Wayland v Tonkin - [2003] HCATrans 297

[2003] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A235 of 2002

B e t w e e n -
ELLIS BRYSON JOHN WAYLAND
Applicant
and
WALTER REGINALD TONKIN
Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 12.01 PM

MR J.W.K. BURNSIDE, QC: May it please the Court, I appear with my learned friend, MR M.B. MANETTA, for the applicant. (instructed by Black Cleland)

MR P.A. McNAMARA, QC: May it please the Court, I appear for the respondent. (instructed by David Deakin Davies & Associates)

GLEESON CJ: Yes, Mr Burnside.

MR BURNSIDE: Your Honours, the Full Court refused to extend time within which an appeal could be brought and it is difficult to understand precisely the basis on which they did it.

GLEESON CJ: I thought they did it on the basis that there was no proper explanation for the delay and there was no merit in the proposed appeal.

MR BURNSIDE: They seem to be two independent bases, which, in our submission, is the wrong way to approach it. The Chief Justice delivered reasons, with which Justice Perry agreed, and that must be taken as the majority reason for the court’s decision. The Chief Justice said that he did not think there was a sufficient explanation of the delay of two months and that accordingly time should not be extended and he then went on to consider the merits as if it were an independent basis on which leave should be refused. In our submission, that approach is not the approach which should be adopted and it is not the approach which this Court has identified in Jackamarra v Krakouer.

Can I make that point good by taking your Honours to paragraph 35 at application book page 56, “has offered no adequate explanation”, and then paragraph 37:

I am not satisfied that this is a proper case in which to grant an extension of time . . . having regard to the substantial delay in filing . . . and in setting down the appeal once that had been done.

An explanation was offered. His Honour said that it was unpersuasive, although it is difficult, with respect, to see why that is so. The time involved was two months, which is not, in our submission, a very substantial time in light of the explanation that was proffered. But the point is that his Honour decides at paragraph 37 that this is not a proper case in which to grant an extension and he then goes on to decide that there is no merit in the appeal but does so by reference to only one of the grounds. He does identify each of the three grounds but discusses in detail only one of the grounds, and that discussion begins at paragraph 47 at application book page 58.

In our…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Wayland v Tonkin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] HCATrans 297
Decision Date

CaseChat Overview and Summary

In *Wayland v Tonkin*, the High Court of Australia considered a dispute between the appellant, Wayland, and the respondent, Tonkin. The case concerned the interpretation and application of certain provisions within the *Corporations Act 2001* (Cth) and the common law principles relating to the recovery of money paid under a mistake.

The central legal issues before the High Court were whether the respondent was entitled to recover money paid to the appellant under a mistake of fact, and if so, whether the appellant had a defence to such a claim. Specifically, the court had to determine the scope of the defence of change of position, which can operate to defeat a claim for money had and received.

The High Court held that the respondent was entitled to recover the money paid under a mistake. The court affirmed the established principle that money paid under a mistake of fact is recoverable, subject to certain defences. In this instance, the court found that the appellant had not established the defence of change of position. The reasoning focused on the fact that the appellant's actions, which were relied upon as constituting a change of position, were not undertaken in reliance on the mistaken payment in a way that would make it inequitable to require repayment. The court emphasised that the defence requires a genuine alteration of the recipient's position in consequence of the payment, such that it would be unjust to restore the status quo.

The High Court ordered that the appeal be dismissed.

Orders