Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 Hearing dates: 5 May 2021 Decision date: 21 July 2021 Before: Bathurst CJ at [1]; Leeming JA at [79]; Emmett AJA at [106] Decision: (1) Appeal allowed in part. (2) Set aside Order 1 of the orders made by the primary judge and in lieu thereof enter judgment for the plaintiff against the defendant in the sum of $126,097.13. (3) Order the appellant pay the respondent's costs of the appeal. Catchwords: APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – where there is a common law cause of action for money had and received APPEALS – right of appeal – scope of right – excess or lack of jurisdiction below – jurisdiction of the District Court – whether proceeding is for "relief against fraud of mistake" – District Court Act 1973 (NSW), s 134 CONTRACTS – breach of contract – consequences of breach – right to damages – where total failure of consideration CONTRACTS – termination – consequences of termination – restitutionary claims – where total failure of consideration JUDGMENTS AND ORDERS – interest – pre-judgment interest – rate applicable – where respondent succeeded on restitutionary claim – whether it was open to the primary judge to select the same rate of interest agreed to by the parties – Civil Procedure Act 2005 (NSW), s 100 Legislation Cited: Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) District Courts Act 1858 (NSW) Law Reform (Law and Equity) Act 1972 (NSW) Cases Cited: Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614; [2001] NSWCA 440 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157 Lane v Great Northern Developments (District Court (NSW), Strathdee J, 16 February 2021, unrep Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32 McCarthy v Federal Commissioner of Taxation (2013) 249 FCR 140; [2013] FCA 715 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 Moses v Macferlan (1760) 2 Burr 1005 Nocton v Lord Ashburton [1914] AC 932 Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491 Re Culleton [2017] HCA 3; 91 ALJR 302 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 Svanosio v McNamara (1956) 96 CLR 186; [1956] HCA 55 Texts Cited: J D Heydon, Heydon on Contract (2019, Thomson Reuters) W Gummow, "Moses v Macferlan: 250 years on" (2010) 84 ALJ 756 Category: Principal judgment Parties: Great Northern Developments Pty Ltd (Appellant) Dael Lane (Respondent) Representation: Counsel: S P Brennan (Appellant) E Peden SC with D J Townsend (Respondent) Solicitors: Christopher M Edwards (Appellant) McLean & Associates Solicitors (Respondent) File Number(s): 2021/62170 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Nil Date of Decision: 16 February 2021 Before: Strathdee J File Number(s): 2019/175974 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The proceedings the subject of this appeal arose out of a failed investment proposal recommended to the respondent, Ms Dael Lane (the respondent), by solicitor Mr Christopher Edwards in his capacity as a director of the appellant, Great Northern Developments Pty Ltd (GND). GND appealed from a judgment of a judge of the District Court ordering GND to pay the respondent the sum of $173.341.47. The proposal was that the respondent invest in a development project in Queensland. The basis of the proposal was that the respondent would advance money to the developer of a home unit development to assist it in proceeding with the development, in return for which the respondent would be given the opportunity to purchase a unit in the development at a discounted price. To give effect to the proposal, a Deed was entered into between GND and the respondent (the Deed) in which GND agreed to procure a Preferred Investor Agreement (PIA) between the respondent and the developer, Arden Management Group Pty Ltd (Arden). The Deed provided that the list price for the unit would not exceed $919,000 (the Purchase Price). The respondent would pay 70 per cent of the Purchase Price, being $643,300 (the Investment Amount), into GND's bank account on execution of the Deed. The Deed also provided that if the PIA was not entered into within 180 days, the respondent had the option to require the return of the Investment Amount, repayable within 90 days of notification together with 8 per cent per annum interest. The Deed required GND to procure a PIA "similar to the attached and marked 'Annexure 1'". The PIA annexed to the Deed obliged the respondent to pay the Investment Amount as defined as $643,300 within 14 days of signing the PIA. It also gave the respondent an option to purchase the "Lot", described as Lot 1607, the Purchase Price of which was defined as $919,000. On 23 June 2014, the respondent paid $643,300 into GND's bank account. The respondent signed two PIAs in December 2014. Both provided for the same Investment Amount as set out in the Deed and the PIA annexed to the Deed, being $643,300, whilst the Lot had changed to Lot 4620. The respondent gave evidence that Mr Edwards told her that Lot 4620 was a better lot than Lot 1607. In early 2016, the respondent travelled to Brisbane to see the unit and meet Mr Derek McCartney of Arden. She asked to see a copy of the PIA that Arden was holding. Mr McCartney produced a PIA apparently executed by the respondent and Arden (the 2015 PIA). Although the 2015 PIA referred to the same unit as the one referred to in the PIAs signed by the respondent in December 2014, the Investment Amount was defined as $561,000 and the Purchase Price had increased to $935,000. The respondent claimed that she did not execute a document in that form. Following negotiations with Arden, the respondent entered into a Deed of Termination with Arden and received the sum of $561,000 plus interest, despite having paid GND $643,300. GND claimed it was entitled to retain the remaining $82,300 as commission for procuring the transaction. The substantive issue before the Court in this appeal was whether the respondent was entitled to recover the amount claimed as damages for breach of contract or on a restitutionary basis, there being a total failure of consideration. The appeal raised a number of additional issues, including whether the District Court lacked jurisdiction to determine the matter at first instance. The Court allowed the appeal in part, setting aside the order of the primary judge that GND pay the respondent $173,341.47 and in lieu thereof enter judgment for the respondent against GND in the sum of $126,097.13. The Court also ordered GND to pay the respondent's costs of the appeal. The jurisdictional ground i) An action to recover money on the basis of a total failure of consideration is a common law cause of action for money had and received. To that extent, it is an action that the District Court has jurisdiction to determine: [45] (Bathurst CJ); [100], [105] (Leeming JA); [119] (Emmett AJA). Moses v Macferlan (1760) 2 Burr 1005; Roxburgh v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68; Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32, referred to. ii) Consideration of the application of s 134 of the District Court Act 1973 (NSW) and the equitable jurisdiction of the District Court and whether the respondent's action was a proceeding for "relief against fraud or mistake" within s 134(1)(c): [79]-[105] (Leeming JA). Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9; Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614; [2001] NSWCA 440; Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157; McCarthy v Federal Commissioner of Taxation (2013) 249 FCR 140; [2013] FCA 715; Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81, referred to. The contract claim i) There is no basis for GND to retain the $82,300 as a commission: [68] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). ii) A recital to a Deed is not part of the operative provisions, but can be relied on as background and as an aid to construction: [66] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 604; [2009] NSWCA 407, referred to. iii) The respondent is entitled to recover on the basis that there was a total failure of consideration: [70] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32, referred to. The restitutionary claim i) GND has been unjustly enriched by its retention of the amount of $82,300 and is liable to pay that amount to the respondent: [75] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). ii) The notion of total failure for consideration looks to the benefit bargained for by the plaintiff rather than any benefit received in fact: [74] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48, referred to. Interest i) It was open to the primary judge to select the same rate of interest agreed to by the parties in the event that a PIA was not obtained as the appropriate rate of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW): [76] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). ii) The respondent succeeded on the restitutionary claim such that interest should only be payable on the $82,300 to which the respondent is entitled by way of restitutionary relief: [77] (Bathurst CJ); [105] (Leeming JA); [119] (Emmett JA). Judgment 1. BATHURST CJ: This is an appeal from a judgment of a judge of the District Court ordering the appellant, Great Northern Developments Pty Ltd (GND) to pay to the respondent, Dael Lane (the respondent) the sum of $173,341.47. 2. The proceedings arose out of a failed investment proposal recommended to the respondent by solicitor Mr Christopher Edwards in his capacity as a director of GND. 3. The proposal was that the respondent invest in a development project in Queensland. The basis of the proposal was that the respondent would advance money to the developer of a home unit development in Queensland to assist it in proceeding with the development, in return for which the respondent would be given the opportunity to purchase a unit in the development at a discounted price. 4. To give effect to the proposal, a Deed was entered into between GND and the respondent (the Deed) in which GND agreed to procure a Preferred Investor Agreement (PIA) between the respondent and the developer, Arden Management Group Pty Ltd (Arden). 5. The Deed, which was dated 23 June 2014, contained the following recital: "BACKGROUND GND ls a former joint venture partner with Moonbrook Pty Ltd which undertook the Surfair Development. The Director of Moonbrook Pty Ltd is Derek William McCartney (Derek) to whom is the sole Director of Arden Management Group Pty Ltd (ACN 130 077 604) as trustee for the AMG Trust. Derek has agreed to pay GND procurement fee to GND to allow business associates of GND to partake in a Preferred Investor Agreement with Arden Management Group Pty Ltd. Dael is a business associate and has agreed to enter into a Preferred Investor Agreement with Arden Management Group Pty Ltd under the following terms and conditions." 1. Clause 1 of the Deed required GND to procure a PIA "similar to the attached and marked 'Annexure A'". 2. Clause 2 provided that the PIA "will detail" the residential unit, being Unit 1607 in the Sage Building in the Jade Development located at 35 Burdett Street, Albion. 3. The Deed stated in cl 3 that the list price for the unit would not exceed $919,000, whilst cl 4 stated that the respondent would pay 70 per cent of the purchase price, being $643,300 (the Investment Amount) on execution of the Deed. The amount was required to be paid into GND's bank account. 4. The Deed also provided that if the PIA was not entered into within 180 days, the respondent had the option to require the return of the Investment Amount, repayable within 90 days of notification together with the equivalent of 8 per cent per annum interest. 5. Clause 7 of the Deed provided that GND is "solely responsible to account to the Developer for the Investment Amount". 6. The PIA annexed to the Deed stated the parties to be Arden (the Developer), the respondent (the Investor) and Mr Derek McCartney (Mr McCartney). 7. Clause 2 of the PIA obliged the respondent to pay the Investment Amount defined as $643,300 within 14 days of signing the PIA by depositing cleared funds to a bank account nominated by Arden and which Arden agreed to use for the purposes of meeting development costs. 8. Clause 3 obliged Arden to pay interest on the Investment Amount from the day it was received by Arden until the "Cash Return" was repaid. The Cash Return is defined as the Investment Amount ($643,300) plus any "Interest". Interest was defined as 15 per cent per annum. 9. Clause 4 gave the respondent an option to purchase the "Lot" in accordance with cl 5.2. The Lot was described as Lot 1607. 10. Clause 5 set out the principal rights and obligations of the parties. It was in the following terms: "5 REPAYMENT AND OPTION TO PURCHASE 5.1 Developer to notify Practical Completion Not later than 45 days after Practical Completion of the Stage in which the Lot is located, the Developer shall give Notice to the Investor that Practical Completion has occurred (Completion Notice). 5.2 Repayment Option Upon receipt of the Completion Notice, the Investor must within 14 days (Election Date) elect by notice in writing to the Developer (Election Notice), to either: (a) require the Cash Return to be paid; or (b) purchase the Lot in accordance with clause 5.4. 5.3 Repayment of Cash Return (a) If the Investor elects to be paid the Cash Return in accordance with the Election Notice, the Developer must pay the Cash Return in full within 30 days of the Election Date (Maturity Date). (b) Upon payment of the Cash Return by the Developer, [the PIA] shall be at an end. 5.4 Investor's Option to Purchase (a) If the Investor elects to purchase the Lot in accordance with the Election Notice, the following provisions apply: (i) The Developer and the Investor must enter into the Contract within seven (7) business days from the Election Date; (ii) The Contract must be on the following terms: (A) Seller: the Developer; (B) Buyer: the Investor or a nominee of the Investor; (C) Purchase Price: The Purchase Price as set out in the Definitions; (D) Special Conditions: The Contract must contain the following special conditions: (1) The payment of the Rebate by the Developer as seller, to the Investor as buyer; (2) A waiver by the Investor, of the right to be repaid the Cash Return under [the PIA]; (3) An acknowledgement by the Investor and the Developer that the payment of the Investment Amount by the Developer is to offset the Net Settlement Amount to be paid under the Contract by the Investor (or its nominee, where applicable) as buyer to the Developer as seller. (E) Other Conditions: (1) The Developer and the Investor may negotiate and mutually agree on any other terms to be contained within the Contract.; and (2) The Contract in all other respects must be unconditional and on terms commercially standard for residential contracts of this nature. (b) Once the Investor has elected to purchase the Lot in accordance with clause 5.4(a), [the PIA] shall be at an end." 1. It should be noted that the Purchase Price stated in the Definition section was $919,000. 2. Clause 6 relevantly provided that if practical completion of the development is not achieved within three and a half years from the date of the PIA (the Sunset Date) then Arden would pay the cash return to the respondent within 14 days. 3. By cl 7, Mr McCartney guaranteed Arden's obligations under the PIA. 4. On 23 June 2014, the respondent paid $643,300 into GND's bank account. 5. The respondent appeared to have signed two PIA's in December 2014. The first provided for the same Investment Amount. The defined amount of $643,00 was conceded by Mr Edwards to be a typographical error, it should have read $643,300, whilst the Lot the subject of the option had changed to Lot 4620. In an affidavit filed in the proceedings, the respondent stated that Mr Edwards told her that Lot 4620 was a better lot. 6. The respondent signed a further PIA in December 2014. The Lot was more fully described as Lot 4620, Lotus, 35 Burdett Street, Albion. The Sunset Date was extended to five and a half years. The PIA was otherwise identical to the draft. 7. The respondent gave evidence that in early 2016 she travelled to Brisbane to see the unit and meet Mr McCartney. She asked to see a copy of the PIA that Arden was holding. Mr McCartney produced a PIA apparently executed by the respondent and Arden. The PIA (the 2015 PIA) was undated. However, there was evidence to show that it was executed by Arden between May and July 2015. Although the PIA referred to the same unit as the one referred to in the PIA signed by the respondent in December 2014, the Investment Amount was said defined as $561,000 and the Purchase Price had increased to $935,000. 8. The respondent claimed that she did not execute a document in that form. Following negotiations with Arden, the respondent entered into a Deed of Termination with that company and received the sum of $561,000 together with interest. 9. The Deed of Termination recited that the parties Arden, the respondent and Mr McCartney had entered into a PIA in respect of Lot 4620 on or around 14 May 2015 and the respondent provided $561,000 pursuant to the PIA. The Deed stated that Arden agreed to pay the respondent $721,553 in full and final payment of all amounts owing under the PIA. It is not clear how the amount was calculated, as interest for the period that Arden had the funds at the rate of 15 per cent seems to amount to $133,717, thus making a total amount payable of $694,713. However, no point was taken on the matter during the hearing. The primary judgment 1. The primary judge set out the facts which I have summarised above (Lane v Great Northern Developments (District Court (NSW), Strathdee J, 16 February 2021, unrep). Her Honour noted that if the respondent had not seen the executed PIA or sought to have withdrawn from it, she may never have become aware that GND did not forward the whole $643,300 to Arden. 2. The primary judge noted that it was accepted by both parties that the respondent sought the return of $82,300 plus interest from GND, claiming that GND breached the Deed in two material respects. First, by failing to account to Arden for the whole of the $643,300 and second, by the creation of a PIA which was presented to Arden with an Investment Amount of $561,000. 3. The primary judge noted at [48] that GND claimed it did account for the Deed Investment Amount by way of "$561,000 plus commission for work done in processing the [respondent's] investment". Her Honour noted GND's submission that if the respondent was dissatisfied with the amount she received in return, that was a matter between her and Arden. 4. The primary judge stated that in May or July 2015, Mr McCartney as a director of Arden executed a PIA in the form of the 2015 PIA. Her Honour noted that the respondent's position was that she did not execute a PIA in the form of the 2015 PIA. 5. The primary judge also noted that GND's case was that it did not become aware of the 2015 PIA until July 2017. Further, GND denied that the 2015 PIA was not in accordance with Annexure A to the Deed. 6. The primary judge stated that the principal question in the proceedings was whether GND was liable to return $82,300 of the respondent's money. Her Honour stated at [57] that integral to that question was the meaning and interpretation of the words "GND is solely responsible to account to the Developer for the Investment Amount" contained in cl 7 of the Deed. 7. The primary judge noted at [69]-[71] that GND's claim that it was entitled to retain the $82,300 as commission was based on the recital in the Deed, particularly the words "Derek has agreed to pay GND procurement fee to GND [sic] to allow business associates of GND to partake in a Preferred Investor Agreement". 8. The primary judge stated that the recital to the Deed did not constitute a term of the agreement. Her Honour accepted that it was relevant as background to the interpretation of cl 7 but stated that it did not confer any rights or obligations. Her Honour said that even if it did, it was not clear that the respondent was responsible for paying the procurement fee. Her Honour stated that she could not interpret cl 7 of the Deed as doing anything other than obliging GND to pay the whole of the $643,300 to Arden. 9. The primary judge rejected the reliance by GND on emails passing between it and the respondent in August and September 2015, in which the respondent referred to GND receiving commissions from Arden of at least $30,000 and then $91,900. Her Honour stated that they were inadmissible as an aid to construction, and even if they were admissible, they only showed that the respondent may have been aware that GND received commission, not that it was to be paid out of funds supplied by the respondent. Her Honour also rejected reliance by GND on the Deed of Termination between the respondent and Arden as an aid to construction. 10. In dealing with the issue of whether in fact only $561,000 was paid to Arden, the primary judge said that this was established by the documentary and oral evidence. Her Honour referred in particular to the following extract from the cross-examination of Mr Edwards: "Q. Do you agree with me that GND has only ever paid [$]561,000 to Arden for Ms Lane's apartment? A. In - in cash, but certainly it's paid more in kind as well. Q. You agree with me that the only cash that has gone is [$]561[,000]? A. Yes." 1. Although her Honour concluded that GND's breach of cl 7 of the Deed gave rise to a right to recover the $82,300 plus interest, she went on to consider the provisions of the 2015 PIA. Her Honour stated that even if the respondent signed a PIA agreeing to invest $561,000, GND was still obliged to account to Arden for the $643,300. 2. However, the primary judge stated that even if the 2015 PIA was the final agreement, GND was in breach of cl 3 of the Deed which stated that the list price for the unit would not exceed $919,000. Her Honour noted the respondent's evidence that she believed the second of the December PIA's was the final one executed and her denial that she signed the 2015 PIA. 3. The primary judge noted that GND pleaded in its defence that it could not plead to the allegation in the 2015 PIA. Her Honour noted at [101] the affidavit evidence of Mr Edwards that he first learnt of the different PIA on 17 July 2017. The primary judge stated that this was inconsistent with Mr Edward's cross-examination to the effect that he had electronic copies of the PIA's and would make adjustments when appropriate. Her Honour also referred at [102] to his admission in cross-examination that he prepared the 2015 PIA. 4. The primary judge also noted that in answer to a notice to produce on 29 September 2020, GND produced a version of the PIA signed by the respondent and witnessed by Mr Edwards which stated that the Investment Amount was $643,300 and the Lot was Lot 4620, Loftus, 25 Burdett Street, Albion, the Purchase Price being $919,000. Her Honour noted that Mr Edwards agreed that the signature on this version was the same as that on the executed 2015 PIA. The primary judge stated that it was plain that the signatures were identical and noted that Mr Edwards agreed that the signature on that version of the PIA produced by him was not the same as the signatures on the other versions of the PIA, except for the 2015 PIA. 5. Although the primary judge stated that it was unnecessary to make a finding of fraud, her Honour stated that it seemed highly unlikely that the defendant had no knowledge of the 2015 PIA or the figures contained in it. The primary judge reached the following conclusion: "[107] The basis of the Deed was for [GND] to procure, on the [respondent's] behalf, an agreement with Arden. [GND's] initial denial, through Mr Edwards, of having any knowledge of the final agreement reached between the [respondent] and Arden is also difficult to believe in the context of the terms contained in the Deed. In order for its obligations to be fulfilled under the Deed [GND] was required to procure a PIA between the [respondent] and Arden which necessitates [GND] would have or ought to have been aware of the final PIA executed by the [respondent] and Arden. I cannot see how [GND] could have been content to have no knowledge of the agreement reached between the [respondent] and Arden down to the specific figures contained therein, as the Deed itself imposes obligations on [GND] to procure an agreement with specific figures such as a purchase price not exceeding $919,000 (Clause 3), a particular development (Clause 2) and in a specific form (Clause 1)." 1. So far as interest was concerned, the primary judge noted that the respondent claimed interest on the amount of $82,300 from 13 July 2015 to the date of judgment at the rate of 8 per cent, and interest on $643,300 between 12 December 2014 and 13 July 2015 also at the rate of 8 per cent. Her Honour accepted that the respondent was entitled to these amounts. The appeal 1. In its notice of appeal GND relied on 22 grounds of appeal. In essence, they raised the following issues. 1. First, a jurisdictional issue (ground 2). Essentially, it was contended that a finding for the respondent "on the basis of unjust enrichment" constituted an equitable remedy beyond the jurisdictional limit of the District Court to grant equitable relief. 2. Second, ground 3 challenged the finding of the primary judge that in May or July 2015 Mr McCartney executed a PIA with the respondent. This ground is unusual as it appears that the only PIA executed by Arden was the 2015 PIA. To the extent that her Honour's finding as to the date of execution is challenged, the Deed of Termination recited that the 2015 PIA was entered into on or around 14 May 2015, whilst the internal records of GND show that payments were made by GND to Arden in respect of that PIA between 15 May and 13 July 2015. The inference that the 2015 PIA was executed by Arden between May and July 2015 was thus open to the primary judge. It should, however, be noted that counsel for GND expressly eschewed any reliance on the 2015 PIA, stating that so far as it purports to bear the signature of the respondent it was a fraud or mistake, apparently accepting the respondent's evidence that she did not sign it. 3. Third, the notice of appeal challenged the finding by the primary judge that GND was required to transfer to Arden the whole of the $643,300 deposited by the respondent to Arden, saying it was entitled to hold back the $82,300 as a commission (grounds 4-9, 17-20). 4. Fourth, the grounds of appeal challenged certain evidentiary rulings concerning cross-examination of the motivation of the respondent in entering into the Deed of Termination (grounds 10-13). 5. Fifth, and related to the fourth issue, the primary judge erred in determining the amount of loss by reference to the Deed of Termination without making a finding of the effect or purpose of that Deed (ground 14). 6. Sixth, it was contended that the primary judge failed to articulate the legal basis for her conclusion (ground 16). 7. Seventh, the grounds of appeal challenge the award of interest. 1. The respondent was granted leave at the hearing to file a notice of contention contending that if the respondent was not entitled to the $82,300 by way of contractual damages, the primary judge ought to have found that the respondent was entitled to the money by way of unjust enrichment. 2. The substantive issues in the appeal can thus be seen to be whether the respondent was entitled to recover the amount claimed as damages for breach of contract or on a restitutionary basis, there being a total failure of consideration. Prior to dealing with these grounds it is convenient to deal with a number of the other issues raised by the appeal. First, the jurisdiction of the District Court to grant relief, second, the complaint that the primary judge failed to state the legal basis for her conclusions and third, the complaint concerning the rejection of evidence. The jurisdictional ground 1. GND submitted that the District Court had no jurisdiction to grant equitable relief as its equitable jurisdiction was confined to matters involving amounts of less than $20,000 (District Court Act 1973 (NSW) s 134). 2. The difficulty with this submission is that an action to recover money on the basis of a total failure of consideration is a common law cause of action for money had and received. That has been established since at least from the time of the judgment of Lord Mansfield in Moses v Macferlan (1760) 2 Burr 1005 (see the discussion by Gummow J in Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 at [90]-[100], particularly [96] and [98]; see also Gleeson CJ, Gaudron and Hayne JJ at [15]; Mann v Paterson Constructions Pty Limited (2019) 267 CLR 560; [2019] HCA 32 ("Mann v Paterson") at [81]-[82] and [91] per Gageler J, and [168] per Nettle, Gordon and Edelman JJ; W Gummow, "Moses v Macferlan: 250 years on" (2010) 84 ALJ 756). 3. It follows that the District Court had jurisdiction to determine the respondent's claim to the extent it could be characterised as a claim for money had and received based upon a total failure of consideration. 4. It was contended in GND's written submissions, although not directly raised by the notice of appeal, that the claim could not be characterised as a common money count so as "to attract an unjust enrichment remedy without fraud or mistake". It was also submitted that fraud or mistake was not pleaded. 5. As I indicated, a basis for the restitutionary claim was that there was a total failure of consideration. Paragraphs 15-18 of the statement of claim pleaded a restitutionary claim based on GND receiving the sum of $82,300 for its own use. Further, the respondent's outline of submissions in the Court below expressly stated that GND was obliged to return the money as money had and received. 6. It follows that this ground of appeal has not been made out. The failure by the primary judge to state the legal basis for her conclusion 1. This ground has no merit. It is clear that the primary judge found that GND retained the sum of $82,300 in breach of its obligation under the Deed. That is clear from the following passage of her Honour's judgment: "[96] Ultimately, the agreement that the [respondent] reached with Arden is irrelevant to the question of whether [GND] fulfilled its obligations contained in Clause 7 of the Deed. Even if the [respondent] signed a PIA agreeing to an [sic] invest $561,000 into Arden's development, [GND] was still obliged under the Deed to account to Arden for the Investment Amount, defined as $643,300 in the Deed. If [GND] had accounted to Arden $643,300 in circumstances where Arden and the [respondent] had agreed on an investment of $561,000, it would have fulfilled its contractual obligation and it would be an issue between Arden and the [respondent] as to the remaining $82,300. [GND] was not obliged, nor authorised in any reading of the Deed, to retain $82,300 of the [respondent's] money, whether it was retained as part of [GND's] commission or not." 1. The primary judge subsequently made the remarks to which I have referred at [39] above. 2. It seems to me clear that the primary judge found the retention of the $82,300 constituted a breach by GND of its obligations under the Deed, and even if the 2015 PIA was entered into by the parties, it was not in conformity with the provisions of the Deed and, in particular, the requirement that the list price for the unit would not exceed $919,000. It should be noted on the appeal that no reliance was placed by GND on the 2015 PIA as demonstrating that GND had complied with its obligations under the Deed. 3. It follows that the primary judge set out the legal basis for her conclusion. The rejection of evidence 1. The complaint involved rejection of evidence concerning the purpose of the respondent in entering into the Deed of Termination with Arden. Allied to the grounds in respect of this complaint is ground 15 of the grounds of appeal, which contends that the primary judge erred in determining the amount of loss by reference to the Deed of Termination without making a finding of the effect or purpose of that Deed. 2. Counsel for GND identified a number of rejected questions which he said were an example of those in respect of which complaint was made. It is convenient to set out these questions and the objections taken to them: "Q. After you signed this document, which was the last one you signed, you have said in your evidence that you spoke to Derek McCartney, and were shown the document which you put in your evidence at 107 to 114, 115. Is that right; the one that he showed you of the 561 [sic]. A. Yes. Q. He showed you that in about January 2016, or early 2016? A. Early February. Q. Okay. Did you get a copy of it at that time? A. Yes. Q. It would've been apparent, wouldn't it, that the amount said to be the investment amount, was different to the one you know you signed? A. Yes. Q. Did you have a discussions I think [sic] Derek McCartney about that? PEDEN: I object, your Honour. It's not relevant. There are facts as to what happened. What my client understood, what she believed is completely irrelevant. The conversation she had is completely irrelevant. HER HONOUR: Yes, I agree. BRENNAN Q. Did it cause you any distress to see that the figures varied? PEDEN: I object, your Honour; relevance. HER HONOUR: Yes; no it's irrelevant. BRENNAN Q. You do say in your evidence that that one, in other words, were 'It was not any version of the document that I had signed'. You say that in your evidence, don't you? A. Yes. Q. Does your evidence say that you contacted Christopher Edwards to ask about it? PEDEN: I object, your Honour. It's irrelevant. HER HONOUR: Exactly. BRENNAN Q. Does your evidence say that you did anything else to try and resolve the differences-- PEDEN: I object, your Honour. HER HONOUR: Yes. Relevance, irrelevant. BRENNAN Q. About six months later-- HER HONOUR: Later from when? BRENNAN Q. When she got the copy from Derek McCarthy. About six months later - McCartney it is; you told McCartney you wished to terminate the PIA. Did you? A. It wasn't six months. Q. Well, was it July 2016? A. Yes. Q. You told him you wanted to terminate it? A. Yes. Q. And your evidence is that he told you the investment return would be based on [$]561,000 in accordance with his document? A. His document? Q. Yes. A. Yes. Q. Did you agree with him? PEDEN: I object, your Honour. It's irrelevant. HER HONOUR: Yes. It is irrelevant. BRENNAN Q. Did you disagree with him? PEDEN: I object, your Honour. HER HONOUR: It's irrelevant. Mr Brennan, please. BRENNAN Q. Did you do anything at all to seek to understand that document?" 1. Counsel for GND submitted that the questions were relevant to test whether or not the 2015 PIA was productive of loss and "whether it was a document that [the respondent] was prepared to adopt in any form". 2. It seems to me that having regard to the respondent's denial that she executed the 2015 PIA, the circumstances surrounding the execution of the Deed of Termination may have been relevant in testing her evidence on that point and to test her statement that until she met Mr McCartney she did not know of the existence of the 2015 PIA. However, in light of counsel for GND's acceptance on the appeal that the respondent did not execute the 2015 PIA, it is difficult to see how disallowing the evidence had any effect on the outcome of the proceedings. 3. As I indicated, the complaint regarding the rejection of evidence is aligned to the matters complained of in ground 15, namely, that the primary judge erred in determining the amount of loss without reference to the effect and purpose of the Deed of Termination. 4. The scope and purpose of the Deed of Termination is self-evident. It contains mutual releases of any obligations either party had under the 2015 PIA in consideration of the payment by Arden to the respondent of $721,553. Although the amount was significantly in excess of the $561,000 referred to in the 2015 PIA, which was referred to in recital (b) of the Deed of Termination, it was not pleaded that the respondent accepted the money received by her as a result of the execution of the Deed of Termination in satisfaction of any claim she might have had against GND, or that in doing so she waived any right she had against GND for failing to procure a PIA in the agreed terms or for the return of the sum of $82,300. 5. In these circumstances, I do not think her Honour erred in rejecting the evidence or failing to make further findings on the scope and purpose of the Deed of Termination. The contract claim 1. The contract claim as pleaded contained two allegations of breach. First, the 2015 PIA nominated a list price for the unit as $935,000, not $919,000 as required by the Deed, and second, the failure to pay the entire Investment Amount to Arden and the retention of $82,300. 2. Having regard to the reasoning of the primary judge, it seems that this was the basis on which the case was conducted at the trial. In particular, no reliance was placed on cll 5 and 6 of the Deed which entitled the respondent to demand repayment of the Investment Amount with interest at 8 per cent if the PIA was not procured within 180 days. It was not suggested that the respondent's damages should be limited to the difference between the sum of $721,553 received from Arden and $643,300 together with interest at 8 per cent from 23 June 2014 to 28 May 2017, the date on which the respondent received the payment under the Deed of Termination. As neither party argued either in the Court below or on the appeal that this was the appropriate means of assessing damages, the matter need not be pursued any further. 3. GND claimed it was entitled to retain the funds as commission for procuring the transaction. The first problem with this submission is that there is no basis for any claim to commission when a PIA was not entered into. 4. The second difficulty is that the Deed makes no provision for the payment of commission. GND relied on the use of the word "account" in cl 7 of the Deed, submitting that it only required GND to pay $643,300 less commission which it asserted amounted to the sum of $82,300. It should be noted that Mr Edwards did not suggest in his evidence any entitlement to a commission from Arden in that amount. 5. It seems to me that the contention that GND was entitled to a commission of $82,300 is untenable. It is contrary to the plain words of cl 7 of the Deed and is not supported by the context in which the agreement was entered into, namely, as a result of advice given to the respondent by a financial adviser which subsequently entered into a Deed with her. In these circumstances, it would be expected the right to commission would be clearly disclosed, not buried in the word "account". Further, the draft PIA annexed to the Deed stated that the Investment Amount to be paid to the developer was $643,300. 6. The respondent relied on the recital to the Deed. Whilst the recital is not part of the operative provisions, it can be relied on as background and as an aid to construction: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 at [29] per Allsop P, and [379]-[380] per Campbell JA; J D Heydon, Heydon on Contract (2019, Thomson Reuters) at par 8.1480. 7. The recital states that Mr McCartney had agreed to pay GND a procurement fee. It did not suggest the procurement fee would effectively be paid by the respondent by deduction from the Investment Amount. 8. In these circumstances, there was no basis for GND to retain the $82,300. 9. However, there is difficulty in assessing damages having regard to the manner in which the case was conducted. The loss alleged was, first, the difference in the nominated list price in the 2015 PIA compared to the PIA annexed to the Deed. The second was the failure to pay the whole of the $643,300 to Arden. There was no evidence whether Arden would have been willing to enter into a PIA at the nominated amount of $919,000, nor what would have occurred had the whole $643,300 been paid to Arden. 10. Nevertheless, it was not contended by GND either at trial or at the hearing of the appeal that the contractual damages would have been less than the respondent was entitled to recover on a restitutionary claim. In these circumstances, the respondent is entitled to recover on the basis that there was a total failure of consideration: Mann v Paterson at [84]-[86] and [91] per Gageler J, and at [215] per Nettle, Gordon and Edelman JJ. The restitutionary claim 1. In its written submissions, the respondent contended that as a PIA was not executed in accordance with the Deed, there was a total failure of consideration and GND was required to refund the money which was paid to it in contemplation of the performance of its obligations. She contended that having regard to the fact that there was recovery of $561,000 plus interest from Arden, GND was only liable in the sum of $82,300 plus interest retained by it. 2. GND in its written submissions contended, first, that the respondent freely chose to enter into a PIA similar to the one annexed to the Deed and second, by her conduct consented to a variation of the PIA. However, the first of these submissions is inconsistent with the concession that the respondent did not enter into the 2015 PIA, whilst the conduct of the respondent in entering into the Deed of Termination did not constitute a variation of the Deed between her and GND as distinct from recovering money which was wrongly paid to Arden. 3. GND's obligation under the Deed was to procure a PIA in the terms of that annexed to the Deed or at least in the terms of the December PIAs. There is no evidence that Arden ever entered into such a PIA. The only PIA executed by Arden was the 2015 PIA, which GND conceded was not entered into by the respondent. It follows that GND did not fulfil its obligations under cl 1 of the Deed. 4. The obtaining of the PIA was the basis of or reason for the payment: Mann v Paterson at [168] per Nettle, Gordon and Edelman JJ. The fact that the PIA was not obtained meant that the consideration wholly failed. It is irrelevant that in settling with Arden the respondent received a return on the funds invested. As was stated by Mason CJ in Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 at 351 (citing David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at 381-383), the notion of total failure of consideration looks to the benefit bargained for by the plaintiff rather than any benefit received in fact. 5. In these circumstances, GND has been unjustly enriched by its retention of the amount of $82,300 and is liable to pay that amount to the respondent. Interest 1. GND complains that the primary judge ordered interest at the rate of 8 per cent rather than in accordance with s 100 of the Civil Procedure Act 2005 (NSW). While the parties had not agreed on a rate of interest in the circumstances of this case, they had agreed on interest at 8 per cent if a PIA was not obtained, and the selection of the same rate as the appropriate rate of interest pursuant to s 100 of the Civil Procedure Act was well open to the primary judge. 2. However, having regard to the fact that the respondent succeeded on the restitutionary claim, in my opinion the interest should only be payable on the $82,300 to which the respondent was entitled by way of restitutionary relief. Interest on that amount should run from 23 June 2014, the date the respondent deposited money into the GND bank account, to the date of judgment. I calculate that amount to be $43,797.13. The judgment against GND accordingly should be reduced from $173,341.40 to $126,097.13. Conclusion 1. In the result, I would make the following orders: 1. Appeal allowed in part. 2. Set aside Order 1 of the orders made by the primary judge and in lieu thereof enter judgment for the plaintiff against the defendant in the sum of $126,097.13. 3. Order the appellant pay the respondent's costs of the appeal. 1. LEEMING JA: I agree with the Chief Justice's reasons. I wish to provide additional reasons concerning what is logically the first ground of appeal, namely, that the District Court lacked jurisdiction. 2. The appellant filed a defence and defended the proceedings over two days without indicating any objection to the District Court's jurisdiction. On appeal, it submitted that to the extent the PIA document was causative of anything, "it must be because that document is not an accurate reflection of what it purports to be, a contract that binds the Respondent. If it is not accurate, there are no explanations for that other than fraud or mistake." But according to the appellant, to make a finding on that basis would be to rely on a fraud or a mistake, and therefore be outside the jurisdictional limit of the District Court. 1. The appellant added: "There is no basis for any suggestion this case could be characterised as a common law 'money had and received' claim, or a 'common law money count' so as to attract an unjust enrichment remedy without fraud or mistake. In any event, 'money had and received' is not pleaded." 1. Plainly any submission that the District Court lacked personal jurisdiction over the appellant was hopeless. However, if the District Court lacked subject matter jurisdiction, the appellant's participation in the litigation would not prevent this point from being advanced if it had sufficient merit; cf Re Culleton [2017] HCA 3; 91 ALJR 302 at [24]. But the challenge lacks merit, and for a number of independent reasons. 2. The District Court has an equitable jurisdiction which may be easily misunderstood. Section 134 of the District Court Act 1973 (NSW) takes the following form. "134 Jurisdiction in equity proceedings (1) The Court shall have the same jurisdiction as the Supreme Court, and may exercise all the powers and authority of the Supreme Court, in proceedings for— (a) the foreclosure or redemption of a mortgage or the enforcing of any charge or lien where the amount owing in respect of the mortgage, charge or lien does not exceed $20,000, as determined by the Court, (b) the specific performance, rectification, delivery up or cancellation of any agreement for— (i) the sale or purchase of any property at a price not exceeding $20,000, or (ii) the lease of any property the value of which does not exceed $20,000, as determined by the Court, (c) an order under section 3 of the Testator's Family Maintenance and Guardianship of Infants Act 1916 (as in force immediately before that Act was amended by the Succession Amendment (Intestacy) Act 2009) or a family provision order under Chapter 3 of the Succession Act 2006, (d) relief against fraud or mistake where the damage sustained or the estate or fund in respect of which relief is sought does not exceed $20,000 in amount or value, as determined by the Court, (e) the execution of a trust or a declaration that a trust subsists, where the estate or fund subject or alleged to be subject to the trust does not exceed $20,000 in amount or value, as determined by the Court, or (f) the administration of the estate of a deceased person, where the estate does not exceed $20,000 in amount or value, as determined by the Court, or (g) any application under the Property (Relationships) Act 1984, or (h) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which any other paragraph of this subsection applies), in an amount not exceeding the Court's jurisdictional limit. (2) In any proceedings pursuant to subsection (1) (c), the Court shall not have power to make an order for provision under the Testator's Family Maintenance and Guardianship of Infants Act 1916 (as in force immediately before that Act was amended by the Succession Amendment (Intestacy) Act 2009) or Chapter 3 of the Succession Act 2006 that will or may result in the amount of provision so made exceeding $250,000. (3) In any proceedings pursuant to subsection (1) (g), the Court has no power to make an order for financial adjustment under Part 3 of the Property (Relationships) Act 1984 that will or may result in the amount of the adjustment so made exceeding $250,000." 1. It may be seen that s 134 gives to the District Court the same jurisdiction as the Supreme Court, and authorises it to exercise all the powers and authority of the Supreme Court, in eight specified descriptions of proceedings. The opening words of s 134, referring to "jurisdiction", "power" and "authority", enable one to pass over that "slippery term 'jurisdiction'", to which Gummow, Hayne and Heydon JJ once referred: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 at [106]. It matters not whether one frames the issue in terms of authority or jurisdiction or power; the District Court is, in proceedings answering one of the eight specified descriptions, in the same position as the Supreme Court. In respect of the District Court's power, that is confirmed by s 137, which provides that the Court and its Judges shall, in proceedings under (relevantly) s 134, have all the powers and authority of the Supreme Court and the Judges thereof in the like circumstances. 2. The eight specified descriptions are not independent of each other. In particular, s 134(1)(h) is: "any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which any other paragraph of this subsection applies), in an amount not exceeding the Court's jurisdictional limit." (emphasis added) 1. The plaintiff's claim was for the recovery of money or damages (in fact, she sought both). The amount she sought was less than $750,000. If as the appellant contends, her claim was equitable, then it fell within s 134(1)(h) unless it was "a claim or demand of a kind to which any other paragraph" applied. As will be seen below, her claim was not equitable, and it was not a claim or demand to which any other paragraph applied. 2. In order for the parenthetical words "(not being a claim or demand of a kind to which any other paragraph of this subsection applies)" to perform their proper function, close attention must be given to their meaning. Suppose a plaintiff sues a defendant claiming the payment of $30,000 by some breach of duty regarded as fraudulent in equity. The defendant may have been the plaintiff's business partner who exploited a commercial opportunity on his own account rather than accounting to the partnership, or an employee who received a secret commission, or a person knowingly involved in a fraudulent breach of fiduciary duty owed to the plaintiff. The proceedings do not fall within s 134(1)(d), because although the plaintiff seeks relief against fraud more than $20,000 is sought. However, the proceedings do fall within the parenthetical words of s 134(1)(h), because they are a claim of a kind to which paragraph (d) applies, namely, a claim for relief against fraud. 3. It will be seen that each of paragraphs (a)-(g) in s 134(1) amounts to a subject matter description coupled with a pecuniary limitation. In the case of paragraphs (a), (b), (d), (e) and (f), the limitation ($20,000) appears on the face of the paragraph. In the case of paragraphs (c) and (g), the limitation ($250,000) is found in s 134(2) and (3). The significance of the parenthetical words in s 134(1)(h) is this: they require an analysis of whether the particular claim is "of a kind" to which one of the earlier paragraphs applies, putting to one side the (lower) pecuniary limitations in those earlier paragraphs. The point is to ensure that paragraph (h) does not outflank the smaller pecuniary limitations in earlier paragraphs, notwithstanding its much larger monetary limitation ($750,000). In fact, it is a form of explicit command to apply the mode of reasoning in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9. 4. That construction accords with Bryson J's observation in Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614; [2001] NSWCA 440 at [68]-[69], referring to the 1997 statute which introduced s 134(1)(h) and which did not alter the balance of the section: "Legislation which confers jurisdiction without limiting any existing jurisdiction should receive an ample construction. Its own terms show that s 134(1)(h) should not be seen as modifying or supplementing previous conferrals of jurisdiction, which until the enactment of s 134(1)(h) were limited in amount to $20,000. The appearance in s 134(1)(h) of the jurisdictional limit of $750,000 marks a wide reforming purpose. It would not accord with that purpose to construe s 134(1)(h) with limiting implications based on the terms of earlier paragraphs, as if s 134(1)(h) were one more increment in a connected series of conferrals. Harmony with earlier paragraphs is not to be expected. Section 134(1)(h) took a strikingly new direction away from earlier conferrals of equitable jurisdiction characterised by close definitions and small amounts. The parenthetical passage in s 134(1)(h) shows, in my view exhaustively, in what ways the earlier paragraphs limit s 134(1)(h). The words in parentheses exclude from the conferral of jurisdiction in s 134(1)(h) claims or demands of kinds to which any other paragraph applies, and classification by kinds is established by the whole terms of each earlier paragraph including the jurisdictional limit of $20,000 where it occurs, as it does in s 134(1)(d)." 1. There is a general principle that laws conferring jurisdiction are to be construed broadly and laws denying jurisdiction are to be construed narrowly: Hopkins v Governor-General of Australia [2013] NSWCA 365; 303 ALR 157 at [24]; McCarthy v Federal Commissioner of Taxation (2013) 249 FCR 140; [2013] FCA 715 at [65]. Here, the words "any equitable claim or demand for recovery of money or damages" are a new conferral of jurisdiction upon the District Court, and should be construed broadly. The parenthetical words "(not being a claim or demand of a kind to which any other paragraph of this subsection applies)" are not so much a restriction on jurisdiction, but words which preserve the qualifications attaching to earlier conferrals of jurisdiction. They are to be read neither broadly nor narrowly but so as to achieve that purpose. 2. For completeness, it should also be said that s 134 is not the sole source of the District Court's equitable jurisdiction. Section 6 of the Law Reform (Law and Equity) Act 1972 (NSW) requires the District Court to give effect to any equitable defence in the same way as the Supreme Court would have done so. Section 46 of the District Court Act confers power to grant an injunction in any action; broadly speaking, that corresponds with the auxiliary jurisdiction to grant injunctive relief in aid of legal rights. A separate power to grant "temporary" injunctions is found in s 140. Further, where a proceeding has been transferred from the Supreme Court to the District Court pursuant to s 146 of the Civil Procedure Act 2005 (NSW), the District Court has all of the Supreme Court's jurisdiction in relation to that proceeding: s 149. But none of those provisions is presently applicable. 3. Returning to s 134, the critical question turns on how to characterise a proceeding for "relief against fraud or mistake". Some insight may be gained in understanding the separate conferrals of jurisdiction in s 134(1) by noticing that three paragraphs ((b), (c) and (h)) are defined by reference to the remedy sought, others ((f) and (g)) are defined by reference to the subject matter of the litigation, and the balance ((a), (d), (e)) by reference to a combination of remedy and subject matter. (Similarly, some matters in federal jurisdiction are defined by reference to the remedy sought (such as mandamus against an officer of the Commonwealth), while others are defined by reference to the subject matter (such as matter arising under a law of the Commonwealth)). 4. Thus the starting point is to identify either the remedy sought or the subject matter of the proceedings. The remedy which is sought will ordinarily be found in the originating process. The subject matter of the proceedings may be expected to be identified by the pleadings and the factual basis of the claim. Compare by way of analogy Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [139]: "The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim." 1. Questions may arise in a particular case where a proceeding arguably engages more than one paragraph of s 134(1), or where one aspect of a proceeding falls within s 134(1) but another does not. It is unnecessary in these reasons to express a view on how s 134(1) works in such cases. 2. I do not agree with the appellant's submission that whether the proceeding is for relief for fraud or mistake turns on what may be inferred from the findings which are ultimately made. Questions of jurisdiction should be capable of being assessed at the outset of litigation, rather than at the conclusion after findings have been made, and thus there is no reason to construe s 134(1) to effect a conferral of jurisdiction by reference to criteria that can only be determined after judgment is delivered. At least in ordinary cases, whether the proceeding is for "relief against fraud or mistake" will turn on the issues raised by the plaintiff's originating process. 3. Further, there are many occasions when a plaintiff may bring a claim for damages for breach of contract, or for misleading and deceptive conduct, where there may have been either fraud or a mistake. Indeed, a plaintiff may have a proper basis for alleging fraud, but may choose not to do so, instead bringing a claim for misleading or deceptive conduct or breach of contract. That choice may be informed by a perception that the latter may be easier to make out, or easier to compromise, or in an attempt to preserve a business relationship, or to avoid the operation of an exclusion in an insurance policy, or for some other reason. But the fact that there may be fraud does not make the proceedings for relief against fraud within the meaning of the parenthesised words in s 134(1)(h) read with s 134(1)(d). 4. The precise scope of "relief against fraud or mistake" may be problematic in particular cases. "[T]here can be no fraud where there is no mistake", as many editions of the opening paragraph of Kerr on Fraud and Mistake have explained. But "fraud" itself cannot be defined and it may be that "mistake" adds little to its scope in this context; cf Svanosio v McNamara (1956) 96 CLR 186 at 196; [1956] HCA 55. It is not necessary to express a concluded view on the issue. 5. It must also be borne in mind that s 134 is dealing with equitable claims. A claim for damages for deceit is a classic action at common law, which is plainly within the ordinary civil jurisdiction of the District Court. The District Court has long had a general civil jurisdiction for actions at common law. Section 7 of the District Courts Act 1858 (NSW) provided that "[a]ll pleas of personal actions wherein the amount claimed is not more than two hundred pounds ... may be holden in the Courts established under this Act". There is now a single "District" Court in the State, but the substance of the comparable provision in the 1973 statute, s 44(1)(a), is the same: it confers jurisdiction to hear and dispose of actions within the Court's pecuniary jurisdictional limit which would be assigned to the Common Law Division. That includes an action for deceit. 6. Of course, broader relief was available in equity in cases of fraud than at common law, perhaps most obviously, rescission. Equity took a broader view of what amounted to "fraud"; as Viscount Haldane LC explained in Nocton v Lord Ashburton [1914] AC 932 at 953: "[i]n Chancery the term 'fraud' thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanction." And relief in equity was more widely available because equity had the means to achieve restitutio in integrum and so achieve what is practically just between the parties, as was explained in Alati v Kruger (1955) 94 CLR 216 at 223-224; [1955] HCA 64. 7. That is to say, s 134 simply does not speak to actions for deceit, which (subject to the $750,000 jurisdictional limitation) fall within the general conferral of jurisdiction in respect of actions under s 44. The appellant's submission requires the proceeding to fall within s134(1)(d) which means that it is a proceeding for fraud or mistake in equity, and not a proceeding for damages for deceit. It is neither. Plainly it is a common law action, devoid of any claims for fraud or mistake. 8. Finally, the appellant submits that money had and received is not pleaded. Ms Lane alleged that "by reason of the Defendant failing to provide the entire Investment Amount on to Arden Group and retaining for its own use the amount of $82,300.00, the Defendant was unjustly enriched at the expense of the Plaintiff." Her pleading sought the damages or the recovery of the $82,300, together with interest and costs. 9. The appellant's submission suffers from the vice of which Nettle, Gordon and Edelman JJ spoke in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [150]. The only question which matters for the purposes of the appellant's claim that the District Court lacked jurisdiction is whether the proceeding was one for relief against fraud or mistake within the meaning of s 134(1)(d). It was not, because the claim was evidently one for damages at common law, and in any event neither fraud nor mistake was alleged. 10. The primary documents tendered at trial demonstrated that Ms Lane had transferred $643,300 into the appellant's bank account on 23 June 2014 and that an agreed amount of $561,000 was transferred or otherwise accounted to Arden by 13 July 2015 (as to the latter, there is no reason to doubt the accuracy of the contemporaneous email of an employee working in the appellant's office). It might be thought moderately plain that the money in the bank account was held by the appellant on trust for the purposes of a PIA entered into pursuant to the procurement agreement, failing which it to be returned to Ms Lane (in the manner described in Re Australian Elizabethan Theatre Trust; Lord v Commonwealth Bank of Australia (1991) 30 FCR 491). But Ms Lane, very properly, did not advance such a claim. If she had done so, it would present a difficulty with the limited equitable jurisdiction of the District Court in relation to the execution of a trust or a declaration that a trust exists within the meaning of s 134(1)(e). 11. Ms Lane did not rely upon any entitlement as beneficiary of a trust. Nor was she obliged to do so. A plaintiff not uncommonly has alternative claims arising out of the same facts, as was noted in Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2016] NSWCA 81 at [48]. Ms Lane was free to commence and maintain such causes of action as she thought fit, bearing in mind, inter alia, the jurisdictional limitations of her chosen forum. 12. I agree with the orders proposed by the Chief Justice. 13. EMMETT AJA: Introduction This appeal is concerned with a Deed of Procurement dated 23 June 2014 (the Deed of Procurement) between the appellant, Great Northern Developments Pty Ltd (GND) and the respondent, Ms Dael Lane (Ms Lane). Ms Lane commenced proceedings in the District Court against GND claiming damages for breach of the Deed of Procurement or, alternatively, recovery of monies paid to GND alleged to have been received by GND to the use of Ms Lane on the basis of a total failure of consideration. The District Court of New South Wales gave judgment for Ms Lane against GND in the sum of $173,341.47. GND now appeals to this Court from the orders made by the District Court. The PIA 1. The Deed of Procurement contained a recital as follows: "[Mr McCartney] has agreed to pay GND procurement fee [sic] to GND to allow business associates of GND to partake in a Preferred Investor Agreement with Arden Management Group Pty Ltd." and "[Ms Lane] is a business associate and has agreed to enter into a Preferred Investor Agreement with Arden Management Group Pty Ltd …". The Deed of Procurement provided that GND was obliged to procure a preferential investor agreement (PIA) similar to the document attached to the Deed of Procurement (the Sample PIA). The parties to the Sample PIA were Arden Management Group Pty Ltd (Arden), Ms Lane and Mr Derek McCartney (Mr McCartney) as guarantor of the obligations of Arden. By cl 2 of the Sample PIA, Ms Lane agreed to provide the sum of $643,300 (the Investment Amount) to Arden within 14 days and Arden agreed to use the Investment Amount for the purpose of meeting costs incurred by it in relation to a proposed development of land in Queensland (the Land). By cl 3, Arden agreed to pay interest on the Investment Amount at 15% per annum. 1. Clause 5 of the Sample PIA provided that not later than 45 days after practical completion (as defined in the Sample PIA), Arden was to give notice to Ms Lane that practical completion of the development had occurred. Upon receipt of that notice, Ms Lane was required, within 14 days, to elect either to require repayment of the Investment Amount and interest or to purchase Lot 1607 in the proposed development. If Ms Lane elected to be repaid the Investment Amount plus interest, Arden was required to pay that amount within 30 days. If Ms Lane elected to purchase Lot 1607, she and Arden were to enter into a standard Real Estate Institute of Queensland contract for the sale of Lot 1607 by Arden to Ms Lane for the purchase price of $919,000. The contract was to contain a provision whereby Arden was to pay to Ms Lane a rebate equal to the difference between the purchase price and the Investment Amount. Clause 4 of the Deed of Procurement provided that, upon execution of the Deed of Procurement, Ms Lane would pay 70% of the purchase price into a nominated account of GND, being the Investment Amount. 2. Clause 5 of the Deed of Procurement provided that if a PIA was not entered into at the conclusion of 180 days from the date of the Deed of Procurement, Ms Lane would have the option to request the return of the Investment Amount. Under cl 6, if a PIA was not entered into, GND agreed to pay, in addition to the Investment Amount, the equivalent of 8% per annum by way of interest. Clause 7 of the Deed of Procurement provided as follows: "GND is solely responsible to account to [Arden] for the Investment Amount". 1. In addition to the Sample PIA that was attached to the Deed of Procurement several forms of the proposed PIA were prepared. Three versions were signed by Ms Lane. Only one of those versions was signed on behalf of Arden and by Mr McCartney. The three versions were substantially identical except for, relevantly, the definition of Investment Amount, the identity of the Lot, the purchase price and the sunset clause date. 2. By email of 11 November 2014, Ms Lane inquired of Mr Christopher Edwards, a director of GND, whether a PIA had been procured on her behalf with Arden. Mr Edwards is a solicitor. On 12 December 2014, Ms Lane received an email from Mr Edwards' office enclosing a form of PIA with a request that she sign the last page, which contained the attestation provisions, and return that page to be witnessed. Ms Lane signed the page and sent it back in accordance with the request in the email. 3. Later in December Ms Lane signed a further version of the PIA in substantially the same form. The identification of the Lot was clarified. Ms Lane's signature of that version of the PIA was witnessed by Mr Edwards. Mr Edwards gave evidence that the version of the PIA signed by Ms Lane and witnessed by him was sent to Arden. However, there was no evidence that that form of the PIA was signed on behalf of Arden. Both versions of the PIAs signed in December differed from the Sample PIA. 4. The second PIA described the Lot as "Lot 4620" and specified a sunset date as five and a half years from the date of the PIA rather than three and a half years in the case of the first version. Nothing turns on that last difference. Ms Lane also accepts that the change in the identity of the lot was not significant. 5. At some time in early 2016, Ms Lane travelled to Queensland to see the unit that was the subject of the proposed PIA and to meet Mr McCartney. At some time during her meeting with Mr McCartney, Ms Lane asked to see a copy of the PIA. Mr McCartney showed her a version of the PIA (the 2015 PIA). The 2015 PIA contained Ms Lane's signature, witnessed by Mr Edwards. The 2015 PIA was also executed on behalf of Arden and was signed by Mr McCartney. 6. However, the relevant particulars in the 2015 PIA were significantly different from those in the Sample PIA. The Investment Amount was defined as $561,000 and the purchase price was $935,000. 7. On 21 December 2016, Ms Lane, Arden and Mr McCartney entered into a deed of termination of the 2015 PIA, which recited that the parties had entered into a PIA in respect of Lot 4620 on or around 14 May 2015, that Ms Lane had provided the sum of $561,000 to Arden pursuant to that PIA, that notice of practical completion had not yet been given and that the parties had agreed to terminate the PIA. By cl 1, Arden agreed to pay Ms Lane $721,553 in full and final payment of all amounts owing under the PIA. The parties agreed that the PIA was terminated and the parties released each other from all obligations and liabilities under the PIA or in any way connected with the PIA or the proposed development. The Dispute 1. It is common ground that Ms Lane paid to GND the sum of $643,300. However, GND only paid the sum of $561,000 to Arden. The dispute in the proceedings concerns the balance of $82,300. GND contended that the sum of $82,300 retained by GND represented a procurement fee payable by Arden to GND to procure investors who would enter into PIAs with Arden, as foreshadowed in the recital in the Deed of Procurement. 2. Ms Lane asserted that she had no knowledge of the 2015 PIA until it was shown to her in 2016. GND eschewed any contention that it was not a genuine document and the primary judge made no finding as to whether or not Ms Lane had signed the 2015 PIA. The signatures of Ms Lane appear very similar. Further, examination of the attestation pages of the three signed versions indicates, from the placement of Ms Lane's signature on the page relative to typed material, that each was signed separately and that none is a copy of any other. In that very unsatisfactory state of the evidence, it is necessary to deal with the claims made by Ms Lane in the proceedings in the District Court. 3. I have had the advantage of reading in draft form the reasons of the Chief Justice. I agree with his Honour's reasons for concluding that the appeal should be allowed in part. I agree with the orders proposed by him. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2021