Trimat Holdings Pty Ltd v Investment Club Pty Ltd [No 2]
[2021] WADC 26
•31 MARCH 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRIMAT HOLDINGS PTY LTD -v- INVESTMENT CLUB PTY LTD [No 2] [2021] WADC 26
CORAM: GETHING DCJ
HEARD: 10, 11 & 12 March 2021
DELIVERED : 31 MARCH 2021
FILE NO/S: CIV 2167 of 2018
BETWEEN: TRIMAT HOLDINGS PTY LTD
Plaintiff
AND
INVESTMENT CLUB PTY LTD
Defendant
Catchwords:
Retail shop tenancy - Effect of non-compliance with the requirement to provide a tenant with information about outgoings - Whether terms implied by statute preclude any defence to a claim in restitution for payment under a mistake of law
Restitution - Payment of money under a mistake of law - Whether ignorance of a statutory provision can constitute a mistake of law - Application of good consideration defence - Application of good faith change of position defence - Whether it is sufficient to give rise to a defence to a claim in restitution that it would be unconscionable to require the recipient to repay the money
Legislation:
Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA), s 12
Limitation Act 2005 (WA), s 13(1)
Property Law Act 1969 (WA), s 124, s 125
Result:
Judgment for the plaintiff for part of the claim; action otherwise dismissed
Representation:
Counsel:
| Plaintiff | : | Mr D H Solomon |
| Defendant | : | Mr E Heenan |
Solicitors:
| Plaintiff | : | Solomon Brothers |
| Defendant | : | Irwin Legal |
Case(s) referred to in decision(s):
Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd [2008] WASCA 119
Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17;(1988) 164 CLR 662
Australian Financial Services and Leasing Pty Ltd v Hills Industries Limited [2014] HCA 14; (2014) 253 CLR 560
Barclays Bank Ltd. v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677
Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269
Brian Gardner Motors Pty Ltd v Bembridge [2000] WASCA 400
Citigroup Pty Ltd v National Australia Bank Ltd [2012] NSWCA 381; (2012) 82 NSWLR 391
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353
Dextra Bank & Trust Company Ltd v Bank of Jamaica [2001] UKPC 50; [2002] 1 All ER (Comm) 193 PC
Easy Stay Mining Accommodation Pty Ltd v Mt Morgans WA Mining Pty Ltd [2020] WASCA 86
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
G J Coles & Co Ltd v Goldsworthy [1985] WAR 183
Holt v Markham [1923] 1 KB 504
Hons v Hons [2010] NSWSC 247
Hookway v Racing Victoria (2005) 13 VR 444
Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v D F McCloy Pty Ltd (No 1) (1991) 28 FCR 151
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 232 CLR 63
Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [2002] NSWSC 219; (2002) 20 ACLC 726
North Adelaide Service Partnership v Retail Employees Superannuation Pty Ltd [2019] SASC 5
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161
Pitt v Holt [2013] 2 AC 108
Smith v Leveraged Equities Ltd [2020] WASCA 122
Southage Pty Ltd v Vescovi [2015] VSCA 117; (2015) 321 ALR 383
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
The State of Western Australia v Newton [No 3] [2020] WASC 319
The State of Western Australia v R [2007] WASCA 42
Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89,
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2019] WADC 81
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2020] WASCA 63
Workpac Pty Ltd v Rossato [2020] FCAFC 84
GETHING DCJ:
Introduction
From 1 November 2010 to around November 2017 the plaintiff, Trimat Holdings Pty Ltd (Trimat), leased retail premises from the defendant, Investment Club Pty Ltd (Investment) pursuant to a written lease executed in around November 2010 (Lease).[1]
[1] Exhibit 2.
While the Lease was in force, Trimat made payments totalling $253,276.98 to Investment in respect of Investment's outgoings and operating expenses for the periods beginning on 1 July 2011 and ending on 31 August 2017 (Outgoings Payments).
In June 2018 Trimat commenced proceedings in the District Court seeking to recover the Outgoings Payments. It asserted that Investment failed to comply with the relevant provisions of the Commercial Tenancies (Retail Shops) Agreements Act 1985 (WA) (CTRSA) with the consequence that Trimat was not obliged to pay the Outgoings Payments. It sought recovery on the basis that it made the Outgoings Payments in the mistaken belief that it was under a legal obligation to do so and, by reason of that, Investment was unjustly enriched.
Investment defended the action at trial on the basis that the mistake by Trimat was not one which gave rise to a claim in restitution for unjust enrichment and that, even it if did, Investment could rely on a number of defences to this claim in restitution.
For the reasons which follow, I find that each of the Outgoings Payments was made under a mistake of law. While Investment did not change its position in good faith in reliance on its receipt of each payment, it did give good consideration for most of the payments, such that its receipt and retention of the money is not unjust. As the last payment of each relevant year had become unenforceable by the time of payment, that amount had ceased to be a debt owed to Investment which it could discharge and thereby give good consideration for the payment. This result largely leaves the existing position intact, which is that Trimat paid Investment what the two companies agreed would be paid for outgoings under the Lease. On the facts of this case, there is no injustice in that outcome.
Issues arising for determination
The issues arising for determination narrowed following the determination of a preliminary issue by the Court of Appeal in a decision reported as Trimat Holdings Pty Ltd v Investment Club Pty Ltd.[2] The issues were further narrowed in the current defence[3] and then further by concessions made in the written opening submissions filed by counsel for Investment. The result is that it was not in issue at trial that:[4]
(a)the Lease was a retail shop lease to which the CTRSA applied;
(b)the Lease required Trimat to pay 100% of the outgoings incurred by Investment in respect of the leased premises;
(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 CTRSA;
(e)Trimat made the Outgoings Payments to Investment as set out in the schedule to these reasons (extracted from the statement of claim);
(f)during the period 1 July 2011 to 31 August 2017 Investment failed to provide Trimat with annual estimates of expenditures under each item of operating expenses in accordance with CTRSA s 12(1)(d)(i);
(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 accounting period of Investment during the term of the Lease on account of operating expenses to which Trimat was required to contribute in accordance with CTRSA s 12(1)(d)(ii); and
(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 CTRSA s 12(1d).
[2] Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2020] WASCA 63 (judgment of the court) (Trimat).
[3] Amended defence, set-off and counterclaim dated 15 October 2020 (Defence).
[4] Defendant's opening submissions, pars 1 ‑ 3.
Investment did not separately press the counterclaims for restitution and the defence of set-off pleaded in the defence.[5]
[5] Defendant's opening submissions, par 8.
That left seven issues arising for determination at trial:
•Was there a mistake made by Trimat which gives rise to a prima facie entitlement to recover the Outgoings Payments as payments made pursuant to a mistake of law?
•Does Investment have a defence to Trimat's claim in restitution on the ground that it provided good consideration for the Outgoings Payments?[6]
•Does Investment have a defence to Trimat's claim in restitution on the ground of a good faith change of position?[7]
•Does Investment have a defence to Trimat's claim in restitution on the ground that it would be unconscionable or otherwise inequitable to require Investment to repay the money?[8]
•Is any part of Trimat's claim outside the limitation period?[9]
•If Investment is liable to repay any of the Outgoings Payments, should any order be made pursuant to Property Law Act 1969 (WA) (PLA) s 125(2)?[10]
•What final orders are appropriate?
[6] Defence, par 13(a).
[7] Defence, par 13(b).
[8] Defence, pars 10(c), 10(d), 13 (aside from (e)) and 16.
[9] Defence, par 13(e).
[10] Defendant's opening submissions, par 36.
Two witnesses gave evidence. Trimat called its sole director[11] Jeremy Flint to give evidence. Investment called Darvin Cordisco. Mr Cordisco was the person who managed the invoicing of outgoings to Trimat, the oversight of the collection of those moneys and the payment of Investment's outgoings.[12] There was no real challenge to the honesty, accuracy or reliability of the evidence of either Mr Flint or Mr Cordisco. I made the findings in terms of their evidence which I have referred to in these reasons.
Was there a mistake made by Trimat which gives rise to a prima facie entitlement to recover the Outgoings Payments as a payments made pursuant to a mistake of law?
Relevant provisions of the CTRSA
[11] Exhibit 7, Trial Bundle (TB) page 101; ts 113.
[12] ts 184.
The mistake of law asserted by Trimat arises from the application of the CTRSA, so it is necessary to begin with an analysis of the relevant provisions. The Court of Appeal in Trimat analysed the relevant provisions of the CTRSA in some detail, which I respectfully adopt, so my consideration can be in somewhat summary terms.
In general terms, CTRSA s 12 limits the amount and proportion of operating expenses which are payable by a tenant under a retail shop lease to which it applies. By s 12(1)(d), the landlord is required to give the tenant two documents in relation to the operating expenses it claims:
(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.
The Court of Appeal summarised the effect of CTRSA s 12(1)(d) in the following terms:[13]
In the above terms, s 12(1)(d)(i) implies a statutory term in a retail shop lease to which s 12 applies in relation to the provision of estimates of operating expenses. It will be convenient to refer to this provision as the 'Estimates Provision'. Section 12(1)(d)(ii) implies a statutory term in a retail shop lease to which s 12 applies in relation to the provision of an operating expenses statement. It will be convenient to refer to this provision as the 'Statement Provision'.
(I will adopt these definitions).
[13] Trimat [18].
As to the purpose of CTRSA s 12, the Court of Appeal observed:[14]
Section 12 was enacted as part of a suite of measures designed to redress the uneven balance of power between commercial landlords, particularly those running large shopping centres, and small business tenants.
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.
[14] Trimat [40] - [41].
The consequence of a landlord failing to comply with the Statement Provision is set out in CTRSA s 12(1d):
(1d)If a landlord does not comply with the requirement referred to in subsection (1)(d)(ii), 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 Court of Appeal made the following observations as to the effect of the applicable provisions of the CTRSA which are relevant to the issues raised in the trial:[15]
[15] Trimat [44] - [47], [53] - [57], [62].
The Estimates Provision in s 12(1)(d)(i) of the Act introduces a statutory term into a retail shop lease that makes provision for payment by the tenant, in addition to rent, of all or any of the operating expenses of the landlord. It does this by providing a term for which the lease 'shall be taken to provide'.
The subject of the statutory term is the 'operating expenses in respect of a year or part of a year'. The term is that 'the tenant is not required to make any payment of, and the landlord is not entitled to recover' such operating expenses until a point in time. The point in time is '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'.
The operation of the statutory term introduced by s 12(1)(d)(i) in respect of a year or part of a year is spent one month after the landlord gives the tenant the annual estimates of expenditure. After that time, operating expenses for the year or part of the year are required to be paid in accordance with the other terms of the lease. After that time, there is no bar to the landlord recovering those operating expenses.
In its terms, the Estimates Provision does not extinguish the tenant's liability to pay operating expenses. Rather, it suspends the requirement for the tenant to pay operating expenses in respect of a year or part of a year until at least one month after annual estimates of expenditure are given to the tenant. It operates in relation to all operating expenses in the year or part of the year, and not merely those which would otherwise be payable before the estimates are given to the tenant. Until at least one month after annual estimates of expenditure are given to the tenant, the tenant is not required to pay, and the landlord is not entitled to recover, any of the operating expenses in respect of the year or part of the year. Once that time passes, the tenant is required to pay, and the landlord is entitled to recover, 'all or any of the operating expenses of the landlord' as provided in the retail shop lease.
…
The Statement Provision in s 12(1)(d)(ii) of the Act also introduces a statutory term into a retail shop lease that makes provision for payment by the tenant, in addition to rent, of all or any of the operating expenses of the landlord. It also does this by providing a term for which the lease 'shall be taken to provide'.
The term introduced by the Statement Provision requires the landlord to give to the tenant a written statement called an operating expenses statement. The operating expenses statement which the landlord is required to give the tenant must be 'in accordance with' s 12(1a) of the Act. The operating expenses statement must detail:
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.
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 3 months after the end of the accounting period to which it relates.
Section 12(1d) of the Act provides a statutory consequence of the failure to comply with the Statement Provision. It applies if a 'landlord does not comply with the requirement referred to in' s 12(1)(d)(ii) of the Act. The consequence 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 operating expenses referred to in s 12(1d) of the Act are not defined by reference to the period of time in which the landlord incurs the operating expenses. The time period referred to in s 12(1d) is the period during which the tenant is not obliged to pay, and the landlord is not entitled to recover, operating expenses. Therefore, during the period referred to in s 12(1d), the tenant is not obliged to pay, and the landlord is not entitled to recover, any operating expenses irrespective of when those operating expenses were incurred.
…
… s 12(1d) of the Act effects a suspension, rather than an extinguishment, of the tenant's obligation to pay operating expenses. It provides the tenant with a 'self-help' mechanism for enforcing the landlord's obligation to provide operating expense statements within 3 months of the end of each accounting period. If the landlord does not do so, the tenant may stop paying operating expenses until the landlord provides a complying operating expenses statement. Ordinarily, the operating expenses which the tenant is entitled to withhold will not be those incurred by the landlord in the accounting period to which the outstanding operating expenses statement relates. Under ordinary commercial terms, those will already have been paid by the tenant complying with its obligation under the lease before the default occurs 3 months after the end of the accounting period.
The specific preliminary issue addressed by the Court of Appeal was:[16]
If the Act does apply to the Lease, can a landlord comply with the requirements of section 12 of the Act by providing estimates and operating expense statements, which have not been provided to the tenant within the prescribed periods, after those prescribed periods have expired?
[16] Trimat [80].
The judge at first instance answered this question in the affirmative.[17] Having received this answer, Trimat accepted that it could not ultimately succeed in the action, consented to judgment being entered for Investment and appealed.
[17] Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2019] WADC 81.
The Court of Appeal answered the question in part, in the negative, specifically:[18]
The respondent cannot neutralise any suspension, by s 12(1)(d)(i), of the requirement for the appellant to pay the $253,276.98 of operating expenses, incurred between 1 July 2011 and 1 August 2017, by now giving an annual estimate of expenditure for those years. The question is otherwise inappropriate to answer.
The Court of Appeal then remitted the action to the District Court to be determined according to law.
[18] Trimat [80].
The Court of Appeal left open the question of whether a landlord could comply with the requirements of CTRSA s 12 by providing operating expense statements, which have not been provided to the tenant within the prescribed periods, after those prescribed periods have expired. This was on the basis that there is a scenario in which an operating expenses statement can be provided without there first having been an estimates statement. This, by CTRSA s 12(1c), is where 'the statement does not relate to any operating expenses other than land tax… water, sewerage and drainage charges, local government rates and charges or insurance premiums'. There was no pleading or evidence which would have allowed the Court of Appeal to have determined whether the operating expenses paid by Trimat fell wholly within CTRSA s 12(1c).[19]
[19] Trimat [72] - [80].
It is common ground at trial that the Outgoings Payments do not fall wholly within CTRSA s 12(1c) as they include payment of all levies raised by the strata company.[20] Hence, it is not open to Investment to neutralise the suspension in CTRSA s 12(1d) by now providing operating expenses statements. This is because it cannot provide one which complies with CTRSA s 12(1a)(e) as it did not provide an estimates statement which could be audited as required by that paragraph.[21]
[20] ts 15.
[21] Trimat [74] - [75].
The net effect is that the suspensions in both CTRSA s 12(1)(d)(i) and s12(1d) continue to apply, and Trimat is not required to pay, and Investment is not entitled to recover, any of the Outgoings Expenses. The suspensions will continue to apply in perpetuity.
Principles as to what constitutes a mistake of law
Where a person pays money to another pursuant to a mistake this gives rise to a prima facie obligation on the part of the recipient to make restitution.[22] The mistake may be one of law.[23]
[22] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353, 378 (Mason CJ, Deane, Toohey, Gaudron & McHugh JJ), 393-395 (Brennan J), 402 (Dawson J) (David Securities); Australian Financial Services and Leasing Pty Ltd v Hills Industries Limited [2014] HCA 14; (2014) 253 CLR 560 [67] (Hayne, Crennan, Kiefel, Bell and Keane JJ) (Hills Industries); Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd [2008] WASCA 119 [197] (Buss JA with whom Steytler P agreed) (Alpha Wealth).
[23] Property Law Act 1969 (WA) (PLA) s 124; David Securities (376), (393), (402).
The mistake must have caused the payment.[24] However, in the words of the plurality in David Securities:[25]
… the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys. Such a mistake would be causative of the payment.
[24] David Securities (377) - (378).
[25] David Securities (378).
The mistake must be as to a past or present matter of fact or law.[26] The concept of a mistake of law 'includes cases of sheer ignorance as well as cases of a positive but incorrect belief'.[27] On the other hand, it is not sufficient if the mistake is one caused by a misprediction relating to some possible future event or a mistaken expectation.[28]
[26] Pitt v Holt [2013] 2 AC 108 [109] (Lord Walker, with whom the other members of the court agreed) (Pitt).
[27] David Securities (374), also (367); Hookway v Racing Victoria (2005) 13 VR 444 [61] - [62] (Ormiston JA, with whom Warren CJ agreed) (Hookway).
[28] Pitt [104]; Dextra Bank & Trust Company Ltd v Bank of Jamaica [2001] UKPC 50; [2002] 1 All ER (Comm) 193 PC [28] - [29]; Workpac Pty Ltd v Rossato [2020] FCAFC 84 [733] (White J) (Workpac); Hookway [61] - [62].
The 'test as to the plaintiff's state of mind is purely subjective: it is irrelevant that a reasonable person in the plaintiff's position would have known the true position or that the plaintiff had the means of knowledge or that the plaintiff had forgotten the true position'.[29]
[29] North Adelaide Service Partnership v Retail Employees Superannuation Pty Ltd [2019] SASC 5 [103] (Blue J) (North Adelaide).
Where, as in the present case, the mistake is said to have been made by a company, it is necessary to identify the person or persons who are 'an embodiment of the company' whose belief can be attributed to the company.[30] Specifically, 'it is necessary to identify the directing mind and will of the company in respect of the specific transaction or transactions effecting payment, and that will be the person or persons who decided to make the payment'.[31]
[30] Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170-171 (Lord Reid) (Tesco Supermarkets); G J Coles & Co Ltd v Goldsworthy [1985] WAR 183, 188 (Burt CJ), 191 (Brinsden J), 193 (Smith J); Brian Gardner Motors Pty Ltd vBembridge [2000] WASCA 400 [41] - [45] (Hasluck J).
[31] North Adelaide [113].
The plaintiff has the onus of proving that it made each payment under a mistake of law.[32]
[32] David Securities (379), (405); Workpac [728]; Holt v Markham [1923] 1 KB 504, 511 (Bankes LJ).
At this point in the analysis it is instructive to consider the decision of the High Court David Securities in detail as it deals with the issue as to what constitutes a mistake of law based on non-compliance with a statutory provision in circumstances where the money sought to be recovered was paid under a contract.
In David Securities the appellants entered into foreign currency loans with the respondent, the Commonwealth Bank of Australia Ltd (Bank), for the purpose of a property development. Almost immediately, adverse fluctuations in the exchange rates between the Swiss franc, the currency of the loan, and the Australian dollar resulted in financial losses for the appellants. Ultimately, the Bank alleged that the appellants defaulted on the loans. The appellants sued the Bank (and others involved in advising them) alleging that they had suffered significant losses by reason of their entry into the foreign currency borrowing arrangements. Among other causes of action, the appellants asserted misleading conduct and representations by the Bank. The Bank cross-claimed against the appellants for the recovery of moneys allegedly still due under the borrowing arrangements. The trial judge dismissed the claim and allowed the cross-claim. The Full Court of the Federal Court dismissed an appeal.[33]
[33] See generally: David Securities (359) - (361).
The issue for the High Court was limited to an argument that a particular clause in the loan agreements between the appellants and the Bank, cl 8(b), was void by virtue of Income Tax Assessment Act 1936 (Cth) s 261 (ITAA), with the effect that the appellants were entitled to a refund of certain moneys paid. The appellants submitted that they were entitled to set off those liquidated amounts against the moneys claimed by the Bank because the amounts in question had been paid under a mistake of law. The Full Court did not allow the setoff as it found that, while cl 8(b) was rendered void by ITAA s 261, an action for money had and received did not lie in the case of a payment under a mistake of law. The High Court allowed the appeal and remitted the matter back to the trial judge for determination.[34]
[34] David Securities (361) - (362), (386), (407).
The plurality (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) identified three issues for determination:
(a)Does ITAA s 261 of the Act operate to render void cl 8(b) of the loan agreements?
(b)Was there sufficient basis for the Full Court's finding of a mistake of law by the appellants?
(c)Are the appellants entitled to restitution of moneys paid under a mistake of law?
As to the first issue, as the loan was with the Singaporean branch of the Bank, under the ITAA the appellants were required to pay to the Commissioner of Taxation the withholding tax for which the Bank was liable (being 10% of the interest). The effect of cl 8(b) of the loan agreements was the appellants paid the amount of contractual interest (10% of which was paid to the Commissioner) plus an additional amount representing a further 11.1% of what the Singaporean branch of the Bank was due to receive after the Commissioner's share had been deducted. The payments were made by the appellants drawing a cheque payable to the Bank for the amount of the interest and tax. The Sydney (Dee Why) branch of the Bank debited the appellants' account with the amount of the cheque, paid to the Commissioner the 10% withholding tax and remitted the balance, representing the full amount of the contractual interest, to the Singapore branch.[35] All members of the High Court found that this arrangement fell within ITAA s 261 and was void.[36] That section relevantly provided that a 'covenant or stipulation in a mortgage, which has or purports to have the purpose or effect of imposing on the mortgagor the obligation of paying income tax on the interest to be paid under the mortgage … shall be absolutely void'.
[35] David Securities (363).
[36] David Securities (363) - (367), (387), (402).
As to the second issue, the Bank challenged the inference drawn by the Full Court that the appellants paid the moneys sought to be reimbursed under a relevant mistake. The plurality noted that at first instance the appellants had sought during addresses leave to call evidence that the payment was made under a mistake. The trial judge rejected this application, 'probably because his Honour was of the opinion that if the moneys were paid under a mistake, the mistake was one of law'.[37] All members of the High Court determined that a claim in restitution could lie for a mistake of law, remitted the application for leave to call evidence on the issue of mistake to the trial judge.[38]
[37] David Securities (368).
[38] David Securities (368), (386), (400) - (401), (407).
The plurality went into some detail on the issue of whether the appellants were entitled to restitution of moneys paid under a mistake of law. They observed that 'mistake not only signifies a positive belief in the existence of something which does not exist but also may include … sheer ignorance of something relevant to the transaction in hand'.[39] And later observing that 'the concept of a mistake of law includes cases of sheer ignorance as well as cases of positive but incorrect belief'.[40] They further observed that 'in this case, the Bank's claim that the appellants paid the additional amounts without protest is of little consequence in itself'.[41] After a close analysis of the relevant case law, the plurality concluded: [42]
For the reasons stated above, the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia. In referring to moneys paid under a mistake of law, we intend to refer to circumstances where the plaintiff pays moneys to a recipient who is not legally entitled to receive them.
[39] David Securities (369), citing Winfield, 'Mistake of Law', Law Quarterly Review, vol 59 (1943) 327, at page 327.
[40] David Securities (374).
[41] David Securities (370).
[42] David Securities (376).
As to the principle which should be put in its place: [43]
There is... no place for a further requirement that the causative mistake be fundamental; insistence upon that factor would only serve to focus attention in a non-specific way on the nature of the mistake, rather than the fact of enrichment. If a strict approach is taken towards the issue of mistake so that a plaintiff bears the burden of establishing on the balance of probabilities that a causative mistake has been made, there would also be no need to appeal to the element of fundamentality as a limiting factor. So, the payer will be entitled prima facie to recover moneys paid under a mistake if it appears that the moneys were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the moneys or that the payee was legally entitled to payment of the moneys. Such a mistake would be causative of the payment.
[43] David Securities (378).
Nor is there any requirement a plaintiff should be required to prove that retention of the moneys by the recipient would be unjust in all the circumstances before recovery should be granted. [44] Rather: [45]
The fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution. Before that prima facie liability is displaced, the respondent must point to circumstances which the law recognizes would make an order for restitution unjust …. There can be no restitution in such circumstances because the law will not provide for recovery except when the enrichment is unjust. It follows that the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust.
…
The two 'defences' upon which the respondent relies in this Court are, first, that the payments by the appellants were made for good consideration and, secondly, that in reliance upon receipt of the payments the respondent, in good faith, changed its position to its detriment.
[44] David Securities (378) - (379).
[45] David Securities (379) (emphasis in original).
The plurality observed[46] that these defences were included in the 'well known' formulation of Robert Goff J in Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd:[47]
(1) If a person pays money to another under a mistake of fact which causes him to make the payment, he is prima facie entitled to recover it as money paid under a mistake of fact. (2) His claim may however fail if (a) the payer intends that the payee shall have the money at all events, whether the fact be true or false, or is deemed in law so to intend; or (b) the 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; or (c) the payee has changed his position in good faith, or is deemed in law to have done so
[46] David Securities (379) - (380).
[47] Barclays Bank Ltd. v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677, 695 (Robert Goff J) (Barclays Bank).
Having placed the defences to a claim in restitution in context, I will return to the more detailed observations of the plurality when I consider the specific defences below.
Brennan J agreed that the distinction between a mistake of law and a mistake of fact should be rejected.[48] However, his Honour phrased the defence in different terms:[49]
It is a defence to a claim for restitution of money paid or property transferred under a mistake of law that the defendant honestly believed, when he learnt of the payment or transfer, that he was entitled to receive and retain the money or property.
[48] David Securities (393).
[49] David Securities (399).
Brennan J thought it only appropriate to remit the issue of whether there was a mistake of law, and not the defence of change of position.[50]
[50] David Securities (401).
Dawson J likewise agreed that there is no basis for a distinction between a mistake of fact and a mistake of law, providing reasons separate to that of the majority.[51]
[51] David Securities (405) - (407).
In Hills Industries Gageler J noted that the decision in David Securities had been explained by the High Court in Equuscorp Pty Ltd v Haxton,[52] an explanation he summarised in the following terms:[53]
The fact that a payment is caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the recipient to make restitution. That is because causative mistake is a circumstance which the law recognises to be prima facie sufficient to make the recipient's receipt, and retention, of the payment unjust. To displace that prima facie obligation, the recipient must establish some other circumstance which the law recognises would make an order for restitution unjust. The defence of change of position comprehends one of those circumstances. The defence, if established, results in the prima facie obligation of the recipient being in whole or in part displaced at the time an order for restitution is sought.
Trimat's position
[52] Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 [29] - [30] (French CJ, Crennan and Kiefel JJ) (Equuscorp).
[53] Hills Industries [106].
Trimat's position is that at the time each of the Outgoings Payments was made, it was not 'obliged to pay', and Trimat 'was not entitled to recover' the amount by reason of Investment's non‑compliance with the CTRSA.[54] It pleads that at the time of the making of each of the Outgoings Payments it was 'unaware' of these matters and 'mistakenly thought that [it] was under a legal obligation to make each of the' Outgoings Payments.[55]
[54] Amended statement of claim dated 23 June 2020 (statement of claim), pars 12 and 14.
[55] Plaintiff's Opening Submissions, par 19.
Trimat relies on the evidence of its sole director and secretary, Jeremy Flint. Mr Flint gave evidence that it was him who caused Trimat to make the payments owing under the Lease.[56] It is evident from the annotations on the invoices in evidence that his practice was to pay the invoice then stamp it as paid, recording the date of payment.[57]
[56] ts 114 - ts 115.
[57] Exhibit 9.
As to his state of mind, his evidence was:[58]
… 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.
…
[58] ts 115.
And:[59]
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.
[59] ts 116.
And in cross-examination:[60]
And you didn't at this stage have any reason to doubt that you owed the outgoings you were invoiced?‑‑‑No.
Other than ‑ ‑ ‑ ?‑‑‑We were just - we were just ‑ ‑ ‑
‑ ‑ ‑ sometimes querying how they should be allocated amongst individual elements?‑‑‑Yeah, sure. As I said before we paid the invoices as we received them.
[60] ts 149.
Mr Flint gave evidence that his wife, Susan Kit Ching Wong or Sue Flint, was employed by Trimat as a bookkeeper. One of her tasks was to dissect the outgoings amounts, breaking them down into the categories required by the accounting system, which was that of Trimat's franchisor.[61]
[61] ts 115 - ts 116, ts 118 - ts 120, ts 124.
Mr Flint also gave evidence that he was 'completely unaware' that the CTRSA existed, and unware of the requirements that Investment furnish him 'with certain documents, and annual budgets and things along those nature'. He was not aware until he received legal advice in August 2017 that he was entitled to receive any other documents concerning payments of invoices for outgoings. [62]
[62] ts 116.
Counsel for Trimat argued that the mistake made in this case was that same as that made in David Securities: Trimat made each Outgoings Payments on the basis that it was under a contractual obligation to do so, whereas, as a matter of law, there was no such contractual obligation. In David Securities it was because the clause containing the obligation was void. In the present case, it is because the clause containing the obligation was replaced by a statutory implied term to the effect that at the point in time each of the Outgoings Payments were made, Trimat was not required to make the payment, and Investment was not entitled to recover it.
Investment's position
Investment pleads that the Lease, which was prepared by a firm of solicitors at the request of Trimat, contained a tenant guide (Tenant Guide) which specifically referred to the relevant parts of the CTRSA.[63] The relevant portion of the Tenant Guide was in the following terms:[64]
Lessor to provide estimates and statements
In 'net' lease arrangements, the Act provides that you will not have to pay a contribution to the Lessor's operating expenses until one month after the Lessor provides you with an annual estimate of expenditure for each operating expense.
The Lessor is also required to supply you with an audited operating expenses statement within 3 months after the previous accounting period had ended. If this is not done you do not have to contribute to the Lessor's operating expenses until you have received the audited statement.
[63] Defence, par 19(b).
[64] Exhibit 2, Trial Bundle (TB) 15.
However, the evidence of both Mr Flint[65] and Mr Cordisco[66] was that the Lease was prepared by lawyers acting for Trimat's franchisor, representatives of whom negotiated with terms of the Lease with Investment. So this aspect of the defence falls away.
[65] ts 121.
[66] ts 190.
When asked about the Tenant Guide in cross-examination, Mr Flint's evidence was that:[67]
So you'd have looked at page - what is now page 10?‑‑‑I would have skimmed past it, not - I would not have - have read it. I would say I was - we were incredibly busy with the fitout at that point in time, desperately trying to get everything up and running before Christmas. In my mind the lease was a - almost a fait accompli. You know, the big decision for me was signing the franchise agreement earlier in the year. We were desperate to get the shop open. This was just an item to be ticked, if you like,
[67] ts 126 - ts 127.
Investment's pleaded position more generally is that it denies the matters pleaded in relation to the plaintiff's mistaken belief.[68]
[68] Defence, par 19(c).
Counsel for Investment made essentially three points as to whether there was a mistake of the kind which gives rise to a claim in unjust enrichment.
The first is that, if there was a mistake, it was one made by Mr Flint's wife, Mrs Flint, as it was she who in fact caused the payments to be made, and was the operative decision maker. Counsel for Investment invited the court to find that: [69]
(a)the invariable practice was that Mrs Flint checked the invoices to determine whether the amounts were payable;
(b)it was she who undertook the dissection of the outgoings in the invoice into the expense codes required for Trimat's accounting system;
(c)it was she who instructed Mr Flint to pay the amount;
(d)there was no evidence that Mrs Flint was under any mistake as to the operation of the relevant provisions of the CTRSA; and
(e)therefore Trimat has not satisfied the onus of proof on it to show that someone representing the directing mind and will of Trimat made each of the Outgoings Payments under a mistake of law.
[69] See generally: ts 147 - ts 158, ts 163 - ts 171.
Counsel submitted that the present case was on all fours with the decision in North Adelaide. In that case the plaintiffs operated a number of supermarkets. For a period of time they paid superannuation payments to the defendant in respect of all employees. This included employees in respect of whom there was no obligation to do so. A preliminary issue was determined by Blue J as to whether the plaintiffs had a prima facie entitlement to recover the payments in restitution. His Honour determined the preliminary issue in favour of the plaintiff.
The central issue concerned evidence that the payroll manager, one Ms Dinedios, knew that the plaintiffs were making payments for employees in respect of whom they are under no obligation to do so.[70] Blue J stated the principle which I have quoted at [26]. On the facts his honour concluded that the person who was the directing mind and will of the company was a Mr Romeo and not Ms Dinedios.[71] The detailed finding is instructive:[72]
Returning to the facts of this case, Anthony Romeo was the person within the plaintiff companies who decided what payments were to be made by way of superannuation contributions to REST in respect of employees. He was also the signatory to the cheques in payment of the contributions. His intention and belief was that payments were only being made to employees who were not exempt employees. He was the relevant decision-maker.
By contrast, Ms Dinedios was not a relevant decision-maker. She had no authority to decide whether or not contributions were to be made in respect of exempt employees. Her role was purely administrative, she was to oversee the calculation of payments of superannuation so as to discharge the plaintiffs' obligations under the Superannuation Guarantee legislation. Her knowledge that payments were being made in respect of exempt employees is irrelevant to the state of mind of the plaintiff companies and in particular their decision to make the payments.
[70] North Adelaide [80] (Blue J).
[71] North Adelaide [103].
[72] North Adelaide [109] - [110].
Counsel for Investment invited the court to conclude that 'directing mind and will of the company in respect of the specific transaction or transactions effecting payment' was Mrs Flint, and not Mr Flint, and that there is no evidence as to whether or not she was mistaken.
The second point is that the mistake which is identified in Trimat's pleaded case has not been proven on the evidence before the court. That mistake is that the plaintiff 'mistakenly thought that the plaintiff was under a legal obligation to make each of the' Outgoing Payments.[73] The effect of the decision in Trimat is that Trimat was under a legal obligation to make each of the Outgoings Payments, however, that obligation had been suspended. The pleaded case of Trimat was not that it mistakenly thought that each payment was due and payable.
[73] Statement of claim, par 18.
The third point is that, if there was a mistake, it was not as to an existing state of affairs. Rather, it is one caused by a 'misprediction relating to some possible future event'. This is that 'its liability to make the particular Payment would not be extinguished (in future) by the defendant's failure to provide the necessary estimates statement before all expenditure for the year to which the Payment related had been fully incurred'.[74] The submission is developed:[75]
Put another way –the plaintiff cannot have mistakenly thought that it was under a legal obligation to make each Payment at the time it made each Payment… because at the time it made each Payment, it was legally liable to make the payment. The liability was suspended, so the plaintiff need not have made the Payment at that time, but the liability was not extinguished. This conclusion is consistent with the statutory text of ss 12(1)(d)(i) and 12(1d) of the CT(RS)A Act, which provide that the plaintiff was not obliged to make the Payment, and the defendant could not bring an action to recover it but do not provide that if the plaintiff nevertheless paid it then it is entitled to recover it. Restitution does not lie where the payment sought to be recovered has discharged an existing liability...
Determination
[74] Defendant's Opening Submissions, pars 25 - 27.
[75] Defendant's Opening Submissions, par 28 (emphasis in original).
Investment's first point can be shortly disposed of. The law is as I have set out at [26]. Mr Flint was the sole director of the company. I accept the evidence of Mr Flint (referred to at [44] ‑ [47]) that it was he who in fact made each payment. I am readily satisfied that when he did so, was 'acting as the company' and that 'his mind [was] the mind of the company'.[76] I accept the evidence of Mr Flint referred to at [48] and find that Mrs Flint was employed as a bookkeeper. In this role, it was perfectly appropriate for her to have checked the invoices, obtained information so that the correct amounts could be allocated to the various accounting codes and then passed them on to the director for payment, with comments to the effect that, as far as she was concerned, the amount could be paid. And then Mr Flint had responsibility to pay the amount, which he did. The delegation of the detailed work is precisely why a bookkeeper is employed. Moreover, on two occasions, it appears that Mrs Flint identified external queries which needed to be made by Mr Flint before payment was made.[77] This is telling confirmation that Mr Flint was in fact the directing mind and will of the company.
[76] Tesco Supermarkets (170) - (171).
[77] Exhibit 9, TB pages 182 - 183; ts 164 - ts 166.
This is not a case like North Adelaide where the subordinate officer knew the true position, but the directing mind and will of the company did not.
Nor can Mrs Flint be described as the directing mind and will of the company. In no way can it be said that she was 'an embodiment of the company'.[78]
[78] Tesco Supermarkets (170) - (171).
I find that Mr Flint was the directing mind and will of the company in respect of each of the specific transactions effecting payment.
As to Mr Flint's state of mind, counsel for Investment did not cross‑examine Mr Flint to the effect that he did not in fact hold the beliefs in the evidence referred to at [45] ‑ [47]. I accept this evidence as being honest, accurate and reliable. I find that Mr Flint believed that he was under an obligation to pay each invoice issued by Investment for outgoings. The Lease provides the outgoings were to be paid within 21 days of service of written statement detailing how much was owed,[79] though there is no direct evidence that Mr Flint was aware of this deadline. However, in addition to Mr Flint's direct evidence, I am also able to infer his state of mind from all the circumstances of the case.[80] The detailed cross‑examination of the invoices in exhibit 9, and the payment information endorsed on the face of most of these invoices, makes it clear that they were invariably paid within a month of receipt. I infer and find that Mr Flint's actual belief was that he had to pay each invoice when he in fact paid it. This conclusion is reinforced by his evidence that for most of the term of the Lease Trimat was under financial pressures and, indeed at one point negotiated a rent deferral with Investment.[81] Had Mr Flint been aware that he had a statutory right to defer payment until compliance with CTRSA s 12, I have no doubt he would have done so; he said this when giving evidence ([46]).
[79] Exhibit 2, cl 2.2, TB 22.
[80] The State of Western Australia v Newton [No 3] [2020] WASC 319 [71] (Corboy J); The State of Western Australia v R [2007] WASCA 42 [67] (Steytler P).
[81] ts 172 - ts 173.
I find that Mr Flint believed that he was under a legal obligation to pay each invoice for outgoings when he in fact paid that invoice. As I have found, that belief is readily attributable to Trimat.
I also accept the evidence of Mr Flint at [46], and find that at all times up until August 2017 he was not aware of the existence of the CTRSA, and not aware that Trimat was entitled to receive any information as to outgoings under the CTRSA.
The correct position at law as regards the payments of the invoices for outgoings is that the obligation to make the payment was suspended until such time as Investment complied with the Estimates Provision and the Statement Provision.[82] The CTRSA does not operate to extinguish the debt for outgoings.[83] Specifically, as at the date of each payment, by CTRSA s 12(1)(d)(i) and (1d), Trimat was not required to pay, and Investment was not entitled to recover, the amount of outgoings the subject of the payment. The effect of these provisions is that at the point in time each payment was made, Trimat was not under a legal obligation to make the payment.[84]
[82] Trimat [47], [62], [68].
[83] Trimat [47], [62], [68].
[84] David Securities (378); Alpha Wealth [205].
Accordingly, I find that the belief of Mr Flint in [67] was a mistaken one, and that each of the Outgoings Payments was made under a mistake of law. That his belief was based on 'sheer ignorance' does not matter.[85]
[85] David Securities (369), (374).
I do not accept the submission of Investment that the mistake in [67] is outside Trimat's pleaded case. The construction of Trimat's pleadings set out at [60] is unduly pedantic. The mistake in [67] is readily characterised within Trimat's pleaded case that it mistakenly thought it 'was under a legal obligation to make each of the' Outgoing Payments.[86]
[86] Statement of claim, par 18.
Nor do I accept the submission of Investment that the mistake in [67] is as to a misprediction relating to some possible future event. The mistake existed at the point of payment. The description of the mistake suggested by Investment at [61], whilst being legally correct, is artificially complex and assumes a knowledge of CTRSA s 12 which Mr Flint patently did not in fact have; moreover it bears no resemblance to what he in fact believed.
For these reasons, I am satisfied on the balance of probabilities that each of the Outgoings Payments was made mistake of law, and is prima facie recoverable by Trimat.[87]
Does Investment have a defence to Trimat's claim in restitution on the ground that it provided good consideration for the payments?[88]
Principles
[87] David Securities (379), (385).
[88] Defence, par 13(a).
As I have already observed ([36]), the plurality in David Securities makes it clear that once the paying party establishes that the payment has been caused by a mistake, the onus then shifts to the recipient to point to some circumstance which the law recognises would make the receipt and retention of the payment not unjust.[89]
[89] David Securities (379), (384), (405); Southage Pty Ltd v Vescovi [2015] VSCA 117; (2015) 321 ALR 383 [50] (judgment of the court) (Southage).
Once such circumstance or 'defence' is that the payment to the recipient was made for good consideration.[90] The High Court in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation gave as an example of this defence where the payment discharged an existing debt.[91]
[90] Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662, at 673 (judgment of the court) (ANZ); David Securities (373), (391), (406).
[91] ANZ (673).
Again as I have observed ([36] - [37]), the good consideration defence was considered in David Securities, with the plurality[92] endorsing the observations of Robert Goff J in Barclays Bank identifying a defence where 'the payment is made for good consideration, in particular if the money is paid to discharge, and does discharge, a debt owed to the payee … by the payer …'.[93]
[92] David Securities (379) - (380).
[93] Barclays Bank (695).
In David Securities, the Bank argued 'that this is a case where the appellants, having accepted the benefit of performance by the respondent, now seek to recover part of the consideration promised for that performance, namely, the payments made referable to withholding tax'.[94] In considering this argument the plurality focussed on the effect of ITAA s 261:[95]
It is necessary to examine closely the terms of the loan agreement and the course of events preceding its signing in order to discover what the payer gave and expected to receive by way of consideration. It is only by doing this that it can be ascertained whether the payment of the additional amounts was absolute or conditional. If the payment was conditional, it was subject to the original or continued existence of a particular subject matter, such as an existing or future indebtedness or other obligation owed to the payee… In this case, the evidence suggests that the appellants agreed to pay and actually paid the amounts representing withholding tax because the respondent represented that the withholding tax on interest payments must be met by the appellants. Such representations may have caused the appellants to believe that cl. 8(b) took its form because of a general obligation on borrowers to pay the particular tax. When the matter is looked at in this light, it can be argued that the appellants agreed to pay the nominated interest rate as the price of the loan and further agreed to pay the additional amounts with which the Dee Why branch, as agent of the appellants, discharged what the appellants considered to be their own tax liability. However, the true situation was, of course, that the liability for payment of withholding tax fell upon the lender and that s. 261 avoided any attempt to pass this burden on to a borrower in circumstances such as the present. The appellants thus had no indebtedness in respect of withholding tax, the discharge of which could form consideration for the payments under cl. 8(b). Those payments were therefore not made for good consideration within the terms of the defence outlined in Barclays Bank and Westpac Banking Corporation.
[94] David Securities (380).
[95] David Securities (381) (references omitted).
And in conclusion: [96]
In the present case … it is relatively simple to relate the additional amounts paid by the appellants to the supposed obligation under cl. 8(b) of the loan agreements. The appellants were told that they were required to pay withholding tax and the payments that they made were predicated on the fact that, by so doing, they were discharging their obligation… In this case, the Bank must prove that the appellants are not entitled to restitution because they have received consideration for the payments which they seek to recover. It does not avail the Bank to argue that the appellants were provided with the loan moneys agreed. Indeed, the severability of the loan agreement into its relevant parts would seem to be accepted by the Bank for it submitted that the appellants' consideration for agreeing to pay the additional amounts under cl. 8(b) was the Bank's agreement not to charge a higher interest rate.
[96] David Securities (383) (emphasis in original).
In summary, as the effect of ITAA s 261 was to render the clause pursuant to which the specific payments were made void, there was no indebtedness in respect of withholding tax the discharge of which could form good consideration for the payments made. All members of the High Court declined to remit the good consideration defence back to the trial judge.[97]
[97] David Securities (386), (401), (407).
The requirements of the good consideration defence were recently considered by the Court of Appeal in Smith v Leveraged Equities Ltd.[98] After referring to the reference to this defence in the decision of Robert Goff J in Barclays Bankwhich I have quoted at [37], the court observed:[99]
Importantly, on this statement of the principle, a discharge of debt must occur by the payment. Moreover, the payer must intend that the payment is to discharge the debt.
Investment's position
[98] Smith v Leveraged Equities Ltd [2020] WASCA 122 [211] - [212] (judgment of the court) (Smith).
[99] Smith [212].
Investment pleads that it provided good consideration for the payments made to it by Trimat. Specifically:[100]
(i)The Payments were made to the Defendant for the purpose of discharging the various Outgoings (inclusive of strata levies and council rates) otherwise payable under the terms of the Lease;
(ii)Alternatively, the said Payments were applied towards the discharge of the Outgoings relating to the Premises, which thereby enabled the Plaintiff to retain quiet enjoyment of the Premises throughout the Relevant Period;
(iii)Further or alternatively, the said Payments did, in fact, discharge any liability for the Outgoings payable to the Defendant pursuant to the Lease; or
(iv)Alternatively, the said Payments were passed on by the Defendant to the various providers of the Outgoings in order to discharge liability for the Outgoings payable for the Premises;
(v)Accordingly, in consideration of the Payments, the Plaintiff received the entire benefit of its bargain with the Defendant in return for the exclusive use and occupation of the Premises during the Relevant Period.
[100] Defence, par 13(a).
Investment's position places reliance on the finding by the Court of Appeal in Trimat that the effect of CTRSA s 12 is not to extinguish the liability of Trimat, but merely to suspend enforcement of it.[101]
[101] Trimat [47], [62], [68].
Counsel submitted that the CTRSA is silent on the issue of what happens if a tenant pays outgoings to a landlord in circumstances where, pursuant to CTRSA s 12(1d) the tenant is not obliged to pay, and the landlord is not entitled to recover those outgoings. There is no statutory remedy provided in this scenario. Rather, this issue is left to the common law. In particular, there is no express or implied limitation on the ability of a landlord to rely on common law defences to a claim for restitution. [102]
[102] Defendant's opening submissions, pars 19 - 21.
Counsel distinguished the position in David Securities where the effect of ITAA s 261 was to render the offending clause in the borrowing documents void, meaning that there was never any indebtedness which could be discharged by the payments made.
In effect what Trimat did was to pay money which it owed pursuant to the Lease before that money was at law due and payable. Nonetheless, each payment comprising the Outgoings Payments still had the effect of discharging the liability under the Lease, discharging an existing debt.
Counsel accepted that this analysis does not apply to the final payment of each year. This is because, using the reasoning of the Court of Appeal, the failure to comply with the Estimates Provision prior to the final payment means that there could not be compliance with either the Estimates Provision or the Statement Provision for that accounting period.[103]
Trimat's position
[103] ts 74 - ts 75, ts 221.
Counsel for Trimat placed weight on the following observation by Brennan J in David Securities: [104]
Where the mistake under which the payment is made consists in the payer's ignorance of a statute which, in protection of a class of which the payer is a member, absolves the payer of the obligation to pay, the mistake of the payee who receives the payment honestly claiming it to be his due does not entitle the payee to retain it. If it were otherwise, an honest but mistaken claim by the payee would frustrate the operation of the statute.
[104] David Securities (400).
This quote was made in the context of a discussion of a defence to claim in restitution identified by Brennan J (quoted at [39] above) which was not adopted by the other members of the court.
Counsel for Trimat further submitted that there can be no restitutionary remedy in favour of Investment if it is inconsistent with the statutorily implied terms.[105] He referred to dicta that the law of restitution does not 'redistribute risks for which provision has been made under an applicable contract'.[106]
[105] Plaintiff's opening submissions, pars 22 - 25.
[106] Pan Ocean Shipping Co Ltd v Creditcorp Ltd [1994] 1 WLR 161, 166, (Lord Goff of Chieveley), quoted and approved in Lumbers v W Cook Builders Pty Ltd(in liq)[2008] HCA 27; 232 CLR 635 [79] Gummow, Hayne, Crennan and Kiefel JJ).
Counsel for Trimat also submitted that CTRSA s 12 reflects a legislative intent to cover the field as regards payment of outgoings by tenants to landlords; to permit an alternate form of recovery or retention of outgoings to which CTSRA s 12 applies would have the effect of frustrating or defeating, or at least operating inconsistently with, that intent.[107]
Determination
[107] Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 373 ALR 1 [158] - [159] (Nettle, Gordon & Edelman JJ, with whom Kiefel CJ, Bell & Keane JJ agreed) (Mann).
It is clear that the effect of CTRSA s 12(1)(d)(i) and s 12(1d) was to preclude Investment from commencing any action to recover any of the Outgoings Payments until there had been compliance with the Estimates Provision and the Statement Provision. This would include an action in restitution.[108] As to whether it goes further, that is a matter of statutory construction.
[108] See generally: Mann [158] - [160].
The application of the good consideration defence in this case turns on the effect of the failure to comply with CTRSA s 12(1)(d)(i) and s 12(1d). As I have already observed, the Court of Appeal has determined that these provisions effect a suspension rather than an extinguishment of the tenant's obligations to pay operating expenses.[109]
[109] Trimat [47], [62], [68].
A debt may exist, but may not be due or payable. This distinction is discussed by Barrett J in Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd:[110]
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'… 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.
[110] Main Camp Tea Tree Oil Ltd v Australian Rural Group Ltd [2002] NSWSC 219; (2002) 20 ACLC 726 [17] (Barrett J) (reference omitted).
In this case, the CTRSA applied to prevent Investment from enforcing the obligation to pay outgoings by adding to the Lease a term suspending the requirement to pay. The effect was that the debt under the Lease for outgoings, at the time of payment, remained an obligation which Trimat was liable to pay, but which, while the suspension was operative, was not due or payable.
The CTRSA is silent as to what occurs where a payment is made by the tenant in circumstances were it was, by the implied terms, not then due and payable, and the landlord seeks to resist a claim in restitution for a mistaken payment. I do not discern a legislative intent to address this scenario. Rather, I accept the submission by counsel for Investment that this is left to the common law.[111]
[111] ts 72. A point which counsel for Trimat also appeared to accept: ts 20, ts 257.
I agree with the submission by counsel for Investment that the regime in the CTRSA is different to the statutory regime considered in David Securities which rendered the offending provision void. In that instance, there was never a debt which could have been discharged by the payment. In the present case, the Outgoings Payments were payments which Trimat was under an obligation to pay, albeit debts not due and payable at the time of payment.
In my view, the effect of Trimat making each of the Outgoings Payments was to extinguish its liability to Investment under the Lease. The discharge of debt occurred by the payment. I infer from all the circumstances and find that Mr Flint, the directing mind and will of Trimat, intended that each of the Outgoings Payments would discharge the relevant debt for outgoings.
In doing so, Investment provided good consideration for the mistaken payment. All that occurred was that the debt was paid before it was at law due and payable; that still discharges the debt.
This conclusion can be tested by hypothetical. Assume that the first six months' payments by the tenant for outgoings in a year were made without compliance with the Estimates Provision. There was then compliance with the Estimates Provision such that the statutory suspension was lifted. The landlord could not seek to recover again the payments in the first six month on the basis that the payments did not, at law, discharge the debt owed pursuant to the lease.
As rightly conceded by counsel for Investment, the position changes in respect of the last payment of outgoings for the relevant year. The Court of Appeal makes it clear that the Estimates Provision cannot be complied with after the expenditure for a year has been fully incurred and ascertained.[112] This will occur on Trimat making the last payment for the relevant year. Based on the language used by the Court of Appeal in the example at Trimat [48] ‑ [52], from that point '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.[113] In that scenario, as a matter of law, Trimat no longer has a legally enforceable obligation to pay the outgoings for that year, and so cannot in substance be characterised as having a 'debt' for which Investment could give good consideration by discharging on payment.
[112] Trimat [71].
[113] Trimat [52].
The good consideration defence thus does not apply to each of the final payments for a relevant year. It is not entirely clear whether the relevant year is the lease anniversary, financial year or calendar year.[114] I will hear from counsel on this issue.
Does Investment have a defence to Trimat's claim in restitution on the ground of a good faith change of position?
Principles
[114] See for example, ts 74.
Another circumstance in which the receipt and retention of a mistaken payment by the recipient is not unjust is where, in reliance upon receipt of the payment, the recipient, in good faith, changed its position to its detriment.[115] 'The rationale for change of position as a defence to a restitutionary claim lies in the inherent unfairness of requiring a recipient to make restitution where the recipient has received property in good faith and has irreversibly and materially altered his or her position, on the faith of the receipt, to his or her detriment'.[116]
[115] David Securities (373).
[116] Smith [198]; Alpha Wealth [201].
The defence was also considered by the High Court in David Securities. The plurality stated: [117]
If we accept the principle that payments made under a mistake of law should be prima facie recoverable, in the same way as payments made under a mistake of fact, a defence of change of position is necessary to ensure that enrichment of the recipient of the payment is prevented only in circumstances where it would be unjust. This does not mean that the concept of unjust enrichment needs to shift the primary focus of its attention from the moment of enrichment. 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. However, the defence of change of position is relevant to the enrichment of the defendant precisely because its central element is that the defendant has acted to his or her detriment on the faith of the receipt… In the jurisdictions in which it has been accepted (Canada and the United States), the defence operates in different ways but the common element in all cases is the requirement that the defendant point to expenditure or financial commitment which can be ascribed to the mistaken payment … In Canada and in some United States decisions, the defendant has been required to point to specific expenditure being incurred because of the payment. Other cases in the United States … allow a wider scope to the defence, such that a defendant can rely upon it even though he or she cannot precisely identify the expenditure caused by the mistaken payments. In no jurisdiction, however, can a defendant resort to the defence of change of position where he or she has simply spent the money received on ordinary living expenses.
[117] David Securities (385) - (386) (emphasis in original) (references omitted).
Central to this defence is the existence of a 'cause and effect relationship' between the mistaken payment and the subsequent action. As Barrett JA stated in Citigroup Pty Ltd v National Australia Bank Ltd, referring to the passage in David Securities which I have just quoted:[118]
The reference in David Securities Pty Ltd v Commonwealth Bank of Australia to expenditure or financial commitment 'which can be ascribed to the mistaken payment' therefore contemplates a cause and effect relationship between receipt of the mistaken payment and the subsequent expenditure or financial commitment. If it is found that the subsequent action would not have been taken 'but for' the receipt, the causal link will be established. I do not say that it might not also be established by proof of some less clear-cut connection; but, given the facts of the present case, that is a question that need not be pursued.
[118] Citigroup Pty Ltd v National Australia Bank Ltd [2012] NSWCA 381; (2012) 82 NSWLR 391 [86] (Barrett JA, with whom Bathurst CJ, Allsop P, Meagher JA and Macfarlan JA agreed).
And by the Victorian Court of Appeal in Southage Pty Ltd v Vescovi:[119]
If it is shown that the respondent was acting in reliance on the receipt of the deposit when she entered the transaction that caused her detriment, the required causal link will be satisfied. Equally, if it is shown that the respondent would have entered into the transaction in any event, the detriment that resulted from the purchase cannot be said to be causally related to the receipt and therefore falls outside the operation of the defence.
[119] Southage [67].
In Smith the Court of Appeal adopted the following passage from the decision of Gageler J in Hills Industries:[120]
The defence of change of position is established where a defendant proves the existence of two conditions. The first condition is that the defendant has acted (that is, done something the defendant would not otherwise have done) or refrained from acting (that is, not done something the defendant would otherwise have done) in good faith on the assumption that the defendant was entitled to deal with the payment which the defendant received. The defendant need not for the purpose of meeting this condition have acted on knowledge derived from the payer. Whether the defendant needs also to have acted reasonably is a question which does not now arise for determination. The second condition is that, by reason of having so acted or refrained from acting, the defendant would be placed in a worse position if ordered to make restitution of the payment than if the defendant had not received the payment at all. The detriment constituted by that difference in position need not, in every case, be financial or pecuniary. If financial or pecuniary, it need not, in every case, be established with precision. It can be an opportunity forgone. It must, in every case, be shown by the defendant to be substantial.
[120] Hills Industries [157]; Smith [199].
In Smith the Court of Appeal also adopted the summary of the key elements of the change of position defence by Buss JA in Alpha Wealth, in the following terms:[121]
1. The recipient must have changed his or her position. Such change in position must be legally or practically irreversible, or alternatively, there must be significant difficulties in reversing the change.
2. The recipient must have changed his or her position on the faith of the receipt, ie the change in position must have been 'caused by the receipt'.
3. The recipient must have changed his or her position in good faith.
4. The recipient's change of position must accord with his or her knowledge of the facts and circumstances attending the payment.
5. The critical moment for the recipient is when the change of position occurs.
6. The change in position must be to the recipient's detriment. However, Buss JA noted a difference in the authorities. On the 'narrow version' of the defence it is necessary for the recipient to prove a detrimental reliance on the faith of or on the validity of the receipt. On the 'wide version' the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him or her to make restitution, or alternatively, to make restitution in full.
7. The recipient bears the onus of establishing the defence of change of position.
[121] Smith [200]; Alpha Wealth [202] - [205].
The Court of Appeal in Smith added that the 'circumstances in which a payee acts on the faith of or in reliance on a receipt will be many; it is a factual question in each case'.[122]
Investment's position
[122] Smith [201].
Investment's position is set out in par 13(b) of the defence:
(b)Change of position
(i)The Defendant utilised the Payments it received from the Plaintiff for the purpose of discharging the various liability for Outgoings incurred by the Defendant in relation to the Premises during the Relevant Period;
(ii)By its on‑payment of the said monies to discharge the Outgoings, the Defendant has adversely changed its position in good faith in the belief that it was entitled to retain the Payments it received from the Plaintiff;
(iii)But for the Payments, the Defendant would not have changed its position by transferring its right of possession of the Premises to the Plaintiff, nor by permitting the Plaintiff to retain exclusive occupation of the Premises during the Relevant Period.
Mr Cordisco did not quite give evidence that the Outgoings Payments were in fact used by Investment to pay its outgoings,[123] though I am prepared to infer that it did.
[123] ts 198 - ts 199.
Investment submitted that it does not matter that some of the payments of outgoings made by Investment were in fact made before it received any money from Trimat. This is because the defence can apply to an anticipatory change of position. Counsel relied on the following observation of Buss JA in Alpha Wealth:[124]
It appears that the defence may apply to an anticipatory change of position in addition to a subsequent change of position. That is, it may extend to losses incurred before, but in anticipation of, the receipt of the payment in question.
[124] Alpha Wealth [204].
Investment also submitted that it had changed its position because the delay in making the claim resulted in it losing the opportunity to comply with the Estimates Provision and remove the bar to recovering the payments.[125]
Trimat's position
[125] Defence, par 13(f)(iii); ts 228.
Trimat accepts that change of position is a potential defence to a claim in restitution, but says that it does not arise in the facts of the present case.[126] This is for two reasons.
[126] Reply, par 6.
The first is that Investment has not established that it changed its position on the faith of the receipt, that is, that there was no change in position caused by the receipt. This is because:
(a)Investment in fact paid the outgoings before receiving any money from Trimat; and
(b)Investment was, in any event, under obligation to pay the relevant outgoings, regardless of whether it was paid by Trimat.
The second reason is that Investment has not proven that it changed its position 'in good faith'. Counsel placed reliance on the observation by Buss JA in Alpha Wealth that a 'recipient will not act in good faith if the recipient knows that he or she does not have a valid claim or suspects that he or she may not have a valid claim to the amount in question'.[127]
[127] Alpha Wealth [204].
Counsel for investment invited the court to find that in cross‑examination, Mr Cordisco conceded that he:
(a)had the responsibility of negotiating the Lease with the representative of Trimat's franchisor;
(b)allowed the lawyer for Trimat's franchisor to prepare the Lease to save costs; and
(c)read the entire Lease before he signed it, including the Tenant Guide.
Based on these concessions, counsel invited the court to infer that Mr Cordisco, and Investment by imputation, was aware of the contents of the Tenant Guide in the Lease before executing it. Counsel also invited the court to find that at the time each payment was made, Investment knew or suspected that it might not have a valid claim to receive payment because of what Mr Cordisco read in the Tenant Guide to the Lease before he executed it.
Mr Cordisco ceased to be a director Investment on 18 February 2011.[128] This was just after the Lease was executed. Its current sole director did not give evidence. Trimat's position is that after Mr Cordisco ceased to be a director, there is no evidence from which the court could conclude that he continued to be a directing mind and will of Investment, and thus no evidence of anything having been done by Investment (as opposed to Mr Cordisco) on the faith of the receipt of the payments from Trimat. In this regard, reliance was placed on the following observations by Buss JA in Alpha Wealth:[129]
The respondent's failure to adduce any evidence as to the state of mind of its controllers at material times precludes a finding that any change of position of the respondent was 'on the faith of' or 'caused by' the receipt. For example, the respondent's failure to call any of its directors or other officers as witnesses means none of them gave any evidence to the effect that they believed the respondent was lawfully entitled to the additional fees and contributions from the appellants (and the other growers) as a result of the amendments made to the scheme constitution pursuant to the resolutions passed at the meetings on 23 January 2003 and 21 July 2003. It is apparent from the notices relating to each of those meetings that the respondent was in receipt of advice from solicitors in connection with the proposed amendments to the scheme constitution. If any of the respondent's directors or other officers had entered the witness box they would, no doubt, have been cross‑examined on their belief as to the efficacy of the amendments to the Constitution, and whether they believed there was any doubt as to the lawfulness of the demands for additional fees and contributions in the absence of compliance with cl 12.6 of the 1999 LAMAs or agreed variations to those agreements. There is no basis for inferring that any change of position was in good faith or that any change of position was on the faith of or caused by the receipt. It is unnecessary, in the circumstances, to consider whether any other elements of the common law defence or the statutory defence were established at the trial.
Determination
[128] Exhibit 38.
[129] Alpha Wealth [212].
Investment has not satisfied me on the balance of probabilities that the receipt of any of the Outgoings Payments caused it to change its position. It was legally obliged to pay the outgoings (land tax, council rates, water rates and strata levies) regardless of whether it was paid by Trimat. I accept Mr Cordisco's evidence that his practice was to pay these amounts on their due date.[130] This is consistent with the agreement payment schedule prepared by the parties.[131] From that schedule it is evident that, on many occasions, the payment by Investment appears to have been made prior to receipt of money from Trimat.[132] It is also evident from this schedule that there is no correlation between the payment of outgoings by Trimat (on a monthly cycle) and the payment of the council rates, water rates and land tax by Investment, which was based on annual (council rates and land tax) or bimonthly (water rates) billing cycles.
[130] ts 186.
[131] Exhibit 32.
[132] Exhibit 32.
The fact that Investment used the money received from Trimat to reimburse it for its outgoings expenditure, whether in arrears or in advance, is not sufficient. Investment simply continued to pay these expenses when they were due. There is no evidence from Mr Cordisco that Investment did something it would not otherwise have done, or that it did not do something it would otherwise have done, on the assumption that it was entitled to receive and retain the Outgoings Payments. There is nothing in the evidence of Mr Cordisco or the exhibited documents which would in any way form the basis for a factual finding that, but for the receipt of the payments from Trimat, it would not have paid these outgoings. Rather, on Mr Cordisco's evidence and the payment practices discussed in the previous paragraph, I find that Investment would have paid them in any event as it was, to Mr Cordisco's knowledge,[133] legally obliged to do. Had Trimat ceased paying outgoings (for example, by exercising its rights under CTRSA s 12 or becoming insolvent), Investment would have been legally obliged to keep paying the outgoings for the leased premises.
[133] ts 198.
As to the submission that Investment changed its position because the delay in making the claim resulted in it losing the opportunity to comply with the Estimates Provision and remove the bar to recovering the payment, this cannot be characterised as a change in its position. The present case is different from that considered by the High Court in Hills Industries in which there was evidence that, on receipt of the mistaken payment, the recipients had ceased recovery action against the party on whose behalf they thought the payment had been made.[134]
[134] See for example: Hills Industries [95] - [96].
As there was no change in position, there is no factual basis for me go and assess whether the change in position was in good faith. Nor is there a factual basis to assess whether the change in Investment's position was such as to render it unjust to order restitution, either on the basis of detrimental reliance or a broader notion of inequity.[135]
[135] Referring to both the narrow version and wide version identified buy Buss JA in Alpha Wealth, as summarised by the Court of Appeal in Smith [200], quoted above at [107].
I find that it is not unjust to make an order for restitution on the basis of a change in position by Investment in reliance on receipt of each of the Outgoings Payments.
Does Investment have a defence to Trimat's claim in restitution on the ground that it would be unconscionable or otherwise inequitable to require Investment to repay the money?
Investment's position
Investment pleads in paragraph 16 of the defence that '[f]urther or alternatively, it would unconscionable or otherwise inequitable for [Trimat] to claim title to the recovery of any of the' Outgoings Payments.[136] There is a similar pleading earlier that the various matters identified in paragraph 13 'demonstrate that the Defendant's retention of the relevant [p]ayments is not (in the circumstances) unjust or otherwise unconscionable'. Those matters were under the headings:
•Change of position
•Quantum meruit
•Use and occupation
•Acquiescence and delay
[136] Defence, par 16.
Counsel for Investment was content for these remaining matters identified in the defence to be addressed in the context of the issue which I have identified.[137]
[137] ts 89 - ts 91, ts 98 - ts 99, ts 102 - ts 103.
Investment's position is based on the decision of the plurality in Hills Industries. Its position is that there is a general defence to the effect that the prima facie liability will be displaced if the recipient establishes that an order for restitution would be inequitable in the circumstances so that it is not unjust for it to retain the payments.[138] That is to be determined by inquiring 'who should properly bear the loss and why … by reference to equitable principles'.[139]
[138] Defendant's opening submissions, par 29, citing ANZ (673); David Securities (379); Hills Industries [77] ‑ [98].
[139] Hills Industries [78] (emphasis in original).
The submissions continue that a change of position by a recipient in reliance upon the receipt of a payment is a species of the genus of cases in which it would be inequitable or unjust to require restitution, but it is not the only circumstance in which an order for restitution.[140] Rather 'the question is whether it would be unconscionable for a recipient who has changed its position on the faith of the receipt should be required to repay'.[141] So:[142]
It will be unconscionable to require restitution where the continuance of an assumed state of affairs in business over a period of time would cause disruption to the defendant's business, e.g. where the defendant has received mistaken payments on a regular basis and has taken them into account in organising its finances … . In a commercial context, the passage of time may cause sufficient detriment to the defendant to render restitution inequitable.
Trimat's position
[140] Defendant's opening submissions, par 30.
[141] Hills Industries [88].
[142] Defendant's opening submissions, par 31, citing Hills Industries at [88] - [89] and [90] - [92].
Trimat's position is that the decision in Hills Industries does not create any wider change of position defence. Rather, the change of position defence is as stated by the Court of Appeal in Smith in the passages that I have quoted above ([106] - [107]). Counsel also placed reliance on the decision of the Victorian Court of Appeal in Southage in which the court observed that the formulation of the defence as proposed by Gageler J (quoted at [106] above) was consistent with the defence, and the principles on which it is based, as discussed by the plurality.[143]
[143] Southage [64] - [65].
Counsel also drew the court's attention to the dicta in Hons v Hons that it is 'well recognised that equitable defences … such as laches and acquiescence are not available as a defence to a legal claim'.[144]
What principle may be drawn from the decision in Hills Industries?
[144] Hons v Hons [2010] NSWSC 247 [93] (Ward J).
The facts in Hills Industries are succinctly stated in the decision of the plurality (Hayne, Crennan, Kiefel, Bell and Keane JJ):[145]
The question in this appeal is whether, in the circumstances of the case, a claim to recover money paid by mistake should have been refused because of the recipients' change of position.
The essential facts which gave rise to this question may be shortly stated. The payer, a financier, made payments to suppliers of goods who were trade creditors of a customer of the payer. The payer was induced to make these payments by the fraud of the customer. At the customer's request, the recipients applied the payments to the discharge of the customer's debts. When the payer discovered the fraud and demanded repayment, the recipients resisted the claim on the basis that they had changed their position on the faith of the payments.
Between the receipt of the payments and the payer's demand on the recipients for repayment more than six months elapsed, during which time each recipient treated the debts previously owed by the customer as repaid, ceased to pursue repayment of those debts from the customer and continued to trade with it. The payer also continued to trade with the customer. The customer itself continued to trade with other businesses.
The recipients' reliance upon the actions which they took, consequent upon the receipt of the moneys mistakenly paid by the payer, as making out a defence of change of position, directs attention to the question whether they would suffer a detriment if they were required to repay. The payer's principal contention was that a conclusion on this question could not be reached by reference only to abandonment of the opportunity to recover the debts owed by the customer and the mere entry into further transactions. It was necessary to value what had been lost in order to determine whether a recipient was 'worse off' in economic terms and this had not been done.
The payer's contention enjoyed mixed success at trial.. but was rejected by the Court of Appeal of New South Wales …
[145] Hills Industries [33] - [37].
All members of the High Court dismissed the appeal.[146]
[146] Hills Industries [32] (French J); [38] (Hayne, Crennan, Kiefel, Bell and Keane JJ); [167] (Gageler J).
It is convenient to commence with the decision of Gageler J as I have already quoted two of the central premises of His Honour's decision (at [42] and [106]). His Honour emphasised that the concept of unjust enrichment informed both the circumstances in which the law will recognise a prima facie obligation to make restitution of a payment and the circumstances which, if proved by a defendant, would show that his receipt or retention of the payment is not unjust, and in which the law would recognise a defence.[147] From the decision in David Securities, his Honour drew three points:[148]
that the concept of [u]njust enrichment provides a link between what might otherwise appear to be distinct categories of liability; that it can assist, by the ordinary processes of legal reasoning, in the development of legal principle; and that it is not a sufficient premise for direct application in a particular case.
[147] Hills Industries [136].
[148] Hills Industries [139].
French CJ likewise observed that '[u]just enrichment came to be seen not as a principle of…direct application in a particular case … but rather as a taxonomical concept'.[149] The Chief Justice expressed the defence in the following terms:[150]
A recipient of a payment made under mistake may suffer a detriment by acting on the faith of the payment. If the detriment cannot be reversed at the time that demand is made of the recipient, the recipient can be said to have changed its position and to have a defence to a claim for repayment of the money as money had and received. Whether or not the defence is available depends upon whether it would be inequitable for the recipient to refuse to repay the money. That is a judgment which the recipient, properly advised, must be able to make within a reasonable time and at a reasonable cost.
[149] Hills Industries [20], and more generally [21] - [25].
[150] Hills Industries [27].
At this point I observe that the Court of Appeal in this State in Smith preferred the formulation adopted by Gageler J over that adopted by French J. Hence, it is appropriate that I did likewise (as reflected in the analysis at [120]).
That leaves the issue as to whether the decision of the plurality is authority for a wider or different proposition.
The plurality made it clear that the defences to an action in unjust enrichment do not involve 'a balancing of competing equities as between the parties, based on considerations such as fault'.[151] Rather:[152]
The question here is whether it would be inequitable in all the circumstances to require [the recipients] to make restitution. The answer to that question is not at large, but neither is it simply a measure of the monetary extent to which the recipient remains enriched by the receipt at the time of demand for repayment.
[151] Hills Industries [69].
[152] Hills Industries [69].
The plurality then went on to consider the specific category of defence of change of position. The clearest exposition of the principle relied on by the plurality is that in the following two passages:[153]
As Gummow J, writing extra-judicially, has said: … '[I]t is important to appreciate that "change of position" is a species of the genus "inequitable", not a synonym for it.' One category of case in which it would be inequitable to require a recipient to repay is where the recipient has so far altered its position in relation to the receipt that it would be a detriment to it if it were now required to repay. …
…
In the context of mistaken payments, the question is whether it would be unconscionable for a recipient who has changed its position on the faith of the receipt to be required to repay.
[153] Hills Industries [77], [88] (footnotes omitted).
In applying the test, the plurality considered the manner in which the recipients had changed their positions, observed that 'these consequences were irreversible as a practical matter of business', and concluded that, in the circumstances of the case, the disadvantages which would enure to recipients of the mistaken payments if they were required to repay the monies that each received were such 'that it would be inequitable to require them to do so'.[154]
[154] Hills Industries [95] - [96].
I do not regard the decision of the plurality in Hills Industries as being authority for the proposition alluded to in the defence which I have referred to at [124]. I cannot discern from the decision of the plurality in Hills Industries a defence along the lines that it is sufficient that the recipient prove that it would be 'unconscionable or otherwise inequitable' or 'unjust or otherwise unconscionable'[155] for it to have to repay the money. Rather, the divergence in reasoning of the members of the High Court is best seen as reflecting the distinction between the 'narrow version' (Gageler J) and the 'wide version' (Hayne, Crennan, Kiefel, Bell and Keane JJ) (with the formulated adopted by French CJ perhaps straddling both) of the required detriment identified by Buss JA in Alpha Wealth, and recognised by the Court of Appeal in Smith (see [107] above). I am of course bound to follow the decision in Smith.
[155] Defence, pars 13(g) and 16.
The principle suggested on behalf of Investment would also be inconsistent with other statements by members of the High Court to the effect that unjust enrichment is not a sufficient premise for direct intervention in a particular case.[156]
[156] See for example: Bofinger v Kingsway Group Ltd [2009] HCA 44; (2009) 239 CLR 269 [85] - [86] (Gummow, Hayne, Heydon, Kiefel and Bell JJ); Equuscorp [30].
I also accept the submission made by counsel for Trimat that I am also bound to follow the approach of the Victorian Court of Appeal in Southage which I have referred to at [128].[157] I regard the decision in Southage as being wholly consistent with the decision in Smith.
[157] Southage [65].
Nor is there any support in the leading Australian academic texts that the decision of the plurality in Hills Industries is authority for the existence of any wider or all-encompassing defence to a claim in unjust enrichment along the lines proposed on behalf of Investment.[158]
[158] J Edelman and E Bant, Unjust Enrichment (Oxford and Portland, Oregon, 2nd ed, 2016), pages 24 - 28, Part IV; K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (LexisNexis Butterworths, 3rd ed, 2016) pages 28, 861 - 864.
Even applying the formulation of the change of positon defence as expressed by the plurality in Hills Industries, I do not arrive at any different conclusion to that at [120] - [121]: I am not satisfied that Investment in fact changed its position on the faith of receipt of the Outgoings Payments from Trimat, so the issue of whether that change of position was unconscionable or inequitable does not arise.
As I cannot discern from the decision of the plurality in Hills Industries a defence along the lines that it is sufficient that Investment prove that it would not be unconscionable, unjust or otherwise inequitable for it to retain the Outgoings Payments, there is no principled framework against which I can analyse the various factors relied on by counsel for Investment as justifying the application of a defence in those terms.
As an aside, there is a defence to a claim for recovery of a payment made under a mistake which comes close to that suggested by counsel for Investment as arising from the decision in Hills Industries. This is the defence in PLA s 125(2), which is in the following terms:
(1)Relief, whether under section 124 or in equity or otherwise, in respect of any payment made under mistake, whether of law or fact, shall be denied wholly or in part if the person from whom relief is sought received the payment in good faith and has so altered his position in reliance on the validity of the payment that in the opinion of the Court, having regard to all possible implications in respect of the parties (other than the plaintiff or claimant) to the payment and of other persons acquiring rights or interests through them, it is inequitable to grant relief, or to grant relief in full.
The defence in PLA s 125(1) is largely consistent with the pleaded position of Investment in the defence, though it still requires there to be an alteration in position. However, as PLA s 125(1) was not specifically relied on by Investment and thus not the subject of any submissions at trial, I do not need to consider its application in the present case.
Is any part of Trimat's claim outside the limitation period?
Given my finding on liability, the issue of whether any part of Trimat's claim is outside the limitation period largely falls away. However, in case I am wrong about liability, it is appropriate that I set out my findings on this issue.
It was common ground that the relevant limitation period is that in Limitation Act 2005 (WA) s 13(1), which provides that an 'action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued'. The writ was filed on 13 June 2018.
Investment pleads that a number of payments made by Trimat were made prior to 13 June 2012, and so fell outside the relevant limitation period.[159]
[159] Defence, par 13(e).
Counsel for Trimat submitted that the pleaded cause of action only accrued when Investment could no longer neutralise the suspension of the requirement to pay operating expenses. Given the requirement of CTSRA s 12(d)(i) to provide annual estimates of expenditure (which were not provided), Trimat contends that the cause of action with respect to Outgoings Payments made with respect to periods of payments from 1 July 2011 an onwards accrued no earlier than 1 July 2012 (which is within the 6 year limitation period).[160] At the point in time the payment is made, the loss is only contingent loss.[161] Depending on whether Investment complied with CTRSA s 12, the obligation to pay may either become retrospectively reinstated or extinguished. 'It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled'.[162]
[160] Plaintiff's opening submissions, par 34.
[161] Citing Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 532 - 533 (Mason CJ, Dawson, Gaudron and McHugh JJ); 555 - 558 (Toohey J) (Wardley).
[162] Wardley (533).
Trimat's position as regards the limitation period is at odds with its position as regards the existence of the mistake of law, and indeed is much closer to the position asserted by Investment. For the reasons I have set out above, the operative mistake of law was that Trimat was legally obliged to make each of the Outgoings Payments when it in fact did. It follows that the mistake arose at the point of payment, and not at the point at which the potential for Investment to take action to recover the particular Outgoings Payment ceased.
It is well settled that if 'under a mistake, money is paid to and unjustly enriches a payee, the payer's right to recover the amount paid accrues at the moment when the payee received the money'.[163]
[163] David Securities (389). See also: David Securities (378) - (379), (385); ANZ (673); Torrens Aloha Pty Ltd v Citibank NA (1997) 144 ALR 89, 102 (Sackville J).
In the present case, given the characterisation of the mistake of law which I have found, I further find that the cause of action accrued at the point in time Investment received each individual payment.
In its submissions, Investment identified an amount of $30,969.95 as falling outside the limitation period,[164] a figure not challenged by counsel for Trimat, and a figure which accords with my review of the evidence.[165]
[164] Defendant's opening submissions, par 35.
[165] The dates of each payment are set out in the schedule to these reasons.
Accordingly, had I found Investment liable to make restitution for the amounts it received from Trimat, I would have excluded the amount of $30,969.95 on the basis that this part of the claim was outside the applicable limitation period.
If Investment is liable to repay any of the Outgoings Payments, should any order be made pursuant to PLA s 125(2)?
Given my finding on liability, the issue of whether an order should be made to the benefit of Investment pursuant to PLA s 125(2) largely falls away; it only arises in respect of the aggregate of the final payments for each relevant year. Again, in case I am wrong about liability, it is appropriate that I set out my findings in this issue.
Section 125(2) of the PLA is in the following terms:
(2)Where the Court makes an order for the repayment of any money paid under a mistake, the Court may in that order direct that the repayment shall be by periodic payments or by instalments, and may fix the amount or rate thereof, and may from time to time vary, suspend or discharge the order for cause shown, as the Court thinks fit.
Investment did not plead reliance on PLA s 125(2) in its defence. Rather, it first raised the issue of reliance on PLA s 125(2) in its opening submissions filed on 10 February 2021.[166]
[166] Defendant's opening submissions, par 36.
Counsel for Trimat objected to Investment relying on PLA s 125(2) on the ground that it had not been pleaded.
At the commencement of the trial, I rejected Trimat's objection, holding that the power in PLA s 125(2) was a discretion to be exercised in determining whether to order the remedy sought. Provided the facts on which it is to be exercised were within the scope of the pleadings, it was not required to be specifically pleaded. Moreover, Trimat was sufficiently on notice that Investment would argue the issue at trial (it being aerated in Investment's written opening submission) for no issue of procedural fairness to arise.
Investment did not lead any evidence at trial as to its financial position (nor could it as this would have been outside the scope of the facts set out in its defence).
Rather, counsel for Investment invited the court to look at the statutory context in which the discretion in PLA s 125(2) is required to be exercised. Counsel observed that this provision was introduced at the same time as PLA s 124(1) which abolished the distinction between a mistake of fact and a mistake of law. He suggested that the concerns historically expressed by courts with allowing recovery of payments made under a mistake of law, such as upsetting security of receipts and certainty in past transactions, provide an instructive context.[167]
[167] See generally: David Securities (370) - (378), (398).
Counsel for the Investment invited the court, in exercising the discretion, to take into account the total sum involved, the period over which the payments were made, the frequency with which the payments were made, the amount of the individual payments and the income which Investment derived from the Lease.
Counsel for Trimat referred the court to the decision of French J in Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v D F McCLoy Pty Ltd (No 1).[168]The decision in that case just predated the decision of the High Court in David Securities.[169] However, on the basis of PLA s 124(1), French J allowed recovery of money paid under a mistake of law. His Honour quoted PLA s 125(2), but, without any analysis, did not apply it, simply awarding judgment in full against the defendant.[170]
[168] Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v D F McCloy Pty Ltd (No 1) (1991) 28 FCR 151 (Inn Leisure).
[169] Inn Leisure (169) (French J).
[170] Inn Leisure (154), (171).
Counsel for Trimat placed emphasis on the concluding words of the sub-section - 'and may fix the amount or rate thereof, and may from time to time vary, suspend or discharge the order for cause shown, as the Court thinks fit'. The submission was made that this clause contemplates that the amount of periodic payments must be an amount that the Court is satisfied that the defendant can reasonably meet in circumstances where the defendant cannot immediately meet with entire judgment. Further, not only must the court consider the financial position of the defendant at the time of judgment and prospectively, but it must also consider the hardship to the plaintiff of having its usual entitlement to enforce a judgment to be suspended. Trimat's position is that Investment has not adduced sufficient evidence to justify the exercise of the discretion in PLA s 125(2).
The discretion in PLA s 125(2) is unqualified in the sense that there is no principle against which it is to be exercised, factors which may or must be considered and no factors which may or must not be considered. However, it must be exercised judicially, that is, in accordance with established principles and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the legislative intent.[171] It must be exercised so as to achieve what is fair and just between the parties according to the circumstances of the particular case.[172]
[171] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, [22] (Brennan CJ), [65] - [66] (McHugh J), [134] (Kirby JJ) (by analogy); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [48] (judgment of the court) (by analogy).
[172] Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 558 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) (by analogy).
Further, it is for Investment as the party seeking to move the court to exercise its discretion to persuade the court that it is an appropriate case in which to do so.[173]
[173] Easy Stay Mining Accommodation Pty Ltd v Mt Morgans WA Mining Pty Ltd [2020] WASCA 86 [133] (reasons of the court) (by analogy) (Easy Stay Mining).
In terms of the context in which the discretion is to be exercised, at the point in time the issue of PLA s 125(2) arises, the court will have already determined that it is appropriate to make an order for the repayment of any money paid under a mistake. By analogy to the position in which an order is sought to suspend enforcement of judgment, the successful litigant is ordinarily immediately entitled to the fruits of the judgment is has obtained.[174]
[174] Easy Stay Mining [133].
However, I agree with counsel for Investment that some regard must be given to the statutory context in which PLA s 125(2) is found. In my view, the statutory context means that the merits of the unsuccessful claim (in particular the nature and circumstances of the mistake) would be accorded more weight than in the usual context where a suspension order is considered following trial. Though, ultimately, this observation does not assist Investment.
It is difficult to imagine a situation in which it would be appropriate for the court to exercise the discretion in PLA s 125(2) in the absence of evidence as to the financial position of the party who would otherwise be ordered to immediately repay the entire amount of the money paid under a mistake; it would be very difficult to argue that it is not fair and just to order a well-resourced defendant to immediately repay money received under a mistake.
In the present case, had I determined the issue of liability totally in favour of Trimat, on the evidence before the court I would not have made an order for the judgment to be paid by periodic payments or instalments pursuant to PLA s 125(2). The evidence presented by Investment falls well short of persuading me that it would be fair and just as between the parties to make such an order. Had I done so, I accept the point made by counsel for Trimat that an order of this kind should include liberty to apply to argue that the court should 'vary, suspend or discharge the order for cause shown', as contemplated in the concluding words of PLA s 125(2).
Given that the amount of the aggregate of the final payments for each relevant year is only a small proportion of the amount claimed, I am likewise not persuaded by Investment that it is appropriate to make an order pursuant to PLA s 125(2) in respect of this amount.
What final orders are appropriate?
For these reasons, I find that while each of the Outgoings Payments was made under a mistake of law, Investment gave good consideration for all payments aside from the final payment for each relevant year, such that its receipt and retention of these payments is not unjust. I will hear from counsel as to which payments are to be characterised as the last payment for each relevant year.
Trimat is entitled to judgment in the amount of the aggregate of the final payments for each relevant year. Otherwise, its claim should be dismissed.
I will hear from the parties as to interest and costs.
Schedule
SCHEDULE OF PAYMENTS FOR OPERATING EXPENSES
| Invoices paid (Invoice no.) | Invoice period | Date invoice paid | Total Outgoings paid (excluding GST) | Total Outgoings paid (including GST) |
| 598 | 01/08/17 to 31/08/17 | 29/08/17 | $3,740.69 | $4,114.76 |
| 591 | 01/07/17 to 31/07/17 | 28/07/17 | $3,740.69 | $4,114.76 |
| 583 | 01/06/17 to 30/06/17 | 26/06/17 | $3,740.69 | $4,114.76 |
| 573 | 01/05/17 to 31/05/17 | 28/05/17 | $3,740.69 | $4,114.76 |
| 566 | 01/04/17 to 30/04/17 | 29/04/17 | $3,740.69 | $4,114.76 |
| 557 | 01/03/17 to 31/03/17 | 31/03/17 | $3,740.69 | $4,114.76 |
| 550 | 01/02/17 to 29/02/17 | 27/02/17 | $3,740.69 | $4,114.76 |
| 543 | 01/01/17 to 31/01/17 | 30/01/17 | $3,740.69 | $4,114.76 |
| 530 | Credit for Oct and Nov 2016 outgoings from Strata $277.50/ month (GST inclusive) | -$504.55 | -$555.01 | |
| 529 | 01/12/16 to 31/12/16 | 29/12/16 | $3,740.69 | $4,114.76 |
| 523 | 01/11/16 to 30/11/16 | 28/11/16 | $3,931.90 | $4,325.09 |
| 508 | 01/10/16 to 31/10/16 | 31/10/16 | $3,931.90 | $4,325.09 |
| 507 | 01/09/16 to 30/09/16 | 28/09/16 | $3,931.90 | $4,325.09 |
| 496 | 01/08/16 to 31/08/16 | 26/08/16 | $3,894.00 | $4,283.40 |
| 490 | 01/07/16 to 31/07/16 | 29/07/16 | $3,894.00 | $4,283.40 |
| 489 | 01/06/16 to 30/06/16 | 21/06/16 | $3,894.00 | $4,283.40 |
| 478 | 01/05/16 to 31/05/16 | 27/05/16 | $3,894.00 | $4,283.40 |
| 470 | 01/04/16 to 30/04/16 | 16/04/16 | $3,894.00 | $4,283.40 |
| 469 | 01/03/16 to 31/03/16 | 26/03/16 | $3,894.00 | $4,283.40 |
| 456 | 01/02/16 to 29/02/16 | 29/02/16 | $3,894.00 | $4,283.40 |
| 447 | 01/01/16 to 31/01/16 | 24/01/16 | $3,894.00 | $4,283.40 |
| 445 | 01/12/15 to 31/12/15 | 23/12/15 | $3,894.00 | $4,283.40 |
| 438D | 01/11/15 to 30/11/15 | 25/11/15 | $3,894.00 | $4,283.40 |
| 431 | 01/10/15 to 31/10/15 | 23/10/15 | $3,664.54 | $4,030.99 |
| 425 | 01/09/15 to 30/09/15 | 28/09/15 | $3,664.54 | $4,030.99 |
| 419 | 01/08/15 to 31/08/15 | 21/08/15 | $3,664.54 | $4,030.99 |
| 409 | 01/07/15 to 31/07/15 | 27/07/15 | $3,664.54 | $4,030.99 |
| 401 | 01/06/15 to 30/06/15 | 24/06/15 | $3,664.54 | $4,030.99 |
| 395 | 01/05/15 to 31/05/15 | 14/05/15 | $3,664.54 | $4,030.99 |
| 388 | 01/04/15 to 30/04/15 | 28/04/15 | $3,664.54 | $4,030.99 |
| 386 | 01/03/15 to 31/03/15 | 23/03/15 | $3,664.54 | $4,030.99 |
| 375 | 01/02/15 to 28/02/15 | 23/03/15 | $3,664.54 | $4,030.99 |
| 370 | 01/01/15 to 31/01/15 | 20/01/15 | $3,664.54 | $4,030.99 |
| 360 | 01/12/14 to 31/12/14 | 30/12/14 | $3,664.54 | $4,030.99 |
| 345+347 | 01/11/14 to 30/11/14 | 29/11/14 | $3,664.54 | $4,030.99 |
| 338 | 01/10/14 to 31/10/14 | 24/10/14 | $2,559.50 | $2,815.45 |
| 334 | 01/09/14 to 31/09/14 | 23/09/14 | $2,559.50 | $2,815.45 |
| 323 | 01/08/14 to 31/08/14 | 21/08/14 | $2,559.50 | $2,815.45 |
| 312 | 01/07/14 to 31/07/14 | 26/07/14 | $2,559.50 | $2,815.45 |
| 304 | 01/06/14 to 30/06/14 | 28/06/14 | $2,559.50 | $2,815.45 |
| 291 | 01/05/14 to 31/05/14 | 22/05/14 | $2,559.50 | $2,815.45 |
| 279 | 01/04/14 to 30/04/14 | 30/04/14 | $2,559.50 | $2,815.45 |
| 261 | 01/03/14 to 31/03/14 | 27/03/14 | $2,559.50 | $2,815.45 |
| 243 | 01/02/14 to 28/02/14 | 24/02/14 | $2,559.50 | $2,815.45 |
| 229 | 01/01/14 to 31/01/14 | 23/01/14 | $2,559.50 | $2,815.45 |
| 215 | 01/12/13 to 31/12/13 | 22/12/13 | $2,559.50 | $2,815.45 |
| 208 | 01/11/13 to 30/11/13 | 21/11/13 | $2,559.50 | $2,815.45 |
| 175 | 01/10/13 to 31/10/13 | 17/10/13 | $2,559.50 | $2,815.45 |
| 155 | 01/09/13 to 30/09/13 | 20/09/13 | $2,559.50 | $2,815.45 |
| 180 | 01/08/13 to 31/08/13 | 23/08/13 | $2,559.50 | $2,815.45 |
| 165 | 01/07/13 to 31/07/13 | 25/07/13 | $2,559.50 | $2,815.45 |
| 155 | 01/06/13 to 30/06/13 | 26/06/13 | $2,559.50 | $2,815.45 |
| 135 | 01/05/13 to 31/05/13 | 25/05/13 | $2,559.50 | $2,815.45 |
| 123 | 01/04/13 to 30/04/13 | 25/04/13 | $2,559.50 | $2,815.45 |
| 111 | 01/03/13 to 31/03/13 | 22/03/13 | $2,559.50 | $2,815.45 |
| 90 | 01/02/13 to 28/02/13 | 25/02/13 | $2,559.50 | $2,815.45 |
| 80 | 01/01/13 to 31/01/13 | 23/12/12 | $2,559.50 | $2,815.45 |
| 62 | 01/12/12 to 31/12/12 | 26/01/13 | $2,559.50 | $2,815.45 |
| 41 | 01/11/12 to 30/11/12 | 28/11/12 | $2,559.50 | $2,815.45 |
| 31 | 01/10/12 to 31/10/12 | 29/10/12 | $2,559.50 | $2,815.45 |
| 8 | 01/09/12 to 30/09/12 | 25/09/12 | $2,559.50 | $2,815.45 |
| N022a | 01/08/12 to 31/08/12 | 24/08/12 | $2,559.50 | $2,815.45 |
| N021a | 01/07/12 to 31/07/12 | 14/07/12 | $2,559.50 | $2,815.45 |
| N019 | 01/06/12 to 30/06/12 | 14/06/12 | $2,559.50 | $2,815.45 |
| N018 | 01/05/12 to 31/05/12 | 02/05/12 | $2,559.50 | $2,815.45 |
| N017 | 01/04/12 to 30/04/12 | 18/04/12 | $2,559.50 | $2,815.45 |
| N016 | 01/03/12 to 31/03/12 | 23/03/12 | $2,559.50 | $2,815.45 |
| N015 | 01/02/12 to 29/02/12 | 05/02/12 | $2,559.50 | $2,815.45 |
| N014 | 01/01/12 to 31/01/12 | 12/01/12 | $2,559.50 | $2,815.45 |
| N013 | 01/12/11 to 31/12/11 | 12/12/11 | $2,559.50 | $2,815.45 |
| N012 | 01/11/11 to 30/11/11 | 09/11/11 | $2,559.50 | $2,815.45 |
| N011 | 01/10/11 to 31/10/11 | 11/10/11 | $2,559.50 | $2,815.45 |
| N010 | 01/09/11 to 30/09/11 | 01/09/11 | $2,559.50 | $2,815.45 |
| N009 | 01/08/11 to 31/08/11 | On or before 01/09/11 | $2,559.50 | $2,815.45 |
| N008 | 01/07/11 to 31/07/11 | 29/06/11 | $2,559.50 | $2,815.45 |
| Total Payments made during the Noncompliance Period | $253,276.98 | |||
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
SVH
Associate
30 MARCH 2021
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