gave good consideration for each Payment.
[2] Trimat Holdings Pty Ltd v Investment Club Pty Ltd[No 2] [2021] WADC 26 (primary reasons).
Trimat now challenges the primary judge's decision. Having abandoned two of its grounds during the hearing of the appeal, it advances two grounds of appeal. Ground 1 challenges the primary judge's conclusion that Investment gave good consideration for the Payments (with the exception already noted). Ground 4 challenges the judge's finding that, to the extent that they were otherwise recoverable, recovery of some of the Payments was barred by the Limitation Act 2005 (WA).
Investment cross‑appeals on two grounds. Ground 1 alleges that the primary judge erred in finding that the good consideration defence does not apply to the final payment of the relevant year, seeking leave to withdraw the concession it had made to that effect. Ground 2 alleges that the primary judge erred in fact and in law in finding that the directing mind and will of Trimat was its sole director, Mr Flint, when, it contends, the directing mind and will for this purpose was Mrs Flint, whose state of mind was not the subject of any evidence.
For the reasons that follow, none of the grounds of appeal or cross‑appeal has been made out. Both the appeal and the cross‑appeal should be dismissed.
It is convenient to outline the provisions of the Act, which provide the framework for the issues in the litigation and in this appeal.
The Act
The relevant provisions of the Act were outlined, and the proper construction of the relevant provisions was determined, in the First Appeal Reasons. It is convenient to reproduce or summarise much of what was said there, as the effect of the Act, and its proper construction as determined by this court, are of central significance to the issues in this appeal.
The Act contains a number of provisions designed to protect the tenants of leases of 'retail shops' as defined.
Section 12 of the Act relates to, and governs, provisions in a 'retail shop lease' for payment by the tenant, in addition to rent, of all or any of the operating expenses of the landlord. 'Operating expenses' are defined as follows:[3]
operating expenses, in relation to a landlord, means expenses of the landlord in operating, repairing or maintaining -
(a)a building of which a retail shop the subject of a retail shop lease to which the landlord is a party forms the whole or a part; or
(b)if that retail shop is in a retail shopping centre, the building or buildings of which a retail shop the subject of a retail shop lease to which the landlord is a party forms the whole or a part and the common area,
and includes, if contributions are levied under the Community Titles Act 2018 or the Strata Titles Act 1985 on the landlord, that party of the contributions that relates to expenses of the landlord in operating, repairing or maintaining the building or buildings of which the retail shop forms part or that building or those buildings and the common area, as the case requires;
[3] Section 12(3) of the Act.
Sections 12(1)(a) and (b) of the Act limit the amount and proportion of operating expenses which are payable by a tenant under a retail shop lease to which s 12 applies.
Section 12(1)(d) is of central importance. It provides:
(d)the retail shop lease shall be taken to provide that -
(i)the tenant is not required to make any payment of, and the landlord is not entitled to recover, any such operating expenses in respect of a year or part of a year until at least one month after the landlord has given to the tenant annual estimates of expenditure under each item of operating expenses in respect of the year; and
(ii)the landlord is required to give to the tenant a written statement in accordance with subsection (1a) (an operating expenses statement) that details all expenditure by the landlord in each accounting period of the landlord during the term of the lease on account of operating expenses to which the tenant is required to contribute.
In these terms, s 12(1)(d)(i) introduces a statutory term into a 'retail shop lease' to which s 12 applies in relation to the provision of estimates of operating expenses. As in the First Appeal Reasons, it will be convenient to refer to this provision as the 'Estimates Provision'.
Section 12(1)(d)(ii) implies a statutory term into a 'retail shop lease' to which s 12 applies in relation to the provision of an operating expenses statement. Again, as in the First Appeal Reasons, it will be convenient to refer to this provision as the 'Statement Provision'.
Section 12(1a) of the Act sets out the requirements for an operating expenses statement in the following terms:
An operating expenses statement -
(a)is to be given to the tenant within 3 months after the end of the accounting period to which it relates; and
(b)if the relevant retail shop is in a retail shopping centre, must include a statement of the current total lettable area of the retail shopping centre and details of any material change in that total lettable area during the period to which the statement relates; and
(c)is to be prepared in accordance with relevant principles and disclosure requirements of the applicable accounting standards made by the Australian Accounting Standards Board, as in force from time to time; and
(d)may be a composite statement (that is, it may relate to more than one tenant) if each tenant to which it relates is able to ascertain from the statement the information required by subsection (1)(d)(ii) that is relevant to that tenant; and
(e)is to be accompanied by a report on the statement prepared by a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth which includes a statement by the auditor as to whether or not the operating expenses statement correctly states expenditure by the landlord during the accounting period concerned in respect of operating expenses to which the tenant is required to contribute, and as to whether or not the total amount of estimated operating expenses for that period (as shown in the estimate of operating expenses given to the tenant) exceeded the total actual expenditure by the landlord in respect of those operating expenses during that period. (emphasis added)
Section 12(1c) of the Act provides for an exception to s 12(1a)(e). It is not necessary to detail that provision because it was common ground at the trial before the primary judge that the exception in s 12(1c) did not apply.
Section 12(1d) of the Act is another important provision in this appeal. It provides:
If a landlord does not comply with the requirement referred to in subsection (1)(d)(ii) [ie the Statement Provision], the tenant is not obliged to pay, and the landlord is not entitled to recover, operating expenses from the date of that noncompliance until the landlord complies with that requirement.
The purposes of these provisions were explained in the First Appeal Reasons as follows:[4]
The purpose of requiring estimates of expenses and statements of expenditure incurred at this time was to provide information to tenants of retail shop leases. Estimates of expenditure would enable tenants to budget for their expenditure over the year, while an audited statement of expenditure incurred would enable them to check that operating costs had been properly charged.
[4] First appeal reasons [41].
As this court explained in the First Appeal Reasons, the Estimates Provision statutorily imports a term into a 'retail shop lease' that makes provision for payment by the tenant of all or any of the operating expenses of the landlord. It provides that until one month after the landlord gives the required estimates, a tenant is not required to make any payment of, and the landlord is not entitled to recover, operating expenses in respect of a year or a part of the year. The Estimates Provision suspends rather than extinguishes a tenant's liability to pay operating expenses.[5]
[5] First appeal reasons [47], [68].
However, by its nature, annual estimates of expenditure, for the purpose of s 12, must be at least partly prospective. Consequently, once the expenditure in the relevant year has been fully incurred, no estimate can be given.[6] In effect, in those circumstances, the suspension effected by the Estimates Provision is permanent.[7]
[6] First appeal reasons [69] - [70].
[7] First appeal reasons [66], [73].
As will be seen, the failure to give the required annual estimates also has consequences for the operation of the Statement Provision.
The Statement Provision provides that a landlord is required to give the tenant an operating expenses statement. Section 12(1a)(a) of the Act identifies the time by which a landlord is required to give an operating expenses statement to the tenant. The statement is to be given to the tenant within three months after the end of the accounting period to which it relates.
By s 12(1d), the consequence of a failure to comply with the Statement Provision is that the tenant is not obliged to pay, and the landlord is not entitled to recover, operating expenses for a defined period of time. The period of time so defined begins from the date of non‑compliance, which is the day after three months following the end of the relevant accounting period.[8] That period of time ends when the landlord complies with the Statement Provision.[9]
[8] First appeal reasons [58].
[9] First appeal reasons [59].
Thus, the Statement Provision effects a suspension, rather than an extinguishment, of the tenant's obligation to pay operating expenses.[10] The First Appeal Reasons described the Statement Provision as a self‑help mechanism enabling the tenant in effect to enforce the landlord's obligation to provide an operating expense statement.[11]
[10] First appeal reasons [62].
[11] First appeal reasons [62].
However, an operating statement meeting the requirements of s 12(1a)(e) can only be given if an estimate of operating expenses had been given to the tenant. The absence of such an estimate means that an operating expenses statement satisfying the requirements of s 12(1a)(e) - and thus avoiding the suspension effected by s 12(1d) - cannot be given.[12]
[12] First Appeal Reasons [74] - [75].
Background facts
By the time of the trial before the primary judge, the following matters were not in issue:[13]
(a)The Lease was a 'retail shop lease' to which the Act applied.
(b)The Lease required Trimat to pay 100% of the outgoings incurred by Investment in respect of the leased premises. We will set out cl 2, by which Trimat was so obliged, later in these reasons (see [71] below).
(c)During the term of the Lease, Investment issued invoices for outgoings to Trimat.
(d)The outgoings the subject of the invoices were for expenses of Investment in operating, repairing or maintaining the building in which the leased premises were situated, and were thus 'operating expenses' as defined in and for the purposes of the Act.
(e)Trimat made the Payments to Investment as claimed by Trimat in its amended statement of claim.
(f)During the period 1 July 2011 to 31 August 2017, Investment failed to provide Trimat with annual estimates of expenditure under each item of operating expenses in accordance with s 12(1)(d)(i) of the Act and it was not now open to Investment to do so.
(g)During the period 1 July 2011 to 31 August 2017, Investment failed to provide Trimat with written statements detailing all expenditure by Investment in each of its accounting periods during the term of the Lease on account of operating expenses to which Trimat was required to contribute in accordance with s 12(1)(d)(ii) of the Act.
(h)By reason of the failures in (f) and (g), Trimat was not obliged to pay, and Investment was not entitled to recover from Trimat, Investment's expenses in operating, repairing or maintaining the building in which the leased premises were situated by reason of ss 12(1)(d)(i) and 12(1d) of the Act. The suspension of the obligation to pay those expenses continued to apply and will continue in perpetuity.
[13] Primary reasons [6], [20].
The primary reasons
The primary judge identified seven issues for determination at the trial. Given the grounds of appeal and cross‑appeal, some of those issues can be put to one side. The issues at trial that are relevant for the purposes of the appeal were:
(1)Was there a mistake made by Trimat which gives rise to a prima facie entitlement to recover the Payment as payments made pursuant to a mistake of law?
(2)Does Investment have a defence to Trimat's claim on the ground that it provided good consideration for the Payments.
(3)Is any part of Trimat's claim outside the limitation period?
Was a mistake made by Trimat which gives rise to a prima facie entitlement to recover the Payments as payments made pursuant to a mistake of law?
Trimat's case relied on the evidence of its sole director and secretary, Mr Jeremy Flint, who gave evidence that he caused Trimat to make the Payments owing under the Lease. The primary judge set out passages of Mr Flint's evidence as to his state of mind.[14]
[14] Primary reasons [45] - [47], [49].
Investment submitted that the directing mind and will of the company in respect of the effecting of the relevant Payments was Mr Flint's wife, Mrs Sue Flint, not Mr Flint. Therefore, in the absence of evidence as to Mrs Flint's state of mind, the defence must fail. Investment raised other responses in relation to this part of Trimat's claim, but there is no need to detail them as the judge's rejection of Investment's other responses is not now challenged.
The primary judge found that what must be identified is the directing mind and will of the company in respect of the relevant transaction, being the person or persons who decided to make the relevant payment.[15] His Honour accepted Mr Flint's evidence that he was the person who made the Payments and, in so acting, 'his mind [was] the mind of the company'.[16] The judge found that Mrs Flint was employed as a bookkeeper with the task of dissecting the outgoing amounts by breaking them down into the categories required by the franchisor's accounting system.[17]
[15] Primary reasons [26] citing North Adelaide Service Partnership v Retail Superannuation Pty Ltd [2019] SASC 5 [113].
[16] Primary reasons [62].
[17] Primary reasons [48], [62].
The judge noted that counsel for Investment did not cross‑examine Mr Flint to the effect that he did not, in fact, hold the beliefs in the evidence quoted by the judge.[18]
[18] Primary reasons [66].
The primary judge's conclusion that Mr Flint was the directing mind and will of Trimat is challenged by ground 2 of the cross‑appeal.
Did Investment have a defence to Trimat's claims for restitution on the ground that it provided good consideration for the Payments?
The primary judge began his analysis by reiterating that this court determined that the relevant provisions effect a suspension rather than an extinguishment of the tenant's obligations to pay operating expenses. His Honour then observed that a debt may exist, although it is not yet due or payable,[19] adopting what was said by Barrett J in Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd:[20]
A statement that one person 'owes' a particular sum to another and 'is indebted' in that sum asserts no more than the existence of a debt, that is, an obligation to pay the sum concerned. It says nothing about the time at which the obligation must be performed. It therefore says nothing about whether the sum concerned is 'due' or 'payable'. It is, of course, axiomatic that a debt, in the form of a payment obligation, may be presently owing but not yet either 'due' or 'payable'. It may likewise be 'owing' and 'due' but not yet 'payable', although it is not possible for a debt 'owing' to be 'payable' but not 'due': Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 9 BCL 256 per King CJ. A statement that a sum is 'due and payable' thus connotes not only that it is 'owed' (so that the debtor is 'indebted') but also that the time for payment has arrived and the obligation to pay is an unqualified and unfettered obligation requiring immediate performance.
[19] Primary reasons [93].
[20] Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [2002] NSWSC 219; (2002) 20 ACLC 726 [17].
The judge considered that the effect of the Act, in preventing Investment from enforcing the obligation to pay outgoings, was that the debt under the Lease for outgoings remained an obligation, but, while a suspension was operative, the obligation was not 'due or payable'.[21]
[21] Primary reasons [94].
His Honour noted that the Act is silent as to what occurs where a payment is made by the tenant in circumstances where, by the implied terms, the payment was not then 'due and payable'.
The judge accepted Investment's submission that the statutory regime in the Act is materially different from the provisions considered by the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia.[22] His Honour noted that, in David Securities, the statutory regime rendered the offending provision void, with the result that there never was a debt which could have been discharged by the payment. By contrast, in the present case, the Payments were payments which Trimat was under an obligation to pay, although they were not debts 'due and payable' at the time of payment.[23]
[22] David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
[23] Primary reasons [96].
Consequently, the judge considered that the effect of Trimat's making of the Payments was to extinguish its liability to Investment, thereby providing good consideration for the Payments. The fact that the debt was paid before it was 'due and payable' did not prevent it discharging the debt.[24]
[24] Primary reasons [97] - [98].
The primary judge adopted the concession by counsel for Investment that the position was different in relation to the last payment of outgoings for each relevant year. The judge noted this court's decision in which it was held that the Estimates Provision cannot be complied with after the expenditure for a year had been fully incurred and ascertained. The judge found that this would occur when Trimat made the last payment for each relevant year. In that scenario, the tenant would never be required to pay and the landlord would never be entitled to recover any of the operating expenses of the landlord for that year. Consequently, his Honour considered that Trimat no longer had a legally enforceable obligation and could not, in substance, be characterised as having a debt for which Investment could give good consideration by discharging on payment.[25]
[25] Primary reasons [100].
Ground 1 of Trimat's appeal challenges the primary judge's conclusion as to all the Payments, apart from the final payment of each relevant year. Ground 1 of the cross‑appeal challenges the judge's conclusion concerning the last payment of outgoings for each relevant year.
Is any part of Trimat's claim outside the limitation period?
The writ was filed on 13 June 2018. Some of the Payments were made by Trimat before 13 June 2012. Investment pleaded and submitted that those Payments fell outside the relevant limitation period.
In response, Trimat's counsel submitted that the pleaded cause of action only accrued when Investment was no longer able to neutralise the suspension of the requirement to pay operating expenses as, before that, there was only a contingent loss.
The primary judge found that the cause of action accrued at the point in time at which Investment received each individual Payment.[26]
[26] Primary reasons [153].
The judge found that a total of $30,969.95 had been paid outside the limitation period and, had Investment been otherwise liable to make restitution, that amount would have been excluded on the basis that it was outside the limitation period.[27]
[27] Primary reasons [154] - [155].
This conclusion is challenged by ground 4 of Trimat's appeal.
The primary judge's orders
The primary judge entered judgment for Trimat in the sum of $18,958.18, representing the sum of the final payments in each relevant year, together with interest.
Grounds of appeal
Trimat advanced four grounds of appeal, but abandoned grounds 2 and 3 at the hearing of the appeal, rightly accepting that those grounds could not practically advance Trimat's position beyond wherever ground 1 took the appeal.[28]
[28] Appeal ts 45.
Ground 1 contends that the primary judge erred in fact and law in finding that Investment gave good consideration for almost all of the mistaken Payments in that:
(a)The judge erred in deciding this issue as at the date each Payment was made, when the correct approach was to decide the issue on the basis of all of the pleaded and admitted facts, and the concession made by Investment.
(b)The Act operated to permanently disentitle Investment from recovering any operating expenses where no annual estimates and no operating expenses statement had been provided. That conclusion should have controlled the judge's analysis, but instead his Honour analysed the position as at the date of each Payment by having regard to the hypothetical possibility that the temporary suspension effected by the relevant provision of the Act might cease to operate when the pleaded admitted facts demonstrated that the suspension had become permanent. Consequently, no debt existed because there was no accrued obligation, whether absolute or indefeasible, only an inchoate liability still in the process of accruing.
Ground 4 contends that the primary judge erred in fact and law in holding that the cause of action for restitution with respect to each of the Payments accrued at the point in time that Investment received each individual Payment. Rather, the court should have held that the cause of action for restitution accrued only when each Payment ceased to be subject to the temporary suspension by becoming permanent in the manner detailed in ground 1. Consequently, the judge erred in holding that the limitation defence was made out.
Trimat's submissions
Ground 1
In support of ground 1, Trimat advances two contentions, acceptance of either of which would lead to the ground being established:[29]
(1)At the time the Payments were made, the operation of the Act meant that there was no 'debt', as that term is properly understood, owing by Trimat to Investment. Consequently, the Payments were not made for good consideration.
(2)On a proper analysis, Trimat's cause of action only arose when the temporary suspension effected by the Act became permanent, namely when the last payment of each relevant year was made. So analysed, at that point in time there was no debt and so the Payments were not made for good consideration.
[29] Appellant's submissions [10]; appeal ts 2 - 3.
In support of the first contention, Trimat submits that whether a debt existed turns on whether there was a 'debitum in praesenti, solvendum in futuro': if, and only if, that was the case, was there a debt.[30] While Trimat framed its first contention in the language of this Latin maxim without offering a translation, broadly speaking it refers to a debt at present, payable in the future. Trimat pointed to the statement of Lindley LJ in Webb v Stenton,[31] cited and applied in many cases since (many of which We refer to below), that a debt is 'a sum of money which is now payable or will become payable in the future by reason of a present obligation'.
[30] Appellant's submissions [11].
[31] Webb v Stenton (1883) 11 QBD 518, 527.
In support of its first contention, Trimat further submits that:
(1)This approach is supported by a consistent line of cases going back to the 19th century, in which this test has been applied in a variety of statutory consequences to determine whether a debt exists. In this regard, Trimat points to Webb v Stenton;[32] Mack v Commissioner of Stamp Duties (NSW);[33] HJ Wigmore & Co Ltd v Rundle;[34] Federal Commissioner of Taxation v James Flood Pty Ltd;[35] Re Australian and New Zealand Savings Bank Ltd;[36] R v Chief Registrar; Ex parte New Cross Building Society;[37] and Quin v Vlahos.[38]
(2)The reference in statements of principle concerning good consideration by discharge of a 'debt' should be so understood.
(3)Insofar as context may permit any different approach, the approach stated above should at least be the court's starting point, and there would need to be 'some very special reason' to justify departing from it.[39]
(4)Adopting this approach, and adhering to it if it is merely the starting point, enhances the coherence of the law in that it enables commonality of concept to result, as far as possible, in commonality of principle.[40]
[32] Webb v Stenton (523, 525 - 526, 527, 528 ‑ 530).
[33] Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373, 382 ‑ 383, 384.
[34] HJ Wigmore & Co Ltd v Rundle (1930) 44 CLR 222, 227 - 228.
[35] Federal Commissioner of Taxation v James Flood Pty Ltd (1953) 88 CLR 492, 507 ‑ 508.
[36] Re Australian and New Zealand Savings Bank Ltd [1972] VR 690, 692 - 693.
[37] R v Chief Registrar; Ex parte New Cross Building Society [1984] 1 QB 227, 258.
[38] Quin v Vlahos [2021] VSCA 205 [250].
[39] Appeal ts 12 - 13.
[40] Appeal ts 7 - 8 referring to AFSLv Hills Industries [156].
Trimat submits that at the time it made the Payments, the expenses were neither due nor payable as there was no present obligation to pay, given the suspension effected by the relevant provisions of the Act. Because, at the time of payment, Trimat's requirement to pay was suspended and uncertain - it depended on the uncertain question of whether Investment would give annual estimates by the end of the relevant year - there was then no obligation.[41] Rather:[42]
[there was] only an inchoate liability in process of accrual but subject to the contingency that, if the temporary suspension should cease to apply, the amount of the Relevant Payment might retrospectively become owing.
[41] Appeal ts 16 - 18, 25 - 27, 77 - 79.
[42] Appellant's submissions [12].
In other words, Trimat submits, the provisions operate to mean that, at any time before complying estimates are given, there is no obligation, but if such an estimate is given before the expiry of the relevant year, an obligation will retrospectively come into existence in respect of the whole of the relevant year.[43]
[43] Appeal ts 16 - 18, 21 - 22.
Trimat further points to s 15(2) of the Act, which renders void any provision of the Lease that is inconsistent with anything in the Act or with anything that, by the Act, the Lease is taken to provide. It submits that s 15(2) rendered cl 2 of the Lease void, so that there was no obligation under the lease at the time of payment.[44]
[44] Appeal ts 17 - 18, 23 - 27, 29.
Consequently, Trimat submits, there was no debitum in praesenti, solvendum in futuro at the time of each relevant Payment[45] and, at the time of each Payment, outgoings notionally payable under the Lease were neither due nor payable because Trimat was not legally liable to pay any outgoings.[46]
[45] Appellant's submissions [12].
[46] Appellant's submissions [12].
In short, Trimat submits, in support of its first contention, that at the time each Payment was made there was no debt because there was no presently existing obligation to pay.
As to its second contention, Trimat submits that its cause of action for restitution accrued at the time when the temporary suspension became permanent, rather than at the time that Investment received each of the Payments. It submits that it made its claim based on the temporary suspension becoming permanent prior to the action being commenced. While, on its case, it made each relevant mistake at the time of making each Payment, in the unusual circumstances of the statutory framework created by the Act, there was no unjust enrichment until the suspension became permanent.[47] That is because, until that occurred, Trimat had suffered no detriment which, it submits, is a distinct element of a claim founded on unjust enrichment.[48]
[47] Appeal ts 33 - 36.
[48] Appeal ts 37 - 40.
The primary judge erred, it submits, by analysing the legal position solely on the basis of the parties' rights and obligations at the time of each relevant Payment. The judge should have had regard to the admitted pleaded facts which establish the temporary suspension had become permanent before the action was instituted. His Honour erred in not finding that Investment was permanently disentitled from recovering and Trimat permanently not required to pay, the Payments. Further, the judge should have held that the cause of action accrued only upon the temporary suspension becoming permanent.[49]
[49] Appellant's submissions [13] - [14].
Thus, on the primary judge's analysis, no cause of action accrued when each Payment was made, but a cause of action did accrue once the temporary suspension became permanent. When the question of whether each Payment was made for good consideration is approached in that framework, the proper conclusion is that there was, by then, no debt and so there was no consideration for the Payment. On that basis, Trimat was entitled to judgment for the whole amount claimed.[50]
Ground 4: the limitation defence
[50] Appellant's submissions [15].
Trimat submits that its cause of action with respect to each Payment accrued only when the temporary suspension became permanent by virtue of s 12.[51] It relies on its submissions relating to the second contention in ground 1.
[51] Appellant's submissions [26].
On the basis of the primary judge's finding that the relevant 'year' is the lease year ending on 31 October, while Payments before 31 October 2011 were outside the limitation period, Payments made between 1 November 2011 and 13 June 2012 were not outside the limitation period.
According to Trimat, there were seven further payments of $2,815.45 each, totalling $19,708.15. However, Trimat's primary contention is that Investment had the burden of proving the limitation defence, but failed to establish it as it did not prove when each relevant year commenced and ended.[52]
[52] Appellant's submissions [30].
We turn to ground 1.
Trimat's first contention: was there a 'debt' at the time of each Payment?
We begin with Trimat's first contention, which involves analysis of the position at the time the Payments were made. As we will explain in dealing with Trimat's second contention, in our view that is the correct framework for analysis: the position is properly analysed at the time that each relevant Payment was made.
Contrary to Investment's submission, we do not think that ground 1, or Trimat's first contention, reduces to a single question of construction: whether the relevant provisions of the Act should be construed to mean that a tenant who pays a landlord sums in respect of operating expenses is able to recover those sums from the landlord if the required estimates and statements are never given.[53] Rather, on our analysis, there are two steps to be taken. First, the operation and effect of the Act upon the circumstances of this case must be identified. Secondly, the common law principles governing the recovery of mistaken payments and the 'defence'[54] of good consideration must then be applied to the results of the first step of the analysis.
[53] Appeal ts 46 - 47, 50 - 51.
[54] Good consideration is a 'defence' to a claim of mistaken payment in the sense explained in [87] below.
We begin with the first step, which is to identify the operation and effect of the Act on the circumstances as they existed at the time of the making of each Payment.
The effect of the Act as at the time of each Payment
The following discussion concerns all of the Payments found by the primary judge to have been made for good consideration, namely all the Payments except the last payment of each relevant year. We exclude the last payment of each relevant year as, for the reasons given in rejecting ground 1 of the cross-appeal, we would not permit Investment to depart from its concession at trial that such payments were not made for good consideration.
Clause 2 of the Lease provided as follows as to outgoings:
2.Outgoings and payments
2.1The Lessee must pay to the Lessor by way of rent additional to the Annual Rent the percentage calculated pursuant to Item 4 [namely, 100%] from time to time of the Outgoings for any Lease Year or part of it falling within the Term or proportionate part of it (Lessee's Proportion). Outgoings shall accrue (and are by this Lease deemed to accrue) from day to day.
2.2The Lessee shall pay to the Lessor the Lessee's Proportion within 21 days of service by the Lessor upon the Lessee of a written statement detailing the calculation of the Lessee's Proportion. Except in the case of manifest error notified by either party to the other within 21 days of the aforesaid statement then such statement shall be prima facie evidence of the accuracy of the matters set out in the statement.
2.3Notwithstanding anything contained above the Lessor may from time to time notify the Lessee of Lessor's reasonable estimate of the Lessee's Proportion for any period not exceeding one year in advance of such estimate whereupon the Lessee shall pay to the Lessor during such period the estimated amount by equal monthly instalments in advance on the date hereinbefore fixed for payment of the Annual Rent provided that upon computation of the actual Lessee's Proportion any necessary adjustments between such actual percentage amount and the estimated percentage amount shall be made between the parties to this Lease.
Investment rendered a monthly invoice to Trimat for rent and outgoings. The outgoings component of each invoice was an amount, referable to a stipulated month, and provided by Investment pursuant to cl 2.3 of the Lease. In each case Trimat paid the sum invoiced during the month to which the invoice was said to be referable.[55]
[55] With the exception of invoices N008, N009 and 80; see BAB 55 - 56.
Because no annual estimates were given in accordance with the Estimates Provision, the Estimates Provision operated to mean that, as at the time each Payment was made, Trimat was not required to make payment of, and Investment was not entitled to recover, the sum the subject of the invoice.
So, in the events that happened, as at the time each Payment was made, it was the operation of the Estimates Provision that rendered Trimat's belief that the sum the subject of the invoice was due and payable a mistaken one. Any effect of s 12(1d) on Payments made after 1 February 2012 did not materially add to the effect of the Estimates Provision. For that reason, the analysis that follows concerns the operation and effect of the Estimates Provision.
As this court determined in the First Appeal Reasons, in these circumstances, as at the time of each Payment, the Estimates Provision operated to suspend, not to extinguish, Trimat's liability to pay the operating expenses the subject of the invoice.[56] This expression, in the First Appeal Reasons, of the effect of the Estimates Provision necessarily carries with it an acceptance that Trimat had such a liability at the relevant time. In other words, the First Appeal Reasons say, in effect, that Trimat's liability to pay for outgoings existed notwithstanding the operation of the Estimates Provision. A liability must exist in order for it to be suspended. If, as Trimat submits, the effect of the Act is that there is no liability at all unless and until complying estimates are given, the language of suspension would have been inapposite.
[56] First Appeal Reasons [47], [68].
Thus, in our view, this court's earlier determination of the proper construction and operation of the Act is inconsistent with Trimat's submission that the Act operates to mean that unless and until the requirements of the Estimates Provision were complied with, there was no obligation in relation to outgoings.
In our view, s 15(2) of the Act does not assist Trimat.
Contrary to Trimat's submission, the Estimates Provision together with s 15(2) did not render cl 2 wholly void, so that, unless and until the requirements of the Estimates Provision were complied with, there was no obligation created by cl 2.[57] Section 15(2) renders void a provision of a lease to the extent that it is inconsistent with anything in the Act or with anything that by the Act the lease is taken to provide. Consequently, the effect and operation of the Estimates Provision must be identified in order to identify the extent of its inconsistency with cl 2 of the Lease. Put another way, while we accept Trimat's submission that the Estimates Provision has overriding effect, that invites attention to what the effect of that provision is.
[57] Appeal ts 17 - 18, 25 - 27, 29.
By the Estimates Provision, the Lease is taken to provide that Trimat is not required to make payment of, and Investment is not entitled to recover amounts in respect of operating expenses, until one month after the required estimates are given. Thus, in the present case, cl 2 of the Lease is to be read as so providing. That could be done, for example, by inserting a notional cl 2.4 that states:
2.4Notwithstanding anything contained above, the Lessee is not required to make payment of, and the Lessor is not entitled to recover, any sum under this clause 2 until one month after [the required estimates are given].
The language of the provision, in conditioning the requirement to 'make any payment of' and the entitlement to 'recover' amounts in respect of outgoings, is not apt to destroy, or to wholly remove the content of, the substantive obligation to pay imposed by cl 2.1. Reading cl 2 as including the provision imported by the Estimates Provision does not deprive cl 2.1 of its obligation-creating character. Rather, the clause so read creates an obligation but suspends the requirement to perform, and the entitlement to enforce performance of, that obligation until the required estimates are given.
This characterisation of the effect of the Estimates Provision is not altered by the fact that, on the proper construction of that provision, an estimate can only be given during the relevant year, so that after the end of the year, the suspension of the requirement to make payment of outgoings for that year effected by the provision becomes in substance permanent. That feature of the Estimates Provision does not justify or sustain the characterisation of its effect invited by Trimat.
Nothing in the text of the Estimates Provision, nor anything in the First Appeal Reasons, supports characterising the effect of the provision as retrospectively creating an obligation to pay for outgoings if and when complying estimates are provided, where no such obligation had existed before provision of the estimates. Such a characterisation cannot be found in the natural and ordinary meaning of its text and is not justified by reference to the purposes of the provision.
For these reasons, we do not accept Trimat's submission that the effect of the Act is that, at any time before complying estimates are given, there is no obligation to pay outgoings but, if such estimates are given before the expiry of the relevant year, an obligation will retrospectively come into existence in respect of the whole relevant year. Rather, at the time of each Payment, Trimat was subject to an obligation, but its requirement to perform, and Investment's entitlement to enforce performance of, that obligation was suspended until the required estimates were given.
Thus, an essential integer of Trimat's argument on its first contention is not made out.
Common law principles as to the defence of good consideration: what counts as a 'debt'?
General principles
That brings us to the second step of analysis - to apply the common law principles governing recovery of mistaken payments and, in particular, the defence of good consideration.
The law recognises that receipt of a payment caused by mistake on the part of the payer, whether of fact or law, gives rise to a prima facie obligation on the payee to make restitution to the payer of the amount received.[58]
[58] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662, 673; David Securities (379); Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 [67]; Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Company Ltd [2008] WASCA 119 [197].
The law also recognises that various categories of circumstances may displace the payee's prima facie liability. One category of circumstances which will do so is that the payment was made for good consideration such as the discharge of a debt.[59]
[59] ANZ v Westpac (673); David Securities (379 - 381, 405 ‑ 407); AFSL v Hills Industries [100]; Smith v Leveraged Equities Ltd [2020] WASCA 122 [211] ‑ [212]; Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 [12] - [13], [20] - [21]; Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123; (2015) 322 ALR 180 [78] ‑ [86].
In Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation, the court gave as an example of a payment for good consideration, 'the discharge of an existing debt'.[60] In David Securities, the plurality adopted observations of Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd,[61] identifying that the claim may fail where:
payment is made for good consideration, in particular if the money is paid to discharge, and does discharge, a debt owed to the payee (or a principal on whose behalf he is authorised to receive the payment) by the payer or by a third party by whom he is authorised to discharge the debt...
[60] ANZ v Westpac (673).
[61] Barclays Bank Ltd v W J Simms, Son & Cooke (Southern) Ltd [1980] 1 QB 677, 695.
As outlined in [54] above, Trimat submits that, in these passages, the references to a 'debt' should be understood as encompassing, and being confined to, where there was a 'debitum in praesenti, solvendum in futuro'.
We do not accept this submission. In our view, the statements of principle in [88] above explaining the defence of good consideration are not to be construed as if they were a statute, or as if they were an exhaustive statement of the principle, marking its metes and bounds. In AFSL v Hills Industries,[62] the plurality observed that attempts to describe the defence of change of position comprehensively, or to chart its metes and bounds, are apt to mislead by distracting attention from the content of the principle to the manner of its expression. In our view, the same is true of the defence of good consideration.
[62] AFSL v Hills Industries [98].
We turn to consider the principal cases on which Trimat relies, to explain why, in our view, what is said in those cases does not govern what is meant by a 'debt' for the purpose of this case.
The cases relied on by Trimat
None of the cases Trimat cites concerned the question of whether and in what circumstances the discharge of an obligation amounts to good consideration for the making of a payment for the purpose of the relevant defence to a restitutionary claim for a mistaken payment. Rather, each case determined whether there was a 'debt' 'due', 'accruing' or 'owing', or a liability 'incurred' in other contexts and for other purposes. In our view, the law does not give a uniform answer to the question whether, in given circumstances, a debt exists. Rather, the meaning and application of the concept of a 'debt' is influenced by the context in which, and purpose(s) for which, the question is asked.
In Webb v Stenton, a judgment debtor was the beneficiary of a trust under which he was entitled to a share of the income, payable half‑yearly. The debtor assigned his interest. The question was whether the judgment creditor could attach moneys in the hands of the trustees of the judgment debtor. That could occur, under the relevant legislation, if there was 'a debt owing or accruing'. In that context, the court construed the phrase 'debts owing or accruing' as encompassing cases where there was a debitum in praesenti, solvendum in futuro.[63] Lindley LJ described a debt as 'a sum of money which is now payable or will become payable in the future by reason of a present obligation'.[64]
[63] Webb v Stenton (523 - 524, 527, 529).
[64] Webb v Stenton (527).
The court in Webb v Stenton considered that it was not enough that, in the future, there may arise a debt, however probable and however soon that may be thought or expected to occur.[65] That indicates, or tends to indicate, that a contingent debt, or other contingent liability, is not within the ambit of the rule authorising attachment. Given the nature and purpose of an order of attachment, in the nature of a garnishee order, this might be thought to be an unsurprising conclusion.
[65] Webb v Stenton (524 - 526, 527, 529).
Re Australia and New Zealand Savings Bank Ltd also concerned a rule permitting attachment of a debt by way of garnishee order. The rule was in terms identical to those considered in Webb v Stenton, requiring there to be a debt 'owing or accruing'. The Full Court of the Supreme Court of Victoria (Winneke CJ, Pape and Crockett JJ) adopted the approach in Webb v Stenton.[66]
[66] Re Australia and New Zealand Savings Bank Ltd (691 - 693).
In some contexts, of which Webb v Stenton is an example, the contingent nature of an obligation to pay means that it is not properly characterised as a debt for the relevant purpose.[67] However, that is not always so. As will be seen, in some other contexts, the contingent nature of an obligation to pay money will not preclude its characterisation as a debt.
[67] For another example, see Bakewell v Deputy Federal Commissioner of Taxation(SA) (1937) 58 CLR 743, 754, referred to in [99] below.
Mack v The Commissioner of Stamp Duties[68] concerned a deed in which a father covenanted to his daughters to pay on demand a sum of money, and in the meantime to pay interest on the unpaid principal. The father died before the principal sums were paid. The question was whether the sums promised by the deed were actually 'due and owing' by the deceased at the time of his death, within the meaning of a provision of the Stamp Duties Act 1898 (NSW), which affected the extent of duty payable upon the father's estate. Isaacs J quoted an earlier decision to the effect that, 'prima facie, if there be nothing in the context to give the words 'debts due' a different construction, they would include all sums certain which any person is legally liable to pay, whether such sums had become actually payable or not'. The court held that the fact that the debt was not payable because, no demand having been made, the time for payment had not arrived, did not prevent it being a debt 'actually due and owing' by the father.[69]
[68] Mack (382 ‑ 383).
[69] Mack (379, 382 ‑ 383, 384).
The reference, in this passage on which Trimat relies, to whether context gives the phrase a different construction should be noticed.
Similar language in the Estate Duty Assessment Act 1914 (Cth), again governing the amount on which estate duty was payable, was construed as not encompassing a contingent liability: Bakewell v Deputy Federal Commissioner of Taxation.[70]
[70] Bakewell v Deputy Federal Commissioner of Taxation(SA) (754, 767 - 768).
HJ Wigmore & Co Ltd v Rundle concerned a hire purchase agreement under which, after a stipulated period, the hirer had the option of determining the agreement and returning the equipment the subject of it, then paying a proportion of the rental up to the date of determination. Under s 9 of the Bills of Sale Amendment Act 1906 (WA), in order to be a creditor and so entitled to lodge a caveat against the registration of a bill of sale, the caveator must be a person to whom the grantor 'is indebted on any account whatsoever … whether the debt is due or to accrue due'. The question was whether the hirer was 'indebted' in relation to future instalments of hire. The court held that it was not.[71] In so holding, the court said that the statutory definition encompassed only debts which were owing, whether payable immediately or at some future time, and did not include inchoate debts or debts the title to which was in the process of accruing.[72] The court adopted the construction of the words 'debts owing or accruing' in Webb v Stenton, so that s 9 applied only to cases in which there is a debitum in praesenti, solvendum in futuro.[73]
[71] Wigmore v Rundle (228 - 229).
[72] Wigmore v Rundle (227 - 228).
[73] Wigmore v Rundle (228).
Federal Commissioner of Taxation v James Flood Pty Ltd concerned whether a taxpayer employer was entitled to a tax deduction against its income for its provision of annual leave for employees who had not yet completed 12 months' service, in circumstances in which, broadly summarised, the award entitled an employee who had completed 12 months' service to 14 days of annual leave. The relevant deduction provision permitted the deduction of losses or outgoings incurred in gaining or producing assessable income, or necessarily incurred in carrying on a business for the purpose of gaining or producing such income. The court unanimously held that those amounts had not been 'incurred' in the year for which the deduction was claimed. In so concluding, the court said as follows:[74]
In respect of [employees who had not yet qualified for annual leave] there was no debitum in praesenti solvendum in futuro. There was not an accrued obligation, whether absolute or defeasible. There was at best an inchoate liability in process of accrual but subject to a variety of contingencies.
[74] Federal Commissioner of Taxation v James Flood (507 - 508).
None of these cases, or the statements of principle contained in them, suggest that the question of whether a debt exists is governed by the same universal rule, regardless of the context in which, and purpose for which, the question is to be determined. To the contrary, Isaacs J said in Mack, in the passage quoted above at [97], that regard must be had to the context in which the question arises.
A contextual approach to the 'debt' enquiry
As Gleeson CJ said in Hawkins v Bank of China, the word 'debt' is not a word of precise and inflexible meaning. In Hawkins v Bank of China, in a passage adopted by the Victorian Court of Appeal in Quin v Vlahos,[75] Gleeson CJ observed that, used in a statute, the word 'debt' should be interpreted and applied in a practical, commonsense way, consistent with the context and with the statutory purposes.[76] His Honour's observation has been adopted in numerous cases, including in the context of insolvent trading[77] and in other statutory contexts.[78]
[75] Quin v Vlahos [250].
[76] Hawkins v Bank of China (1992) 26 NSWLR 562, 572.
[77] For example, Shephard v ANZ Banking Corporation Ltd (1996) 41 NSWLR 431, 433 - 434.
[78] For example, ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 309 ALR 445 [684].
In our view, a like approach should be adopted in considering what is encompassed by 'a debt' in the context of determining whether, for the purpose of establishing a defence to a restitutionary claim for a mistaken payment, the payment was made for good consideration because it discharged a debt. Even more so than in a statute, in the context of a statement of common law principles, the word 'debt' should not have an inflexible meaning attributed to it. To do so would be to fall into the trap warned against by the plurality in AFSL v Hills Industries.[79]
[79] AFSL v Hills Industries [98]; see [90] above.
In other words, whether there was a 'debt' - discharge of which amounts to good consideration for a payment - is to be determined in a practical, common sense way having regard to the purpose of the enquiry, namely whether a claim for restitution of a mistaken payment should fail on the ground of good consideration.
Hawkins v Bank of China concerned the application of the then applicable insolvent trading provision, contained in s 556 of the Companies (New South Wales) Code 1981 (NSW). Application of that provision required identification of whether and when a 'debt' had been 'incurred'. In that context, Gleeson CJ said as follows:[80]
'Debt' is capable of including a contingent liability. The word was used in that sense in s 291 of the Companies Act 1961, which referred to 'debts payable on a contingency'. That expression did not involve a contradiction in terms. Dictionaries define 'debt' as a liability or obligation to pay or render something. Such a liability may be conditional as well as present and absolute. In Williams v Harding (1866) LR 1 HL 9, there was an issue as to the effect of a statute dealing with insolvency which made a debt incurred by a non-trader insufficient to found an adjudication of bankruptcy unless it was contracted after a certain date. The debt in question in that case was a liability to pay calls made by a joint stock company. The question was whether the appellant's debt was contracted when he signed the deed of settlement making him a shareholder, or when the calls were made. It was held that the former was the case. Lord Cranworth LC said (at 21) that the date of the appellant's debt was when he executed the deed, and Lord Chelmsford (at 24) referred to the amount of the calls as a debt to which the appellant was 'antecedentally liable'.
Similarly, the word 'incurs' takes its meaning from its context and is apt to describe, in an appropriate case, the undertaking of an engagement to pay a sum of money at a future time, even if the engagement is conditional and the amount involved uncertain. Once it is accepted that 'debt' may include a contingent debt then there is no obstacle to the conclusion that, in the present context, a debt may be taken to have been incurred when a company entered a contract by which it subjected itself to a conditional but unavoidable obligation to pay a sum of money at a future time. This is such a case. (emphasis added)
[80] Hawkins v Bank of China (572). See also (576) (Kirby P).
It may be noted from the decision in 1866 in Williams v Harding,[81] to which Gleeson CJ referred in this passage quoted above, that the need to give attention to context in determining whether there is a 'debt' is nothing new.
[81] Williams v Harding (1866) LR 1 HL 9, 21.
The approach of Gleeson CJ in Hawkins v Bank of China was adopted and applied to the current form of the insolvent trading provision under the Corporations Act 2001 (Cth), s 588G, in Quin v Vlahos. In that case, the Victorian Court of Appeal held that a company had 'incurred' 'debts' to creditors who had supplied books to the company, rejecting an argument that there were no debts because the books were supplied on a 'sale or return' basis.[82] The court concluded that the company's obligation to pay was 'unavoidable' in the sense that it could not unilaterally decide to return the books rather than pay for them. Thus, as a matter of common sense, the obligation was properly characterised as a debt.[83]
Adopting a contextual approach, contingent debts are not excluded
[82] Quin v Vlahos [249] - [257].
[83] Quin v Vlahos [257].
In Hawkins v Bank of China, Gleeson CJ and the other members of the court held[84] that to enter a guarantee for the payment of a sum was to incur a debt for the purpose of s 556 and that this was so notwithstanding that the guarantee gave rise only to a contingent liability.
[84] Hawkins v Bank of China (572, 576, 578).
Other cases have recognised that, in some contexts and for some purposes, a contingent debt is nevertheless a debt.[85]
[85] For example, ABN AMRO Bank v Bathurst Regional Council [684]; Charlton v National Australia Bank Limited [2021] NSWCA 111 [46].
In our view, in the present context, a payment made to discharge liability under a guarantee would fall within the ambit of a payment made for good consideration because it was made to discharge, and did discharge, a debt. In other words, in our view, the contingent nature of a debt does not, ordinarily at least, prevent the discharge of it being the discharge of a debt for the purposes of the defence of good consideration, at least where the contingency is outside the control of the promisor. In such circumstances, the paying promisor receives a benefit of substance in being relieved of an obligation that was, from its perspective, unavoidable.
Disposition: application of these principles
In the present case, for the reasons already given, at the time of each Payment, Trimat was under an obligation to pay the outgoings the subject of the invoices, albeit that, at that time, it was not required to make each Payment.
Trimat's submissions emphasised that, at the time of each relevant Payment, it was uncertain whether Trimat would ever be required to make the payment, since that depended upon the uncertain event of whether Investment provided the necessary estimates before the conclusion of the relevant year. There is room for doubt as to whether that feature of Trimat's obligation means that it is properly characterised as contingent, as what is contingent might be said to be the requirement to perform, and the right to enforce, the obligation rather than the existence of the obligation itself. But assuming, favourably to Trimat, that its obligation to pay is properly characterised as contingent, for the reasons already given and in [114] below, in our view, the contingent nature of the debt does not prevent its discharge being the discharge of a debt for the purposes of the defence of good consideration.
At the time of making each payment, Trimat had no control over whether Investment satisfied the (hypothesised) contingency by providing the necessary estimates before the conclusion of the relevant year. Thus, from Trimat's perspective, its obligation to pay the outgoings was 'unavoidable'.[86] When Investment received a Payment, Trimat's obligation to pay the sum the subject of the Payment was thereby discharged. The discharge of that obligation was a benefit of substance to Trimat. The discharge of the obligation - properly characterised as a debt for present purposes - was, in our opinion, good consideration for the Payment.
[86] Hawkins v Bank of China (572); Quin v Vlahos [250], [257].
In light of what we have already said, and contrary to Trimat's submission,[87] there is no error revealed in the primary judge's usage of, and conclusion as to, there being a 'debt' owed by Trimat to Investment. The judge adopted what had been said by Barrett J in Main Camp Tea Tree Oil v Australian Rural Group.[88] Barrett J referred to a debt as a payment obligation that may exist, but not yet be either due or payable. The primary judge used debt in this sense, as referring to a payment obligation that exists.[89] For the reasons we have given, in our respectful opinion his Honour's conclusion that, at the time of each Payment, an obligation existed, was correct.
[87] Appeal ts 78 - 79, 82 - 84.
[88] Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [17], see [36] above.
[89] Primary reasons [94], [96].
Consequently, Trimat's first contention in support of ground 1 fails.
Ground 1: Trimat's second contention: when did the claim arise?
We turn to Trimat's second contention - that its cause of action accrued at the time when the temporary suspension became permanent, not at the time that Investment received each of the Payments. For the reasons that follow, we do not accept that contention.
Trimat's contention should be considered in the framework of the legal principles that explain the architecture of the law of unjust enrichment and of mistaken payments.
Unjust enrichment is a unifying legal concept, not a definitive legal principle. So understood, it explains the framework for analysis in determining a claim for money had and received.[90] In Equuscorp Pty Ltd v Haxton,[91] French CJ, Crennan and Kiefel JJ summarised the effect of David Securities in this respect:
.recovery depends upon enrichment of the defendant by reason of one or more recognised classes of 'qualifying or vitiating' factors;
.the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust;
.unjust enrichment so identified gives rise to a prima facie obligation to make restitution;
.the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust.
[90] Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 [29] ‑ [30].
[91] Equuscorp v Haxton [30].
As already noted, the law recognises that receipt of a payment caused by mistake on the part of the payer, whether of fact or law, gives rise to a prima facie obligation on the payee to make restitution to the payer of the amount received. It is unnecessary for the payer to prove unjustness over and above the mistake. It has been so held by the High Court,[92] and by this court.[93]
[92] David Securities (379).
[93] Alpha Wealth [197].
The payee's enrichment is unjust in a case of mistaken payment because the payer's intention to transfer the money is vitiated by its mistake.[94]
[94] David Securities (378 - 379).
Consequently, it is the making of the payment by reason of the mistake that gives rise to the payer's cause of action. The focus of a claim of unjust enrichment is the moment of enrichment; in other words, when the payment is made and received. As the plurality explained in David Securities:[95]
From the point of view of the person making the payment, what happens after he or she has mistakenly paid over the money is irrelevant, for it is at that moment that the defendant is unjustly enriched.
[95] David Securities (385); see also Alpha Wealth [202].
Thus, the foundation of a claim for restitution of a mistaken payment in unjust enrichment directs attention to the time of payment.
As already noted, one category of circumstance which displaces the prima facie liability of the recipient of the mistaken payment is that the payment was made for good consideration. Whether that is so directs attention to the position as at the time of payment. The discharge of debt must occur by the payment.[96] The position was explained by Brennan J in David Securities.[97] His Honour observed where a payment made under a mistake is said to have been made for good consideration, it is at the point of receipt by the payee that it can be determined whether and to what extent the payee has been unjustly enriched.
[96] Smith v Leveraged Equities [212].
[97] David Securities (390).
Trimat accepts the above statement of principles as general principles, but says that the special and unusual circumstances of this case take it outside those principles. Specifically, Trimat submits that there was no claim at the point of payment because at that time there was no unjustness. That in turn arose because, at that time, Trimat had suffered no detriment.
We do not accept these submissions.
First, the High Court has stated in unqualified terms that, in a claim for mistaken payment, it is unnecessary for the payer to prove unjustness over and above the mistake. It is the vitiating factor of mistake that makes the payee's enrichment unjust.[98]
[98] David Securities (378 - 379).
To argue that something more than the mistake is needed to establish 'unjustness' suffers from the flaw identified in David Securities[99] - it assumes that unjust enrichment is a definitive legal principle, when it is no more than a unifying legal concept. Trimat seeks to decouple the unjustness from the mistake, so that the unjustness enquiry is a distinct one. But in Australian law there is no role for unjustness, independent of mistake or other vitiating factor, as a definitive criterion of liability. Rather, unjustness arises if and because the case fits into an established category such as mistake, duress or others mentioned by the plurality in Equuscorp v Haxton.[100] As their Honours observed, that is not to deny the prospect of the emergence of novel occasions of unjust enrichment.[101] But, properly understood, Trimat's approach involves substantially recasting a claim that falls within an established category, rather than recognising a novel occasion or new category of unjust enrichment.
[99] David Securities (378 - 379).
[100] Equuscorp v Haxton [30]. See also AFSL v Hills Industries [73] - [74] and the cases in footnote 204; and Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 [74], [199] and [213].
[101] See also Mann v Paterson Constructions [213].
Secondly, Trimat did not identify any case in Australian law in which the fact that a payment was made by mistake was insufficient to satisfy the 'unjustness' element.
Thirdly, in advancing its contention that it suffered no detriment until the suspension of its liability became permanent, Trimat relied upon its construction of the Act as imposing a retrospective liability if and when the required estimates are given.[102] We have explained in [75] - [83] above why we do not accept that view of the Act's effect.
[102] Appeal ts 36, 42.
Fourthly, if and insofar as detriment on the part of the payer is an element of a claim for mistaken payment, Trimat suffered sufficient detriment in that it made a Payment, at a time when it was not obliged to do so, by reason of its mistaken belief that it was so obliged. Consequently, immediately following the Payment, had Trimat discovered the true legal position, it had a prima facie claim to recovery of the Payment, subject to any defences of the payee. Its claim arose - if at all - at the time of payment.
For these reasons, Trimat's second contention fails.
Ground 1: conclusion
Ground 1 fails as a consequence of our rejection of both of Trimat's contentions in support of it.
Ground 4
Ground 4, which concerns whether certain claims were statute‑barred, does not arise for consideration, given that ground 1 has failed. The claims having failed, no question arises as to whether they were statute‑barred. In any event, ground 4 fails because it is founded on Trimat's second contention, which we have rejected.
Conclusion on the appeal
For the above reasons, we would dismiss the appeal.
That brings us to the cross-appeal.
Cross-appeal ground 1: should Investment be permitted to depart from its concession at trial?
Ground 1 of Investment's cross‑appeal challenges the primary judge's finding that the good consideration defence did not apply to the last payment of each relevant year.
As Investment acknowledges,[103] in so finding, the judge acted on Investment's concession at the trial.[104] It submits that the concession had no effect on the conduct of the case and, being a concession on a point of law, would not have made any difference to the evidence led by the parties.[105]
[103] Cross‑appellant's submissions [1]; appeal ts 64.
[104] ts 74 - 75, 221 - 222.
[105] Cross‑appellant's submissions [3].
Investment further submits that there would be no denial of procedural fairness to Trimat as it has the opportunity to address the merits of the argument in the context of the appeal and the cross‑appeal. Consequently, leave should be granted.[106]
[106] Cross‑appellant's submissions [4] - [5].
The approach of an appellate court to an appeal ground that advances an argument not relied on at first instance is well established. The principles have been outlined in many cases including, by way of example, in Zerjavic v Chevron Australia Pty Ltd.[107] We adopt that summary without repeating it. Relevantly for present purposes:
1.An appellant is bound by the conduct of his or her case at trial. The opportunity to assert a new case at another trial should only be granted where the interests of justice 'require it' and such a course can be taken without prejudice to the other party.
2.Other than in exceptional circumstances it is contrary to principle to allow a party to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the trial when there was an opportunity to do so. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial.
3.A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at the trial.
4.Even if no question of further evidence arises, it may not be in the interests of justice to allow a new point to be raised on appeal.
[107] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] ‑ [67].
The second and last of these points are significant for present purposes. Investment's submissions went no further than to demonstrate that the new point could not possibly have been met by calling evidence at the trial. The mere fact that the new point does not involve any factual issue does not mean that the new point should be permitted to be raised for the first time on the appeal. It must still be demonstrated that determination of the new point is required by the interests of justice.[108] The need to ensure finality in litigation is a weighty consideration in determining what is required by the interests of justice.[109] Adapting what was said in the context of a criminal trial by Hayne J in Crampton v The Queen,[110] an appeal is for the correction of error at trial, it is not an opportunity to make a second, different case from the case made at trial.
[108] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [53].
[109] Zerjavic v Chevron Australia [67], [168]; Wreford v Lyle [2021] WASCA 20 [88] ‑ [90].
[110] Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 [157].
This is not simply a case where the point sought now to be made on appeal was not taken at trial. Rather, this was a matter expressly conceded by Investment. Further, Investment deployed its concession in support of its submissions on the question of whether the other Payments were supported by good consideration.
At the trial, counsel for Investment framed his submissions on the question of good consideration by reference to a distinction between the position of all Payments prior to the last payment, on the one hand, and, on the other hand, the final payment, by which point the suspension of the liability was said to have become permanent.[111] In that manner, counsel sought to fortify the submissions concerning the bulk of the Payments by reference to the conceded position concerning the last payment of each year.
[111] ts 74 - 75, 221 - 222.
Investment has fallen well short of satisfying us that the interests of justice require that it be permitted to withdraw its concession and to raise a new point as to the last payment of each year.
For these reasons, ground 1 of the cross‑appeal fails.
Ground 2 of the cross‑appeal: who, on behalf of Trimat, decided to make the Payments?
Investment's submissions
By ground 2 of the cross‑appeal, Investment contends that the primary judge erred in fact in finding that it was Mr Flint, rather than Mrs Flint, who decided to make the Payments.
After some equivocation, Investment properly accepted[112] that the primary judge applied the correct test as to what person or persons are relevantly the company, namely who was the person or persons who decided to make the payment.[113]
[112] Appeal ts 71 - 72.
[113] Primary reasons [26], [62] citing North Adelaide Service Partnership v Retail Employees Superannuation [113].
Investment's principal submissions were as follows:
(a)Mr Flint was sole director, but equal shareholder with Mrs Flint. Mrs Flint was employed as a bookkeeper.[114] The business was a 'family affair',[115] reflected in Mr Flint's use of 'we' in the course of his evidence, in which Mr Flint and Mrs Flint worked together in the operation of the business.[116]
(b)Mrs Flint's role included 'dissecting' the invoices from Investment in which they claimed outgoings under cl 2.[117]
(c)Those invoices were annotated with Mr Flint and Mrs Flint's handwriting.[118] The majority of this handwriting was that of Mrs Flint, Mr Flint's being limited to recording the date and amount paid.[119]
(d)At one point in cross‑examination, Mr Flint accepted that the annotations on the invoice dated 30 August 2012 recorded or reflected (i) Mrs Flint working out how much Investment should pay and her telling him what Trimat should pay and (ii) that Mr Flint caused Trimat to pay that amount because Mrs Flint told him to pay it.[120]
(f)Notwithstanding Mr Flint's attempts to downplay Mrs Flint's role in the business' operation,[121] Mr Flint conceded that Mrs Flint checked the invoices, he relied on her checking of them, and he paid the invoices trusting her checking.[122] This 'checking' involved 'Mrs Flint circling or ticking the amount to be paid, and, at least sometimes, writing the word "pay" next to the amount due as a direction to Mr Flint to make the relevant Payment'.[123]
(e)Mr Flint's contention that, on occasion, he decided to pay an additional amount (the repayment of a rent deferral), was irrelevant to the issue of the Payments. In any event, Mr Flint accepted that even on these occasions he relied on Mrs Flint with regards to the payment of the operating expenses portion of the Payment.[124]
(f)Finally, Investment addresses the 'two occasions' identified by the primary judge in which Mrs Flint identified external queries to be made prior to the payment of an invoice.
i.As to the first (involving a discrepancy regarding land tax), Investment submits that the evidence does not support a conclusion that Mr Flint made the enquiry, and the fact that Mrs Flint recorded the discrepancy implies that she was the one who conducted the enquiry with Investment's bookkeeper.[125]
ii.As to the second (involving the reduction in strata levies), Investment states that relevant reduction was agreed to by a body of which Mr Flint was a member and thus it is 'hardly surprising' that he would be the one to make the enquiry.[126]
[114] Cross‑appellant's submissions [13].
[115] Cross‑appellant's submissions [13].
[116] Cross‑appellant's submissions [24].
[117] Cross‑appellant's submissions [13].
[118] Cross‑appellant's submissions [14].
[119] Cross‑appellant's submissions [15].
[120] Cross‑appellant's submissions [17], referring to ts 150.
[121] Cross‑appellant's submissions [16].
[122] Cross‑appellant's submissions [18].
[123] Cross‑appellant's submissions [19].
[124] Cross‑appellant's submissions [21].
[125] Cross‑appellant's submissions [26].
[126] Cross‑appellant's submissions [27].
Investment submits that, in light of this evidence, the primary judge should have found, and erred in not finding, that:[127]
(a)Mr Flint relied on Mrs Flint to determine what amounts should be paid by way of outgoings each month.
(b)He made the Payments relying on her determination and decision of what should be paid.
(c)Mr Flint's state of mind about the legal effect of the Act was not causative of the Payments.
(d)As a result, it was Mrs Flint's, not Mr Flint's, state of mind which should have been attributed to Trimat.
Disposition
[127] Cross‑appellant's submissions [22] - [23].
In our view, ground 2 of the cross‑appeal is without merit.
Although not explained, this challenge to a finding of fact was framed on an apparent assumption that the test for identifying appellable error was of the kind described in Warren v Coombes.[128] There is, at least, room for doubting that assumption. While the ground can be resolved on the basis implicit in Investment's submissions, we do so by way of assumption favourable to Investment and should not be taken to have so decided.
[128] Warren v Coombes (1979) 142 CLR 531.
Mr Flint correctly stated that he was the sole director of Trimat. In his evidence‑in‑chief, however, he said he was the sole shareholder. That was not the case. His wife was also a shareholder, as he accepted when the relevant ASIC document was put to him in cross‑examination.
Mr Flint's evidence was that his wife was employed by Trimat as a bookkeeper.
The following evidence given by Mr Flint and accepted by the primary judge,[129] was not challenged in cross‑examination:[130]
… Can you explain, please, to the court what the procedure was which preceded payments being made under the lease?‑‑‑We would receive the invoice from Investment Club - - -
Yes?‑‑‑- - - and then, as we paid all of our other invoices, we - we would then pay the invoice.
Okay. And why were the payments made?‑‑‑Because under the - my understanding of the contract at the time is that we were obliged to make the payments.
…
All right. Now, had - up until 2017, had you heard of legislation called the Commercial Tenancy (Retail Shops) Agreements Act 1985?‑‑‑No. I - I was completely unaware that the Act existed.
Okay?‑‑‑I was only aware of the - of the lease.
Okay. So when - when you said you were aware - you were unaware of the Act, you're - is it - is it to be understood that you're also unaware of the requirements in the Act?‑‑‑Yes. I understand since that conversation that there are a number of things in the Act - or a number of requirements in the Act of the landlord that required him to furnish me with certain documents, and annual budgets and things along those nature. But I was completely unaware of those. If I'd known that I wasn't required to pay the invoices that were presented to me at the time, I wouldn't have paid them. (emphasis added)
[129] Primary reasons [62].
[130] ts 115, 116.
In the first italicised passage, the reference to 'we' is naturally to be understood as a reference to Trimat, and not to encompass Mr and Mrs Flint, as Trimat was the tenant under the Lease. The reference, in the question as to why the payments were made, to 'my understanding' should be noticed. The second italicised passage is expressed in terms of how he would have acted, namely, 'If I'd known' that payment was not required, 'I wouldn't have paid ...'.
By the evidence quoted in [154] above, Mr Flint said, in substance, that had he known that Trimat was not legally obliged to make the Payments, he would have caused Trimat not to pay them.
Mr Flint's evidence to this effect was not directly challenged in cross‑examination.
Investment relies heavily on parts of Mr Flint's evidence given in the context of cross‑examination about various individual invoices. Investment submits that the effect of that evidence was to require the primary judge to find that the decision as to whether to pay invoices for outgoings was, by arrangement between Mr and Mrs Flint, entirely a matter for the decision of Mrs Flint, notwithstanding that Mr Flint was the sole director of Trimat. In our view, the evidence falls far short of sustaining this ambitious proposition.
Relevantly, the cross‑examination began with reference to an individual invoice, following which the following exchange occurred:[131]
So you were keeping a close eye on what you were being invoiced to ensure these invoices were correct?---Yes.
To be sure you were [not] being charged for anything you didn't owe?
‑‑‑Yeah.
And you didn't at this stage have any reason to doubt that you owed the outgoings you were invoiced?---No.
[131] ts 149.
By reference to another invoice, Mr Flint said that his wife had made a note of the amount that he was to pay and that was the amount that he had paid. He agreed that Mrs Flint worked out how much he should pay and so he paid what she had told him to pay.[132]
[132] ts 150.
It will be seen that, in its substance, the cross‑examination is directed to the question of the amount that should be paid. With the exception of the last question quoted in [159] above, it was not directed, in any respect, to the different question of whether there is any legal liability to pay any amount in respect of outgoings. The last question merely invited confirmation by Mr Flint that at the stage in question, he had no reason to doubt that the outgoings invoiced were owed.
Again, by reference to amounts written on another invoice, Mr Flint agreed with the proposition that his wife had made some handwritten annotations, added up the amounts to the sum written, circled it and 'instructed' him to pay it.[133] Mr Flint agreed that he had paid it 'because she told [him] to'.[134] He agreed that he understood that she had checked and determined that the amount should be owing and that he had paid it because he relied on her.[135]
[133] ts 151.
[134] ts 151.
[135] ts 152.
A little later, Mr Flint agreed that the practice had developed that his wife checked invoices and that he was relying on her checking and paying because he trusted her assessment. He agreed that that was the case unless there was something that he knew that perhaps she did not.[136]
[136] ts 154.
This evidence is consistent with a practice, between Mr and Mrs Flint, in which:
(1)Mrs Flint checked the amounts in the invoices, including as to individual components of the outgoings, and informed Mr Flint that she considered the amount in the invoice, or an amount written by Mrs Flint, should be paid; and
(2)Mr Flint then deciding, in light of that advice, and subject to him having any contrary reason or indication, to make the payment.
Investment's submission that Mr Flint's mistake, in the form of ignorance about the Act, was not causative of the Payments cannot be accepted. The logic of that submission asserts that, had Mr Flint known the true effect of the Act - that Trimat was not then required to pay for outgoings - he would nevertheless have caused Trimat to pay the invoices because he had been instructed to do so by Mrs Flint and had no decision‑making role. There is more than an air of unreality about such a suggestion.
In our view, the question of what amount was to be paid should not be equated with the question of whether, under the Lease, Trimat had any liability to make payments in respect of outgoings. The evidence did not sustain, much less require, a conclusion that, by arrangement between Mr and Mrs Flint, (i) the question of whether the Payments were to be made was a matter entirely for Mrs Flint, and (ii) Mr Flint's role in signing the cheques was merely ministerial, with him having no decision to make.
No error in the primary judge's finding has been demonstrated.
For these reasons, ground 2 of the cross‑appeal is without merit.
Conclusion
For the above reasons, the appeal and the cross‑appeal should each be dismissed.
We would hear from the parties on the question of costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BM
Associate to the Honourable Justice Beech
4 MARCH 2022
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