Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Miraki v Griffith [2021] NSWCA 263 Hearing dates: 1 June 2021 Decision date: 29 October 2021 Before: Bell P at [1]; Payne JA at [42]; McCallum JA [45] Decision: Appeal dismissed with costs Catchwords: RESTITUTION – total failure of consideration – prepayment for goods never delivered – where buyer dealt with father and son – payment into account in son's name at his direction – where primary judge accepted son's evidence that the father controlled that account and obtained the benefit of the funds deposited into it – whether son liable to make restitution Legislation Cited: Minors (Property and Contracts) Act 1970 (NSW) s 17 Uniform Civil Procedure Rules r 51.53(1) Cases Cited: ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412 Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4 BBB Constructions v Aldi Foods [2010] NSWSC 1352 Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58 Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221 Coshott v Lenin [2007] NSWCA 153 Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 Furlong v Wise and Young Pty Ltd [2016] NSWSC 1839 Ilich v R (1987) 162 CLR 110; [1987] HCA 1 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 Miraki v Griffith [2020] NSWDC 417 Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 Wickstead v Browne (1992) 30 NSWLR 1 Texts Cited: Ian Jackman, The Varieties of Restitution (2nd ed, 2017, The Federation Press) J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing) K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (4th ed, 2021, LexisNexis) Category: Principal judgment Parties: Sepideh Miraki (Appellant) Joshua Griffith (First Respondent) Dominic Griffith (Second Respondent) Representation: Counsel: D Allen (Appellant) E A J Hyde, R J Pietriche (First Respondent) No appearance (Second Respondent) Solicitors: William Roberts Lawyers (Appellant) Hall & Wilcox (First Respondent) In person (Self-Represented) (Second Respondent) File Number(s): 2020/251220 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 417 Date of Decision: 05 August 2020 Before: Strathdee DCJ File Number(s): 2018/137629 [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 appellant, Sepideh Miraki, appealed from a decision of the District Court rejecting her claim for restitution in respect of four payments made for luxury Versace furniture and home accessories which were never delivered. The goods were ordered from a business run by Dominic Griffith. His son Joshua Griffith, aged 17 at the time the order was placed, assisted him in the business. The first two payments were made into an American bank account in the name of Dominic Gerard Groupe De Luxe Ltd. The third and fourth were paid into Joshua's personal account. All four payments were made by Barton Contractors Australia Pty Ltd, a company of which Mrs Miraki was formerly a director but not at the time of the payments. The claim was initially pleaded in contract. A claim in restitution was later pleaded against Joshua on the basis of a total failure of consideration. The District Court entered judgment in favour of Mrs Miraki against Dominic in the sum of $116,279.91 but rejected the claim against Joshua. Mrs Miraki appealed from that part of the decision. The primary judge (Strathdee DCJ) found that Dominic was operating the business while Joshua was simply providing assistance under his father's control and direction. The judge also found that Dominic controlled the bank account in Joshua's name and used it as his own. Accordingly, her Honour accepted that Joshua did not receive any benefit from the first three payments and was not liable to make restitution. Her Honour did not determine the claim as to the fourth payment, accepting a submission by Joshua that, in the way in which the case was opened and conducted, that claim was taken to have been abandoned. The principal issues on appeal were: 1. whether Joshua obtained a benefit from any of the payments so as to be liable to make restitution of those amounts; 2. whether the primary judge erred in not permitting the appellant to run her pleaded case concerning the fourth payment; and 3. by notice of contention filed by Joshua, whether the appellant was entitled to restitution of amounts paid by the company, Barton Contractors. Held, dismissing the appeal with costs As to issue (1), per Bell P: As to the payments into the American bank account, Joshua neither received the payments nor was shown to have benefited from their receipt: at [28]-[30]. ABB Power Generation Ltd v Chapple (2001) 25 WAR 158; [2001] WASCA 412; BBB Constructions v Aldi Foods [2010] NSWSC 1352; Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221, distinguished. Joshua was not liable to make restitution for the payment into his account because, viewed as a matter of substance in light of the factual findings, he received it as a mere conduit or intermediary and did not appropriate the payment to his own benefit and thus was not enriched: at [31]-[34]. Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101; [1993] HCA 54; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14, applied. As to issue (1), per McCallum JA: The question of benefit must be judged objectively from the position of the defendant as a matter of substance rather than form. As to the payments into the American bank account, Joshua did not receive a benefit merely by listing that account on the invoice at his father's direction: at [117]-[127]. ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412; Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221; BBB Constructions v Aldi Foods [2010] NSWSC 1352, distinguished. ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17; Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5, applied. Joshua did not receive the benefit of the payment into his account but rather was a "mere conduit" of funds received for the benefit of Dominic: at [128]-[133]. Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58; Ilich v R (1987) 162 CLR 110; [1987] HCA 1; Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272; Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82, distinguished. ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17, applied. As to issue (2), per McCallum JA; Bell P at [36] finding it unnecessary to decide: The opening submissions created the impression that the amounts claimed were only the first three payments. It was open to the primary judge to conclude that the claim had been narrowed accordingly. In any event, Joshua did not receive any benefit from the fourth payment: at [134]-[142]. As to issue (3), per Bell P: It was not necessary to determine this question. If it had been, the appellant would have failed to establish that she was the proper plaintiff: at [37]-[40]. Nikolic v Oladaily Pty Ltd [2007] NSWCA 252, referred to. As to issue (3), per McCallum JA: It was not necessary to determine this question. However, there is some support for Joshua's submission that restitution was not available in circumstances where the source of payment was not the appellant's own funds and in the absence of evidence that she bore the burden of those payments: at [144]. Nikolic v Oladaily Pty Ltd [2007] NSWCA 252, referred to Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68, discussed. Judgment 1. BELL P: This appeal relates to a claim for restitution in respect of four payments said to have been made by Ms Sepideh Miraki (Mrs Miraki). The first two payments were into a Bank of America account in the name of Dominic Gerard Group De Luxe, Ltd (the New York account) and controlled by Dominic Griffith (Dominic). The third and fourth payments were made into a Commonwealth Bank account (the CBA account) in the name of Dominic's son, Joshua Griffith (Joshua). 2. Joshua and Dominic were the first and second defendants in the proceedings at first instance and are the respondents to this appeal brought by Mrs Miraki. 3. It would appear that Dominic had, at one point in time, operated or at least been associated with the company known as Dominic Gerard Group De Luxe, Ltd (the Company). A New York State Department of State company search which was in evidence suggested that the Company had been dissolved in 2011. 4. Notwithstanding its apparent dissolution in 2011, on 6 January 2016 an invoice, on a letterhead which referred to "Dominic Gerard" and "Dominic Gerard Groupe De Luxe" and showed a New York address, was issued to Mrs Miraki in the sum of €99,061.94 (the invoice). The invoice related to the purchase of certain luxury household goods. 5. The invoice noted that payment was to be made in four instalments on specified dates, and purported to have been issued by Joshua insofar as it contained the printed statement "Authorized Representative: Joshua Griffith" below the details setting out the instalment dates and a statement that "Payment for duties, taxes and delivery to doorstep will be required prior to departure of goods ex Italy. Payable to Dominic Gerard Groupe De Luxe Inc USA". 6. Two bank accounts were nominated on the invoice. One was the CBA account in the name of Joshua Griffith; the other was the New York account in the name of "Dominic Gerard Group De Luxe, Ltd". 7. The first two payments into the New York account were in the sums of AU$39,043.52 and AU$39,603.14 (the first and second payments). They were made on 3 June 2016 and 1 July 2016 respectively. The third and fourth payments were in the sums of $37,633.25 and $22,487.00 (the third and fourth payments). They were made on 5 August 2016 and 12 September 2016 respectively. 8. Joshua was aged 17 at the time of the issue of the invoice and the first three payments. He had turned 18 by the time of the fourth payment. 9. Strathdee DCJ (the primary judge) did not entertain the claim in relation to the fourth payment on the basis that it was outside the pleaded case. One ground of appeal relates to that matter. 10. Although Mrs Miraki's claim against Joshua was originally framed as one for breach of contract, in her reply to Joshua's defence, and in effect by way of a plea in the alternative, Mrs Miraki alleged that the monies claimed were "monies had and received" and that Joshua was liable to make restitution to her in respect of those payments. As McCallum JA explains (at [52]–[60]), Joshua had placed reliance on the Minors (Property and Contracts) Act 1970 (NSW) as part of his defence and it is that which appears to have prompted the alternative claim for restitution. No appeal was pursued in respect of the contract claim. 11. It was not in dispute before the primary judge that Mrs Miraki had entered into a transaction for the purchase of certain luxury goods following various email communications with both Joshua and Dominic in the course of 2016. Nor was it in dispute that payments by way of instalment were made in relation to them in accordance with the invoice (although there was a dispute as to the goods to which the fourth payment related). Nor was it in dispute that no goods were relevantly delivered to Mrs Miraki. These were the circumstances that gave rise to the claim for restitution based upon a total failure of consideration. 12. The evidence disclosed that the payments into the New York account and the CBA account were made by Barton Contractors Australia Pty Ltd (Barton), which was a company of which Mrs Miraki claimed to be a director (although this was not supported, at least at all times material to this dispute, by ASIC records which were in evidence). Mrs Miraki gave evidence that she authorised payments out of this account. Barton is now under external administration. The primary judge indicated that this fact did not mean that Mrs Miraki was not the proper plaintiff and entitled to bring the claim. This finding was the subject of a separate Notice of Contention and is addressed further below. 13. The primary judge entered judgment against Dominic in the sum of $116,279.91 representing an amount equal to the first, second and third payments: Miraki v Griffith [2020] NSWDC 417 (the primary judgment). There is no appeal by Mrs Miraki from this order (and no cross-appeal by Dominic). Dominic did not play an active part in the hearing save for the brief intervention explained in [108]–[109] of McCallum JA's reasons, and the primary judge's reasons do not in fact disclose the basis upon which she held Dominic to be liable. It should be noted that the claim against Dominic was not formulated in terms of unjust enrichment, or money had and received, but solely in contract. 14. Implicit, however, in the primary judge's finding that Dominic was liable to Mrs Miraki in the sum of $116,279.91 is that he had in fact received the benefit of the payments claimed, although whether or not this was as money "had and received" or by way of a discharge of Mrs Miraki's contractual obligation to him was not made plain. If the former, in the contemporary language of unjust enrichment, it was Dominic who had relevantly been "enriched", although whether or not this was "at the expense of" Mrs Miraki or Barton was the point raised by the Notice of Contention. 15. The primary judge dismissed Mrs Miraki's claim against Joshua, whom she had claimed was liable to make restitution as he had allegedly also taken the benefit of the payments made for the goods. It was on the basis that Joshua had, by the invoice, directed payment of the instalments to either of the CBA or New York bank accounts that Mrs Miraki claimed that he was liable to make restitution for the first and second payments, although there was no apparent personal connection between him and the New York account. This argument was rejected, as was the claim in respect of the third payment even though it was made into the CBA account in Joshua's name. 16. Mrs Miraki seeks to challenge the primary judge's orders dismissing the claim against Joshua with costs. The primary judgment 1. The primary judge held that: 1. Dominic was running and operating the business known as Dominic Gerard Group De Luxe, Ltd: at [42]; 2. Joshua and Dominic were not operating a business together, nor was one acting as an agent of the other: at [42]; 3. Joshua was "simply assisting his father with respect to transactions [purportedly] executed by the company with its customers, including the plaintiff": at [42]; 4. Joshua was "at all material times, under the control and direction of Dominic": at [42]; 5. the payments into the New York account were payments for which Dominic obtained the benefit: at [43]; 6. there was no evidence that the first and second payments were for the benefit of Joshua: at [46]; and 7. Joshua did not receive any benefit from the first, second and third payments: at [55]. 1. The last of these findings had its basis in evidence given by Joshua in the course of the trial and accepted by the primary judge. This included that Dominic used the CBA account "as if it belonged to him". Joshua's Affidavit evidence identified a large number of transactions in the CBA account statements including payments into the account by Dominic and withdrawals effected by Joshua at his father's direction. Joshua's evidence was to the effect that Dominic spent more from the account than he caused to be deposited to it. Further reference to Joshua's evidence is set out in [71]–[75] of McCallum JA's reasons. 2. The primary judge accepted (at [32]) that: "there has been a total failure of consideration; Roxborough v Rothmans of Pall Mall Ltd. The failure of consideration connotes the failure of the state of affairs contemplated by the parties ('a state of affairs that has failed to sustain itself'; Roxborough). I also accept that the failure does not have to be referable to a contract, it can just be a state of affairs that was unfulfilled; Roxborough." 1. The critical question for the primary judge was whether Joshua benefitted from the payments such that he was liable to make restitution to Mrs Miraki. This fell to be assessed against the primary judge's plain acceptance, reflected in the judgment against him, that Dominic had benefitted from those payments. 2. In respect of the first and second payments, the basis of the primary judge's answer in the negative was tolerably clear, as there was nothing in the evidence to connect Joshua with control of the New York account into which those payments were made, especially in light of her Honour's finding that the business was not being operated jointly by father and son: see [17(2)] above. 3. Although the third payment was made into the CBA account in Joshua's name, it was one which his father treated "as though it was his" and, on her Honour's findings, Joshua did not benefit from this payment. Part of Joshua's evidence in relation to the CBA account, which the primary judge accepted, was that: "I didn't have control over the money in that account. My father had full control of the account. He – he you know, controlled what came into the account and what went out of the account, what was paid. My dad controlled all the finances of that account". Grounds of appeal 1. The grounds of appeal are set out in the reasons of McCallum JA. To the extent that those grounds involve challenges to the key factual findings which have been set out at [17] above, I agree with her Honour's reasons for rejecting those challenges. 2. The primary judge not only had the benefit of observing Joshua give his evidence but, perhaps more importantly, the relevant context, including the fact that Joshua was only 17 years old at the time of the events in question, supplied strong support for those factual findings. 3. I also agree with McCallum JA's reasons (at [107]–[113]) for holding that no adverse significance should be attached to the way in which the primary judge dealt with and referred to the brief intervention by Dominic in the proceedings. Consideration 1. As outlined by the primary judge, it was not in issue that Mrs Miraki had caused payments to be made for the goods and that those goods were never delivered. There was plainly a failure of consideration, this being the recognised "qualifying or vitiating" factor which made the retention of any benefit "unjust" so as to give rise to a prima facie entitlement to restitution: see Wasada Pty Ltd v State Rail Authority of New South Wales (No 2) [2003] NSWSC 987 at [16]–[18], cited with approval in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 at [141] (AFSL); Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [168]. 2. In relation to the first two payments deposited into the New York account, Mr Allen, who appeared for Mrs Miraki on the appeal, submitted that as Joshua had requested Mrs Miraki to pay the monies to Dominic's account (by virtue of his name appearing on the invoice; see [5] above) and had supplied the account details so that the payments could be effected, those matters in some way resulted in Joshua benefitting in the requisite sense, such that he was liable to make restitution of those amounts. 3. If there were some evidence that Joshua had benefitted from the direction to pay money into the New York account because, for example, payment to the holder of that account in turn discharged some liability Joshua had to that person or entity, then it is possible that, in such circumstances, Joshua could have been held to be personally liable to make restitution to the payer. That would be on the basis that Joshua had been enriched or was benefitted by the discharge of a pre-existing liability to the controller or holder of the bank account to which he directed payment. But that was not this case and the pure act of direction did not generate a liability in Joshua. He neither received the payments nor was shown to have benefitted from their receipt by Dominic. 4. The cases relied upon by Mr Allen in this regard — ABB Power Generation Ltd v Chapple (2001) 25 WAR 158; [2001] WASCA 412 at [20]; BBB Constructions v Aldi Foods [2010] NSWSC 1352 at [368]; and Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 at 257 — only went to the proposition that a benefit need not necessarily be monetary to found a claim in restitution. That, however, was not the basis upon which the claim in respect of the first and second payments was unsuccessful. 5. No cogent basis has been demonstrated for challenging the primary judge's conclusion with regard to the first two payments. 6. As the primary judge noted at [47], the case in respect of the third payment was in a different category, as that payment was made directly to the CBA account in Joshua's name. 7. Mrs Miraki's contention was that, prima facie, the receipt of funds in the CBA account to which he was not entitled rendered Joshua liable to make restitution to her in respect of those funds. This submission, however, needed to overcome the point made in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 at 673–674; [1988] HCA 17, where it was held that: "The prima facie liability to make restitution is imposed by the law on the person who has been unjustly enriched. In the ordinary case of a payment of money, that person will be the payee. However, when the person to whom the payment is directly made receives it as an intermediary (e.g., as agent for a designated principal), there may be uncertainty about the identity of the actual recipient of the benefit at the moment of payment. If the circumstances are such that the intermediary is to be seen as being himself the initial recipient of the benefit, his prima facie liability will ordinarily be displaced when he has handed the money received on to the person for whom he received it. In such a case he has, in the event, not retained 'the benefit of the windfall' but been 'a mere conduit-pipe' (see per Collins M.R., Continental Caoutchouc & Gutta Percha Co v. Kleinwort, Sons & Co.) and 'the only remedy is to go against the principal': per Greene M.R., Gowers v. Lloyds and National Provincial Foreign Bank Ltd." (footnotes omitted) 1. In the present case, the primary judge held that Joshua did not receive the benefit of the third payment. As I have pointed out above (at [20]–[21]), it is implicit in that finding and in the entry of judgment against Dominic, which was referable to that payment (in addition to the first and second payments), that the primary judge must necessarily have held that Joshua received the third payment as a mere conduit or intermediary or, as it is sometimes put, had the benefit of a "payment over" defence: see K Mason, JW Carter and GJ Tolhurst, Restitution Law in Australia (4th ed, 2021, LexisNexis) at [441]–[442]; AFSL at [8]. Expressed slightly differently, Joshua was not liable because, although payment was made into a bank account in his name, he did not appropriate the payment to his own benefit and thus was not enriched: see J Edelman and E Bant, Unjust Enrichment (2nd ed, 2016, Hart Publishing) at 78, 384. 2. In making her finding that the third payment was not to Joshua's benefit, notwithstanding that it was paid into the CBA account which was in his name, the primary judge looked to the substance rather than the form of the matter. This was entirely in accordance with settled authority: see Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 376; [1993] HCA 4; Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101 at 111; [1993] HCA 54; AFSL at [137]. 3. It may be noted (but only for completeness) that if Dominic's liability lay in contract as opposed to restitution, questions concerning the so-called "subsidiarity doctrine", to the effect that contractual allocation of risk cannot be subverted by alleging a cause of action stemming from unjust enrichment covering the same conduct, may have arisen: see generally Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 at [74]–[75], [165]–[167]; Coshott v Lenin [2007] NSWCA 153. As the primary judge's reasons do not disclose the basis upon which she held Dominic liable (see [13] above), this can be passed over. 4. Had her Honour permitted Mrs Miraki to press her claim in respect of the fourth payment, the same reasoning which applied to the third payment would have applied in light of the acceptance of Joshua's evidence in relation to his father's effective control of the CBA account and the lack of benefit that he, Joshua, derived from payments made into it. It follows that nothing ultimately turns upon whether the primary judge was justified in holding that Mrs Miraki could not pursue her claim in respect of the fourth payment. 5. It also follows that it is not necessary to decide the Notice of Contention point, which was to the effect that if any restitutionary claim lay against Joshua, that claim was not one for Mrs Miraki to agitate but was a claim which Barton had, it being recalled that it was in fact Barton that had made the four payments: cf, Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 at [97]. 6. Some exiguous evidence was led to the effect that Barton was a company with which Mrs Miraki had a loan account, and it was submitted that her direction of Barton to make payments for the goods which she had ordered did not detract from her standing as a plaintiff to maintain the action for restitution. 7. The primary judge held that whether the monies were paid to Joshua and Dominic by Barton or Mrs Miraki was irrelevant: at [36]. That observation was not correct. Mrs Miraki could only sustain a claim in restitution if she could demonstrate that the defendants were enriched at her expense. If it had been able to be established that the payments made by Barton in turn discharged an amount owed to Mrs Miraki on her loan account with the company, she probably would have had sufficient standing to pursue her claim. Whether that was so was not a matter upon which the primary judge made any finding. It was a matter for Mrs Miraki to establish given that, prima facie, it was Barton that was the source of the four payments the subject of the claim for restitution and therefore the party at whose expense any unjust enrichment had been obtained. 8. Had it been necessary to decide the question, I would have upheld the point raised by the Notice of Contention, namely that Mrs Miraki was not or had failed to establish that she was the proper plaintiff. 9. For all of the above reasons, I agree with the orders proposed by McCallum JA, namely that the appeal should be dismissed with costs. 10. PAYNE JA: I have had the benefit of reading the judgments of Bell P and McCallum JA in draft. 11. It is unnecessary in this case to explore any differences between what Bell P has said at [26]-[40] and McCallum JA has said, particularly at [86]-[96], about the correct approach to a claim for restitution. Given the clear findings by the primary judge, which have not been successfully impugned, about the four payments here in issue explained at [27]-[28], [33] and [36], on any view the appeal must be dismissed. 12. I agree with the orders proposed by McCallum JA. 13. McCALLUM JA: Sepideh Miraki brought proceedings in the District Court against Dominic Griffith and his son, Joshua Griffith to recover payments made for luxury Versace furniture and home accessories ordered by Mrs Miraki which were never delivered. 14. The matter was heard by Strathdee DCJ over two days in June 2020. Her Honour entered judgment in favour of Mrs Miraki against Dominic Griffith in the sum of $116,279.91: Miraki v Griffith [2020] NSWDC 417. However, the claim against Joshua Griffith was rejected and judgment was entered in his favour. Mrs Miraki appeals from that part of the decision. 15. I have concluded that the appeal should be dismissed for the following reasons. Circumstances in which the claim was brought 1. Mrs Miraki had previously ordered luxury Versace tableware and gold cutlery through Dominic Griffith. According to an email she sent him in May 2016, she was happy with his service and the pricing of those items; she declared "from now on you [Dominic] are the only person I would deal with when it comes to luxury." 2. On 1 June 2016, Mrs Miraki placed an order for Versace home furnishings (a sofa, two armchairs, two side tables, a coffee table, a bed, a mattress, two bedside tables and a rug). The price was expressed in euros (€99,062) which was to be paid in four instalments of €24,765.50 due in June, July, August and September 2016. It is common ground that Mrs Miraki paid the first three instalments but not the fourth, which she understood was due only when the furniture had been manufactured and was ready for dispatch. However, she made two other payments in September 2016, apparently against separate orders for Versace bathroom and dining accessories. 3. The invoice for the home furnishings was dated 1 June 2016 and appeared on the letterhead of a company named Dominic Gerard Groupe De Luxe Ltd with an address in New York. Records subsequently obtained from New York State Department of State identified the status of that company as "inactive", the company having evidently been the subject of "dissolution" in April 2011. There was no evidence before the primary judge as to the legal effect of that event but it appears to have been assumed by those advising Mrs Miraki that it meant the company was not able to be sued. Mrs Miraki accordingly brought her claim against Dominic Griffith personally and also against his son Joshua, with whom she had some of her dealings. Joshua was a minor at the time the order for the home furnishings was accepted in June 2016 and when the three instalments were made. He had turned 18 by the time the payments for the bathroom and dining accessories were made. The significance of Joshua's age is considered below. Proceedings in the District Court 1. The claim in the District Court was initially pleaded in contract on the basis that the two men represented themselves to be agents or authorised representatives of Dominic Gerard Group De Luxe when either that company did not exist or alternatively they had exceeded their authority from the company as the disclosed principal. On that basis, it was contended that there was an agreement between each of them and Mrs Miraki for the supply of certain goods and that, in breach of the agreement, they failed to supply the goods by the agreed dates. The pleading identified the three instalments paid before September 2016 and further payments made "in or around September 2016". 2. In his amended defence, Joshua raised the fact that he was a minor until 8 September 2016, admitted that some but not all of the payments specified in the statement of claim had been made into a bank account in his name and otherwise denied that Mrs Miraki was entitled to the relief sought. 3. The significance of Joshua's age was that it potentially invoked the application of the Minors (Property and Contracts) Act 1970 (NSW), which governs the circumstances in which a "civil act" (a term defined in the Act to include a contract) is binding on a minor. 4. In a reply filed shortly before the hearing, Mrs Miraki responded in terms effectively denying Joshua's entitlement to rely on that Act but also pleading a new cause of action in restitution as follows: "In the premise of [Joshua] denying he is a contracting party, he is liable for money had and received/unjust enrichment in the circumstances of him or [Dominic] requesting money be paid for the delivery of goods to the plaintiff's doorstep and any consideration for the payments having failed in that no goods were delivered and the payments were not for the delivery of goods to the plaintiff but for [Joshua's] use." 1. The punctuation of the pleading (specifically, the use of a slash in the phrase "money had and received/unjust enrichment") was unfortunate. The form of plea "money had and received" was clear enough, invoking a count of the following kind: "money paid by the plaintiff for a consideration that has failed, may be thus recovered": Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 (Roxborough) at [14] (Gleeson CJ, Gaudron and Hayne JJ). That understanding of the pleading was reinforced by the pleader's apparent reliance on payment for a purpose which had failed ("the payments were not for the delivery of goods to the plaintiff but for [Joshua's] use"): Roxborough at [16]. 2. However, the claim on that basis implicitly assumed that Joshua was the actual recipient of all of the payments. Indeed, that was expressly asserted by Mrs Miraki in written submissions provided to the primary judge by way of opening address but it was factually wrong, as her own evidence proved. Her affidavit established that the first two instalments for the home furnishings were paid by international money transfer to a New York account in the name of Dominic Gerard Groupe De Luxe Ltd. 3. Whether any further, different basis for the "unjust enrichment" claim was intended to be raised at that point was unclear. The only hint of any different kind of restitutionary claim in the reply was the allegation of a "request" for payment. However, the pleading alleged that it was either Joshua or Dominic who made that request, whereas the unjust enrichment claim was pleaded only against Joshua. It will be necessary to return to that question. 4. The third instalment for the home furnishings was in a different position as it was paid into an account in the name of Joshua Griffith but the date of both the alleged agreement and the payment of that instalment preceded Joshua's 18th birthday, raising the issue of the application of the Minors (Property and Contracts) Act. The later payments for the goods ordered separately by Mrs Miraki were made into the account in Joshua's name after he turned 18 but they were the goods as to which there was a factual dispute concerning the alleged failure of consideration (for reasons explained below, the primary judge did not resolve that dispute). 5. Mrs Miraki's opening submissions again hinted at an alternative basis for the "unjust enrichment" claim against Joshua in the bare contention that the payments into the New York account were made at his direction. At the hearing of the appeal, it was explained that the legal basis for that claim was the contention that payment in accordance with a request or direction is in itself a sufficient form of "benefit" to support a claim in restitution. Whether that was made clear to the primary judge is another question. The claim on that basis assumes that the doctrine of total failure of consideration applies to benefits in kind, as to which see generally Ian Jackman, The Varieties of Restitution (2nd ed, 2017, The Federation Press) at 102-103. The merits of that alternative claim are considered below. 6. Separately, in response to Joshua's case that the payments were received by Dominic, Mrs Miraki argued that that did not matter if the two men were operating a business together, as she sought to prove. However, it was not made clear whether that submission was directed to the contractual claim or the claim for "unjust enrichment". 7. Finally, Mrs Miraki contended that Joshua's defence concerning the sums deposited directly into his account (apparently a reference to his reliance on being a minor) was bad in law because, upon receipt of the money into his account, Joshua became the legal owner of the money. In support of that submission, Mrs Miraki cited the decision of Furlong v Wise and Young Pty Ltd [2016] NSWSC 1839 (Sackar J). However, that submission did not grapple with Joshua's evidence concerning the issue of enrichment or benefit and in any event was not pursued in the appeal. 8. The opening address for Joshua at the hearing identified an issue as to "whether all of the money was paid by the plaintiff". Bank records tendered at the trial established that the payments were paid from an account in the name of a company, Barton Contractors Australia Pty Ltd. In her evidence in the trial, Mrs Miraki claimed to have been a director of that company at the relevant times but that was contradicted by ASIC records. The company has since gone into liquidation after default judgment was obtained against it for over $94,000 in 2018 by a paint supplier. In any event, Joshua argued that, as the payments were not made by Mrs Miraki herself, she had failed to prove an element of her claim. 9. The evidence established that the three instalments of €24,765.50 for the home furnishings were paid in Australian dollars from the Barton Contractors account in sums totalling $114,268.02. As already noted, only the third was paid into an account in Joshua's name. The payments were as follows: * $39,031.52 (plus a $30 transfer fee) paid on 3 June 2016 by international money transfer to a New York account in the name of Dominic Gerard Groupe De Luxe Ltd; * $37,603.25 (plus a $30 transfer fee) paid on 1 July 2016 by international money transfer to the same New York account; * $37,633.25 paid on 5 August 2016 by transfer to an Australian account in the name of Joshua Griffith. 1. As already noted, Joshua turned 18 on 8 September 2016. After that date, two further payments were made from the Barton Contractors account into the account in the name of Joshua Griffith as follows: * $22,487 on 12 September 2016; * $6,262.26 on 22 September 2016. 1. Neither of the September payments related to the order for home furnishings. The evidence at trial did not establish the particular Versace items for which those payments were made and did not clearly establish that none of those items were received, although it seems most were probably not. 2. During closing addresses, an issue was raised as to whether the September payments properly formed part of the claim. The confusion arose from the wording of the written opening submissions provided by Mrs Miraki at the outset of the hearing, which referred only to the home furnishings, and the price of those items, but in fact included (unidentified) amounts paid for other items. It was submitted on Joshua's behalf that, in the way in which the case had been opened and conducted, Mrs Miraki had narrowed her pleaded claim to the three instalments for the home furnishings and had abandoned any claim for other sums. The primary judge accepted the submission. Her Honour effectively ruled that the claim was confined in the manner contended by Joshua and did not permit counsel for Mrs Miraki to reopen his case to tender emails evidently directed to the later payments. One issue in the appeal is whether her Honour erred in making that ruling. As already noted, in light of the ruling, the primary judge did not resolve the dispute as to whether the bathroom and dining room accessories were ever delivered. Accordingly, Mrs Miraki submitted in the appeal that, if the challenge to the ruling succeeded, it would be necessary to remit the matter for a new trial (separately it was submitted that that was the appropriate order in any event because of an accumulation of errors on the part of the primary judge alleged to have resulted in a miscarriage of justice). 3. At the hearing of the appeal, it was indicated that the claim for the last payment listed above (the sum of $6,262.26) was no longer pursued. A further payment of $986 transferred in October 2016 from Mrs Miraki's personal account into Joshua's account was not addressed at all in the appeal. While that sum is included in the amount of $144,003.28 claimed in the notice of appeal (as is the sum of $6,262.26), it too must be taken to have been abandoned. The four payments in issue in the appeal were the three payments by way of instalment for the home furnishings and the payment of $22,487 on 12 September 2016 (to which I will refer as the fourth payment). 4. The only witnesses called at the hearing were Mrs Miraki and Joshua. Mrs Miraki had sworn an affidavit directed to proving the alleged contract but those parts of the affidavit were not read. Her evidence-in-chief in the trial was confined to the payments made and the fact that she had not received the items for which payment had been made. She was cross-examined about the fact that the payments came out of the Barton Contractor's account and her involvement with that company. The cross-examiner also secured her agreement to the proposition that her claim was confined to the home furnishings (even though the pleading claimed additional amounts). 5. Joshua Griffith swore two affidavits. He said he was home schooled until about the age of 15. When he was 13 his father was arrested on drug importation offences. When his father was released on parole for those offences, Joshua went to live with him in Melbourne. His father wanted to start a business buying and reselling Versace homeware products. Joshua was pleased to help his father with what appeared to him to be "a legitimate business". He said the business was his father's and that he assisted as and when requested. He said his father had significant influence over him and was "very controlling"; he had complete access to Joshua's bank account and used it as if it was his own. Joshua had nothing to do with the New York account. During the period that Joshua assisted his father, he understood that all of the sales made by his father (including at least three or four previous sales to Mrs Miraki) had been fulfilled without complaint, until the order for home furnishings. That evidence found some support in Mrs Miraki's email to Dominic Griffith in May 2016 to which I have referred above. 6. Joshua tendered a copy of his bank statements annotated by him to identify those debits made by him and those made by his father either on his own account or for the benefit of the business. The annotations (if accepted) show that the third instalment paid by Mrs Miraki, which was the first payment made into Joshua's account, was entirely used for the benefit of Dominic or the business. The position appears to be roughly the same for the fourth payment. Certainly, it may be accepted, as submitted by Joshua, that the amounts debited by him were de minimis. 7. Joshua was cross-examined as to his involvement in the business and his relationship with his father. He steadfastly maintained that his father had complete control of the business and the money received and that he, Joshua, had only ever acted at his father's direction. His evidence on that issue is exemplified in the following exchange concerning the furniture: Q. To your understanding why did Mrs Miraki pay money into your personal bank account? A. It was a payment for my father. There was a business transaction that she had with my father so that he would supply her these furnitures. Q. Was that furniture, to your knowledge, ever supplied? A. I don't think my father supplied it, no. Q. When you say in answer to both my previous two questions my father, you were dishonestly trying to blame your father for the failure to deliver goods to Mrs Miraki for which she paid? A. This is not true, sir. Q. You'd agree that Mrs Miraki, after your 18th birthday, paid money into your personal bank account for the purchase of goods which were not delivered. Correct? A. For the purchase of goods for my father which he didn't deliver, yes, that would be correct. Q. The money, you agree, went into your personal bank account? A. Yes. My father asked her to pay my personal bank account, yes. Q. You'd agree that you haven't paid Mrs Miraki back the money that was deposited into your bank? A. I couldn't sir. HER HONOUR Q. I'm sorry, could you repeat that? A. I couldn't sir – your Honour. I couldn't repay it. I didn't have control over the money in that account. My father had full control of the account. He – he you know, controlled what came into the account and what went out of the account, what was paid. My dad controlled all the finances of that account and you know that came to everything. 1. Joshua's evidence concerning the fourth payment was to the same effect: Q. When – sorry, in September 2016, did you come to the realisation that the $22,000 paid into your account by Mrs Miraki wasn't going to be used for the purchase of Versace goods? A. No, sir, because I – my dad supplied all the orders. My dad was in control of all the finances, and he never hasn't supplied an order to her or any of our other clients before. He had bank accounts in the United States with more money. He had his own accounts, so I – no, I didn't have reason to believe that he was not going to use that money to supply the goods. ….. Q. And in – sorry, in September 2016, you knew that the $22,000 was being spent for purposes other than fulfilling the order made by Mrs Miraki. That's the case, isn't it? A. No sir, that's not the case, because my father was managing all the finances, so I trusted him. I didn't know what he was using the money for. As far as I was concerned, it was his money. This was not a payment for me. This was not my money. This was his money. 1. There is nothing inherently implausible about Joshua's evidence on those issues. On the contrary, his evidence accords with what one would expect of a teenage boy living with and dependent upon his father. The primary judge was best placed to determine whether to accept Joshua as a witness of truth, which she did. 2. Dominic Griffith was not represented at the hearing at first instance. He attended the hearing by video link but did not give evidence. Apart from making a small number of statements in response to issues raised by the primary judge, he did not participate in the hearing. Dominic also did not participate in the appeal. Decision of the primary judge 1. The primary judge stated at the outset of her judgment that she accepted both Mrs Miraki and Joshua as witnesses of truth. She noted that it was common ground that the three instalments for the home furnishings had been paid (either by Mrs Miraki or by Barton Contractors) and that it was not controversial that the home furnishings were never received. Accordingly, her Honour accepted at [32] that there had been a total failure of consideration (on the case confined to the home furnishings). 2. The primary judge said at [33] that the real issues were "whether the monies were paid by Barton or [Mrs Miraki], whether the monies were paid to [Joshua or Dominic], and whether [Joshua and Dominic] were jointly operating a business, and are accordingly jointly and severally liable as one acting as the agent for the other". Her Honour also considered the issue raised by Joshua under the Minors (Property and Contracts) Act. 3. The primary judge accepted Mrs Miraki's submission that it was irrelevant whether the money was paid by her or Barton Contractors. Her Honour held that the payments were the consideration for the home furnishings ordered and that Mrs Miraki was entitled to restitution of the three instalments: at [36]. Although she did not refer to it expressly, in reaching that conclusion her Honour evidently accepted a submission by Mrs Miraki (based on the decision of the High Court in Roxborough) that it did not matter that the payments were made by a third party because they were appropriated to performance of Mrs Miraki's (alleged) contract and, as between her and Joshua or Dominic, she had the greater right to the money. That finding is the subject of a notice of contention filed by Joshua. 4. The primary judge did not accept Mrs Miraki's contention that Joshua and Dominic were operating a business together, nor that one was acting as the agent of the other. Her Honour found at [42] that Dominic was running and operating the business and that Joshua was "simply assisting his father" and was at all times under his father's control and direction. 5. Having rejected the contention that Joshua and Dominic were running the business together, her Honour accepted that the two instalments paid into the American bank account were for the benefit of Dominic, commenting that there was no evidence that they were for the benefit of Joshua: at [43] and [46]. 6. The primary judge accepted that the third instalment was different, noting at [47] that it was paid into Joshua Griffith's account at his direction whilst he was a minor. Her Honour considered the argument invoking the Minors (Property and Contracts) Act in that context and expressed her conclusion in a rolled-up way at [55] as follows: "I am satisfied that there is not a presumptively binding contract between the plaintiff and Joshua. As such there can be no legal liability upon him to repay the money because it was an act done by Dominic, and to the extent that Joshua was involved in such conduct, he did not receive any benefit from the money paid in any of the three payments. Specifically, with regard to the third payment his conduct was such as to disavow the contract, particularly when the email and Joshua's evidence before me referred to a refund." 1. Her Honour entered judgment against Dominic Griffith in the sum of $116,279.91. That is more than the sum of the three instalments and may replicate an error in the written opening submissions provided by Mrs Miraki (although even if that is the case the amount is still slightly wrong). Restitution and the subsidiarity doctrine 1. Before turning to the grounds of appeal, it is helpful to return to the question of how Mrs Miraki's claim was ultimately put. 2. As already noted, the claim was initially pleaded in contract but was reframed as a claim in "unjust enrichment" in reply to Joshua's defence. If unjust enrichment was relied upon as a true alternative to the claim in contract, that is, only in the event that the court was not satisfied as to the existence of a contract with Joshua, there was no problem with that approach. However, if it was sought to be relied upon in the event that there was a contract between Mrs Miraki and Joshua but that it was not binding on him because of the application of the Minors (Property and Contracts) Act, restitution was arguably not available as a remedy. In The Varieties of Restitution at 98-99, Mr Jackman discusses an argument to that effect which was put but not determined by the majority in Roxborough. The proposition is that, if payments are made in discharge of a contractual obligation (as Mrs Miraki contended here), it is the contract that governs the parties' rights and obligations. 3. In Nikolic v Oladaily Pty Ltd [2007] NSWCA 252, upholding a decision rejecting a claim in restitution for the value of building works provided by the appellants, Mason P framed the principle in the following terms at [101] (Campbell JA and Handley AJA agreeing at [109] and [110]): "A second difficulty with the restitutionary claim stems from the principle that a claim of this nature cannot be made where a valid contract covers the field… This subsidiarity doctrine means that the contractual allocation of risk cannot be subverted by alleging a cause of action stemming from unjust enrichment covering the same conduct (see generally Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 545[75], 577[166]; Coshott v Lenin [2007] NSWCA 153)." 1. In Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 (published after the second edition of Mr Jackman's text), considering a restitutionary claim for quantum meruit by a builder, Kiefel CJ, Bell and Keane JJ (in dissent on this issue) said at [22]: "To allow a restitutionary claim for quantum meruit to displace the operation of the compensatory principle where the measure of compensation reflects contractual expectations would be inconsistent with what Gummow J described as the 'gap-filling and auxiliary role of restitutionary remedies' [46]. Similarly, from an American perspective, it has been said that 'the noncontractual remedy was originally allowed as a way to fill important gaps in contract remedies, providing compensation in damages that contract law now affords directly' [47]. Further, the restitutionary claim for quantum meruit cannot be supported on the basis that it is needed to prevent the defaulting party from being unjustly enriched because 'a party who is liable in damages is not unjustly enriched by a breach of contract and indeed is not enriched at all'." 1. As already noted, Mrs Miraki pleaded the unjust enrichment claim only against Joshua, not Dominic. In maintaining a claim against Dominic, she must be taken to have maintained the contention that there was a valid and enforceable contract with him. Further, she did not at any point formally abandon the contention that Joshua was a party to that contract. Accordingly, contrary to the position presented to the primary judge, it arguably did matter whether or not Mrs Miraki proved the existence of a contract to which Joshua was a party. 2. If Joshua was a party to the contract (and assuming he did not receive the benefit of the payments), the existence of a statutory impediment to its enforcement as against him arguably would not defeat the application of the principle discussed by Mr Jackman in his text. The authorities referred to in that discussion include the remarks of Brennan J (in dissent) in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 (Pavey) at 236-8 which were directed to a similar issue. His Honour said at 238: "An inability to sue on a contract provides no ground for imposing a quasi-contractual obligation inconsistent with the contractual obligation to pay remuneration, and the effect of the Statute [of Frauds] on the contractual obligation cannot be circumvented by substituting a corresponding quasi-contractual obligation. A subsisting contract is the source and charter of the rights and obligations of the parties, and the law cannot impose other rights and obligations either to vary the contractual provisions or to negative the effect which the Statute of Frauds has upon them." 1. The potential effect of the Minors (Property and Contracts) Act in the present case was not to invalidate the contract. Joshua's argument was that the "civil act", being the alleged contract between Mrs Miraki and Joshua, was "not binding" on Joshua because he was a minor at the time it was entered into: s 17 of the Act. Mr Jackman's argument would hold that the law could not impose an obligation on Joshua to make restitution if the imposition of that obligation circumvented the protective effect of the statute on an otherwise valid contract. The position might be otherwise if Joshua received the money for his own use, in which event a remedy in restitution might properly play a gap-filling or auxiliary role. However, the point was not taken and accordingly it is neither necessary nor appropriate to consider that interesting question any further. 2. I have already outlined the factual contentions underlying the claim as against Joshua. The two central questions of fact raised by those contentions were whether Joshua and Dominic were operating a business together in which each was acting as the agent of the other and, if not, whether Joshua obtained a benefit from any of the payments. 3. As already noted, the legal significance of the contention that the two men were in business together was not made clear. It was never pleaded. The statement of claim alleged that each was a "purported" agent for the company, not that each was the agent of the other. That allegation emerged in the written opening submissions, where it was said that Dominic was liable if the two men were operating a business together, "for one was acting as the agent of the other and accordingly they are jointly and severally liable". It was also submitted in that document that Joshua's claim that the money was received by Dominic "does not matter if they were both operating the business", but that was never pleaded as an element of any claim in restitution. 4. Although the parts of Mrs Miraki's affidavit seeking to prove the existence of an agreement were not read (following objections as to the form of that evidence), it could hardly be doubted that the placement of an order for goods and the issue of an invoice requesting payments for those goods resulted in an agreement for the supply of the goods. However, that was not the primary case pursued against Joshua. During the argument that resulted in the ruling that the case was confined to the first three of the four payments, counsel for Mrs Miraki said: "I thought I made it pretty clear that my client was making claim to all the payments that were [paid] into Joshua Griffith's account and my case is that I don't need to prove the contract to get those payments back." 1. The submission that Mrs Miraki did "not need to prove the contract" may have entailed an element of prevarication. She did not at any point formally abandon that claim. If it was intended to be abandoned, the ongoing significance of the contention that the two men were running a business together was not made clear. Perhaps it was relied upon as an element of the unjust enrichment claim. The argument may have been that, if they were in business together, a benefit to the business was a benefit to Joshua. In any event, the primary judge rejected the contention. A number of the grounds of appeal are directed to the correctness of that finding or the fairness of the process by which it was reached. 2. As explained above, the basis for the restitutionary claim was also unclear, or at least changed during the conduct of the case. The opening submissions to the primary judge foreshadowed a simple case that the person who received the money was Joshua. The submissions cited a passage from the judgment of the plurality in Roxborough at [20] which gives the example of "prepayment for goods that were never delivered" as a clear instance of a duty to make restitution. However, in that example, it is assumed that the relevant benefit giving rise to the duty to make restitution is that the prepayment was made to the person from whom restitution is sought. In closing submissions to the primary judge, counsel for Mrs Miraki agreed that the first two payments were "not paid into the bank account of [Joshua] on any view of the world". In a response that was so brief as to be dismissive, he said "that's why I said that the payments [were] made to the New York account" [at Joshua's request]. He contended that that was a sufficient basis to find that Joshua obtained the benefit of those payments; because they were made at his direction. 3. Accordingly, by the close of the case, it appears Mrs Miraki was relying on different grounds for the restitutionary claim according to the different classifications of the payments made. Grounds of appeal 1. The amended notice of appeal filed in Court at the hearing contains four substantive grounds of appeal. Ground 1 contends that Mrs Miraki's case was "not determined on the merits" and specifies six disparate points in support of that contention including complaints about alleged failures to deal with aspects of Mrs Miraki's case, complaints about the primary judge's reasoning process and one complaint of a failure to give reasons. The ultimate submission was that Mrs Miraki satisfied the requirement for an order for a new trial specified in r 51.53(1) of the Uniform Civil Procedure Rules because the errors were such as to occasion "a substantial wrong or miscarriage": cf Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38]. 2. A number of the grounds of appeal are directed to the correctness of the factual finding that the two men were not running the business together or the fairness of the process by which that finding was reached. Mrs Miraki's written submissions in the appeal were otherwise directed to the issue of benefit organised according to the different classifications of the payments made. It is convenient to adopt the same course. Whether Joshua and his father were running the business together 1. Joshua's whole case was that his father controlled the business and the two bank accounts and that everything he (Joshua) had done was at the direction of his father, whom he described as "very controlling". 2. The primary judge accepted that case. I have already referred to her Honour's finding at [42] but it is appropriate to set out the whole of the relevant passage: "I do not accept that the first and second defendants were operating a business together, nor that one was acting as the agent of the other. I accept that Dominic was running and operating the business known as Dominic Gerard Group De Luxe Limited. I also accept that Joshua was simply assisting his father with respect to transactions executed by the company with its customers, including the plaintiff. I accept that Joshua was, at all material times, under the control and direction of Dominic." 1. The judge's acceptance of that case reflected an acceptance of Joshua's evidence. At [44] of the judgment, her Honour said: "The first defendant was resolute in his evidence that he was at all times under the control and direction of his father. He was also firm in his evidence that the emails he sent to the plaintiff with regard to these transactions were done solely at the direction of his father when he was a minor. He was not cross-examined about this by his father." 1. Grounds 2 and 3 challenge the correctness of those findings. Ground 2 is: "Her Honour erred at [42]: (a) in finding that both respondents were not operating a business together and that one was not acting as the agent of the other; (b) in finding that the first respondent was simply assisting the second respondent in running and operating a business; (c) in finding that the first respondent was under the control of the second respondent; (d) in not giving adequate reasons for the above conclusions. 1. Ground 3 is: Her Honour erred at [44]: (a) in finding that the transactions were entered into solely at the direction of Dominic Griffith; (b) not giving reasons for this conclusion. 1. It may be accepted that her Honour's reasons were sparse but the evidence as to the operation of the business and the level of control exercised by Dominic was all one way. Really the only task in deciding that factual question was to decide whether to accept Joshua's evidence. The primary judge accepted Joshua as a witness of truth. No basis has been established for this Court to take a different view. I have read his evidence carefully. It was careful, coherent and measured. There is nothing inherently implausible about his account that his father was controlling and that Joshua did what his father asked and had no autonomy in the running of the business. 2. It is not fair to say that the primary judge gave no reasons for her conclusion at [44]. Her reason was that she accepted Joshua's evidence. He repeatedly said that the transactions were entered into solely at the direction of Dominic. The judge's acceptance of that proposition was a credit-based finding. It was not suggested in the appeal that Joshua's evidence on that issue was glaringly improbable or contradicted by any objective evidence. On my reading, his evidence was perfectly plausible. The primary judge had the benefit of seeing Joshua give evidence. No basis has been established for interfering with her Honour's assessment of that evidence based on the content of that evidence. 3. As already noted, Mrs Miraki contends that there should be a new trial on the grounds that the accumulation of errors contended in ground 1 was such as to have occasioned substantial wrong or miscarriage. It is convenient at this point to consider grounds 1(b), (c) and (e), which are directed to the primary judge's finding concerning the conduct of the business. 4. It is necessary first to explain aspects of Dominic's participation in the hearing. He was of course a defendant to the same claim as his son. He filed a defence in which, unlike Joshua, he admitted that he was in the business of supplying luxury merchandise, admitted the existence of the pleaded agreement (but said the agreement was with the company) and admitted that payments were made in accordance with the pleaded agreement. As already noted, he was unrepresented at the hearing. 5. The transcript of Mrs Miraki's evidence records "no cross-examination by second defendant [Dominic]". However, after Mrs Miraki's case was closed, and during the cross-examination of Joshua by her counsel, counsel asked the judge to inquire whether Dominic wanted to examine Mrs Miraki, even though the time for doing so had long passed. The question appears to have been raised out of abundance of caution at a time when Mrs Miraki wished to leave the hearing. The following exchange then took place: HER HONOUR: Mr Griffith, because you're a party to these proceedings, you have a right to cross-examine any of the witnesses. Before I excuse the plaintiff, would you like to ask her any questions? DOMINIC: Look, I could settle this with the Mirakis personally. HER HONOUR: No, no, no, no. Please don't – please— DOMINIC: I take full responsibility. That's all I'd like to say. HER HONOUR: All right. DOMINIC: I've always tried to reach out to them. HER HONOUR: Okay. Just please – Mr— DOMINIC: I don't know what more to say. 1. The judge explained that settlement was not an issue for her and the exchange continued: HER HONOUR: And do you want to ask any questions of your son? DOMINIC: No questions for my son. HER HONOUR: Thank you. DOMINIC: He's a good boy. 1. During closing submissions, the judge asked counsel for Joshua what to make of Dominic's statement that he took "full responsibility". He responded with some caution, noting that Dominic was unrepresented, and reminded the judge that there were some issues in the proceedings that needed to be determined before Dominic could be found liable. However, his substantive response to the question was to note that, while Dominic's statement "I take full responsibility" was not sworn evidence, it was consistent with the defence filed by Dominic. The burden of the submission as I read that passage of the transcript was that it was a statement that could be relied upon as against Dominic, not Joshua. 2. Grounds 1(b), (c) and (e) seek to impugn the judge's treatment of those matters. Ground 1(b) is: "Her Honour at [52] based her reasoning on a statement made by [Dominic Griffith] sitting on his bed to the effect that he took full responsibility as if it was evidence in support of the first respondent's case when it was neither evidence nor a matter capable of rationally affecting the case against [Joshua]." 1. The primary judge said at [52]: "After the cross examination of the witness by counsel for the plaintiff, the Court adjourned for lunch. Upon returning to the bench I offered Dominic the opportunity to cross-examine Joshua. He declined to do so but stated (T page 58) "I take full responsibility. That's all I'd like to say." Whilst this apparent admission by Dominic as recorded does not have the same import as sworn evidence, it does mesh with the version of events as described by Joshua. His evidence included statements that his father had done the wrong thing, and that his father should give the money back." 1. I am not persuaded that this statement discloses error. As submitted by Joshua, the primary judge expressly did not treat the statement as evidence but simply observed its consistency with Joshua's version of events. The judge's remarks at [52] go no further than to set out the course of the hearing and the respective positions adopted by the parties. The insurmountable difficulty for Mrs Miraki in challenging the finding that the business was Dominic's and that Joshua merely acted at Dominic's direction is that it was squarely based on Joshua's evidence in the trial, which her Honour accepted and as to which no forensic challenge of the kind required to impugn credit-based findings has been made. 2. It is convenient to consider grounds 1(c) and 1(e) together. Ground 1(c) contends that the primary judge based her reasons at [44] on the fact that Joshua was not cross-examined by Dominic "when this is not a matter rationally affecting Mrs Miraki's case" against Joshua. 3. Ground 1(e) is: "Her Honour gave weight to a matter at [56] that the first respondent was legally represented when he filed his original defence which was consistent with what the second respondent said 'at page 58', though the second defendant did not give evidence and it is not clear to what 'at page 58' refers." 1. The point made in the last line is captious. It is clear that the reference to "the comment made by [Dominic] at page 58" is a reference to her Honour's discussion at [52] (set out above) of what Dominic had said as recorded at page 58 of the transcript, the very remark relied upon as the foundation of ground 1(b). 2. The complaints in grounds 1(c) and 1(e) overlook the fact that the judgment was concerned with Dominic's liability as well as Joshua's. Joshua's evidence not only exculpated himself, it inculpated his father. In circumstances where both were sued, it was relevant to the claim against Dominic to note that he did not cross-examine Joshua. 3. Dominic's remark that he took "full responsibility" must be assessed in its context, as his explanation for not wishing to cross-examine Mrs Miraki. The issues having arisen in that way, I would understand [56] of the judgment as the judge's explanation of her reasons for entering judgment against Dominic or, at the very least, an observation that the conduct of Dominic's case was not inconsistent with the conclusion that there should be judgment in favour of Joshua. I am not persuaded that any of the challenges to the judge's conclusions at [42] and [44] is made good. Whether Joshua obtained a benefit from the payments into the New York account 1. Ground 1(a) is: "Her Honour at [38] of the reasons for judgment recorded an agreement between the parties to the effect that Mrs Miraki made payments to an account located in America and as such the payments were made to the second respondent who was residing and working in New York at that time, when there was no such agreement and Mrs Miraki's case was that the account was not the first respondent's but that he obtained the benefit of the payment because he directed the payments to be made into the account (T to page 91.34), which was in the name of a company that did not exist." 1. The primary judge said at [38]: "The parties agree that the first two payments were into an account located in America and as such were payments to the second defendant who was residing and working in New York, America at the relevant time." 1. The statement that Dominic was residing and working in New York appears to be mistaken but that is inconsequential. The significant matter is the reference to agreement on the part of Mrs Miraki that the payments made into the New York account were payments to Dominic. That was not Mrs Miraki's position. As already explained, her argument was that Joshua received a benefit from those payments because they were made "at his direction". 2. Is does not appear that her Honour was given much assistance on the question whether that was a benefit in the required sense. I cannot be confident in saying that because it appears counsel for Mrs Miraki handed up a written outline of "facts and contentions" which has not been put before this court. The proposition was certainly not developed in any helpful way in oral argument. The submission was this: "there is no question that Mr Joshua Griffith derives a benefit. Well the inference is available because he directed the money to be paid to an overseas account." 3. In his submissions in the appeal, counsel for Mrs Miraki sought to support the contention that payment "as directed" is a benefit to the person giving the direction by referring first to the decision of the Western Australia Court of Appeal in ABB Power Generation v Chapple (2001) 25 WAR 158; [2001] WASCA 412 at [20] (Murray J, Templeman J and Einfeld AJ agreeing at [39] and [55]): "As the judgments of the majority in Pavey make clear, what is a "benefit" in the hands of the defendant must be judged objectively from the position of the defendant. There is no need for the benefit to be purely of an economic kind or one which is capable of being reduced to a monetary value. A requested or accepted service will generally be accepted by the Court as being of benefit to the defendant and will certainly prevent the plaintiff from being regarded as a mere volunteer, providing services in effect as a gift: see also Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221 (Brenner) per Byrne J at 257-9." 1. It is by no means clear that payment for goods as directed in an invoice is in the nature of "a requested or accepted service" of the kind contemplated in the proposition drawn from the decision in Brenner. In that case, Byrne J said at 257: "But where a person requests another to do something, it is not unreasonable for the law to conclude that the former sees some benefit in its performance, however wrong this view may be on an objective basis and for the law to act upon the perception of the recipient." 1. I do not think those remarks are applicable in the present case, where the supposed direction was simply a direction as to the required method of payment for instalments required to be paid in discharge of a contractual obligation. 2. Finally, Mrs Miraki relied on the decision of McDougall J in BBB Constructions v Aldi Foods [2010] NSWSC 1352 at [368]: "The decided cases suggest that (although the categories of benefit are still the subject of debate, and are certainly not to be regarded as closed), "benefit" may be found in the payment of money to or at the direction or for the benefit of the other; the provision of goods or services; or the performance of work and labour." 1. All of those statements must be understood in the context of the first proposition cited from ABB Power Generation v Chapple, drawn from Pavey, that the question of "benefit" in the hands of the defendant must be judged objectively from the position of the defendant. It is also established that that question is to be assessed as a matter of substance rather than form. For that proposition, Joshua relied on the decision of the High Court in ANZ Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 (ANZ) at 673-674: "The prima facie liability to make restitution is imposed by the law on the person who has been unjustly enriched. In the ordinary case of a payment of money, that person will be the payee. However, when the person to whom the payment is directly made receives it as an intermediary (e.g. as agent for a designated principal), there may be uncertainty about the identity of the actual recipient of the benefit at the moment of payment. If the circumstances are such that the intermediary is to be seen as being himself the initial recipient of the benefit, his prima facie liability will ordinarily be displaced when he has handed the money received on to the person for whom he received it. In such a case he has, in the event, not retained 'the benefit of the windfall' but been 'a mere conduit-pipe' (see per Collins M.R., Continental Caoutchouc and Gutta Percha Co. v. Kleinwort, Sons, and Co. (1904) 9 Com Cas 240 at 248) and 'the only remedy is to go against the principal' (per Greene M.R., Gowers v. Lloyds and National Provincial Foreign Bank Ltd (1938) 1 All ER 766 at 773)". 1. Viewed as a matter of substance, it could not be said that Joshua received a benefit from the mere fact of specifying the New York account on the invoice as one acceptable method of payment. He gave evidence that he did so at Dominic's direction and the primary judge accepted that evidence. Her Honour also found that the payments into the New York account were payments for which Dominic obtained the benefit "as it was paid into the account of the company". 2. In my view, ground 1(a) is not made out. Whether Joshua obtained a benefit from the payment of the third instalment into an account in his name 1. It is not clear which ground of appeal is directed to the third payment but submissions were directed to it and so I will address it. 2. Mrs Miraki relied on the fact that, in his evidence, Joshua agreed with the following proposition: "Do you agree that end of July 2016 you requested Mrs Miraki to make further payments directly into your personal bank account?" 1. In the appeal, Mrs Miraki submitted that she discharged her onus concerning the third instalment by proving that Joshua asked for and received the payment into his personal account. It was submitted that "the claim is a claim at law" and that, "as recipient of the money, Joshua Griffith became the legal owner of the money". Four authorities were cited for that proposition: Black v S Freedman & Co (1910) 12 CLR 105; [1910] HCA 58, Ilich v R (1987) 162 CLR 110; [1987] HCA 1 at [24], Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 17E-F, and Robb Evans of Robb Evans & Associates v European Bank Ltd (2004) 61 NSWLR 75; [2004] NSWCA 82 at [109]-[118]. 2. None of those authorities holds that the fact of legal ownership of money is enough, of itself, to establish an obligation to make restitution. Nor do they answer the proposition explained above that the critical question is whether Joshua received the benefit of any payment into his account or whether he was "a mere conduit pipe" such that "the only remedy is to go against the principal" (here, Dominic). In ANZ, in the passage preceding the passage set out above, the Court explained that the basis of the common law count of money had and received is the existence of facts giving rise to "a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment." The discussion continues: "the action itself is not for the enforcement of a trust or for tracing or the recovery of specific money or property. It is a common law action for recovery of the value of the unjust enrichment and the fact that specific money or property received can no longer be identified in the hands of the recipient or traced into other specific property which he holds does not of itself constitute an answer in a category of case in which the law imposes a prima facie liability to make restitution. Before that prima facie liability will be displaced, there must be circumstances (e.g. that the payment was made for good consideration such as the discharge of an existing debt or, arguably, that there has been some adverse change of position by the recipient in good faith and in reliance on the payment) which the law recognizes would make an order for restitution unjust." 1. Here, the circumstance that would make an order for restitution unjust is the fact, as found by the primary judge, that Joshua did not receive the benefit of the payments. He was a "mere conduit" of funds received for the benefit of Dominic. 2. Mrs Miraki submitted that the primary judge made a finding at [42] that Joshua was not Dominic's agent. However, that finding responded to the submission that they were running the business together. Plainly, in assisting his father in the business by sending the invoice, Joshua acted as the agent of his father, but it does not follow that he is liable in restitution for a payment of which his father obtained the benefit. The primary judge found at [55] that Joshua "did not receive any benefit from the money paid in any of the three payments". It has not been established that there is any error in that conclusion. The later payment into Joshua's account 1. The fourth payment (the payment of $22,487 on 12 September 2016) is the subject of ground 1(f): "Her Honour at T page 88.16 to .25 erred in not permitting Mrs Miraki to run a case which was pleaded." 1. The judge's ruling was expressed as follows: "No, I am not going to allow you to reopen the case and add that in. The case that you opened on, the manner in which I perceived the case being run was in relation to the three payments for the home furnishings only. [Counsel for Joshua] is correct. He was very specific in his cross-examination of the plaintiff yesterday that she came to Court to receive the home furnishings and I can take you to the transcript. But that was very squarely put. The first defendant has run its case on that basis, it is too late now." 1. It may be accepted that the mere fact of a concession by Mrs Miraki in the witness box may not necessarily have precluded her from running the pleaded case. The difficulty is that there was considerable confusion in the manner in which the case was pleaded and run as to the precise amounts claimed by her. The statement of claim claimed the sum of $152,517.28 comprising $114,268.02 representing the Australian dollar cost of the three instalments of €24,765.50 paid towards the home furnishings listed in the invoice dated 1 June 2016 together with the following additional amounts: * $28,749.26 "being €19,362" for bathroom furnishings; * $4,500 for dining accessories; and * $5,000 for coffee cups. 1. Mrs Miraki's affidavit evidence did not exactly match the amounts claimed in the statement of claim. She deposed (incorrectly) that she had made three payments matching the three instalments for the home furnishings into Joshua's bank account together with an additional payment of $986 on 16 October 2016 the reason for which was not explained. She also deposed to having made further payments as follows: * "approximately $28,749.26 being of €19,362" on 12 September 2016 for the bathroom accessories (that figure was wrong because it included the later amount of $6,262.26 referred to next; the amount paid was $22,487); * an additional $6,262.26 for dining room accessories on 22 September 2016 (at least some of which she admitted in evidence she had received); * a "further payment" for the coffee cups of $5,000 (in fact paid earlier, in around January 2016; it appears Mrs Miraki received the coffee cups but she said they were the wrong ones). 1. As in the pleading, the affidavit did not assert that those items had never been received; only that they had not been received "by the agreed date", the claim at that stage being confined to a claim in contract. 2. The written outline of submissions provided to the primary judge by way of opening of Mrs Miraki's case only compounded the confusion. The outline referred only to the promise made by Mrs Miraki on 1 June 2016 to pay the sum of €99,062 for the home furnishings; there was no reference to any of the other accessories. Further, instead of identifying the payments made by reference to the kind of item ordered (as had occurred in the pleading and the affidavit), the submissions identified amounts only by reference to how they were paid. Thus it was stated that, "of the purchase price" (which had been identified as the sum of €99,062 for home furnishings), the sum of $78,676.77 had been paid into a New York bank account "at the direction of" Joshua (that amount does not reconcile with the evidence, which showed two payments transferred to that account in the sum of $76,634.77). The submissions contended that "another sum of $67,368.51" had been paid into Joshua's personal account at his direction, of which $29,735.25 was accepted by Joshua after he turned 18. 3. The impression created by the opening submissions was that all of the amounts claimed were payments relating to the home furnishings listed in the invoice dated 1 June 2016. The sum of the amounts claimed in the submissions is $146,045.28 (the author got $146,105.28, perhaps as a result of erroneously adding back two fees of $30 for the international money transfers into the New York account which had correctly been deducted in the amounts specified in the statement of claim). 4. When the issue was raised in closing submissions, instead of assisting the primary judge by acknowledging those errors and providing a clear explanation of the true position, counsel accused his opponent of "shenanigans". I am not persuaded that there was any disingenuity in the submission by counsel for Joshua that he understood the claim to have been narrowed in the terms of the opening submissions. In my view, the conclusion reached by the primary judge that the claim must be taken to have been narrowed by the conduct of the case was well open to her Honour. Ground 1(f) is not made out. 5. Even if that is wrong, the evidence establishes that, as with the third instalment, the fourth payment was used substantially for the benefit of Dominic and the amounts debited by Joshua were de minimis. 6. In light of the foregoing conclusions, it is not necessary to determine grounds 4 and 1(d) concerning the application of the Minors (Property and Contracts) Act. 7. Nor is it necessary to determine the notice of contention, which sought to affirm the decision on a ground other than those relied upon by the primary judge, namely, that Mrs Miraki was not entitled to restitution of amounts paid by the company, Barton Contractors. I would, however, make one observation about that contention. The evidence clearly established that all of the relevant payments were made from the account of that company. The primary judge accepted Mrs Miraki's argument based on the decision in Roxborough that the source of the payment did not matter if the payments were appropriated to the discharge of her contractual obligation. However, the position in Roxborough was quite different. There, the point was that the source of the payment was the plaintiff's own funds despite the burden of the excise in question having been passed on to consumers in an economic sense: at [23] and [25]. Joshua's point is that the remedy of restitution is not available in circumstances where the source of the payments was not Mrs Miraki's own funds and in the absence of evidence that she bore the burden of those payments. There is some support for that argument in one of the decisions cited by Mrs Miraki: Nikolic v Oladaily Pty Ltd [2007] NSWCA 252 at [97]. 8. In any event, for the reasons I have given, the order I propose is that the appeal be dismissed with costs. ********** Amendments 29 October 2021 - Typographical error in headnote 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: 29 October 2021