Carpenter & Anor v Morris & Anor [2023] NSWCA 154

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carpenter & Anor v Morris & Anor [2023] NSWCA 154 Hearing dates: 24 October 2022 Decision date: 05 July 2023 Before: Bell CJ at [1]; White JA at [7]; Simpson AJA at [97] Decision: (1) Appeal allowed in part. (2) Set aside the orders of the court below made on 23 December 2021 so far as they concern the appellants and the respondents. (3) Set aside the orders made on 1 February 2022 so far as they concern the appellants and the respondents. (4) Within 14 days the appellants file and serve written submissions on the matters referred to at par [95]. (5) Within 14 days thereafter, the respondents file and serve written submissions on the matters referred to in para [95]. (6) Any submissions in reply be filed and served by the appellants 7 days thereafter. Catchwords: RESTITUTION – Common counts – Money had and received to the use of the first respondent – Where second appellant and respondent conducted partnership for quarrying, marketing, and sale of gabbro – Where first respondent received additional payments out of partnership moneys from financial manager of quarry without knowledge and consent of appellants – Where respondents pleaded no defence to restitutionary liability – Whether prior opportunity to plead breach of fiduciary obligation and seek equitable remedies precludes maintenance of action for money had and received – Whether unauthorised receipt of moneys belonging to partnership by person who is not a bona fide purchaser for value without notice falls within established category of restitutionary liability – Whether unauthorised receipt by third-party of partnership moneys is a qualifying or vitiating factor – Held in absence of pleaded defence that appellants entitled to restitution of moneys received by first respondent CONTRACTS – Implied terms – Terms implied in fact – Where appellants allege existence of two parol contracts generally relating to extraction of gabbro from quarry and marketing and sale of extracted gabbro by respondents – Where appellants allege terms implied in those contracts obliged respondents to ensure acquisition of approvals as and when necessary for conduct of quarry on land – Where commercial context inconsistent with terms of parol contracts as alleged by appellants – Whether implied term asserted by appellants necessary for reasonable or effective operation of contracts – Held that such implied term not necessary nor reasonable Legislation Cited: Civil Procedure Act 2005 (NSW), s 63 Limitation Act 1969 (NSW), ss 14, 15 Mining Act 1992 (NSW), s 11 Mining Amendment Act 2008 (NSW), Sch 1, cll 2 and 273 Cases Cited: Attorney General v Perry (1773) 2 Comyns 481; 92 ER 1169 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283; [1977] UKPCHCA 1 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 25 Calland v Loyd (1840) 6 M & W 26; 151 ER 307 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Farah Construction Pty Ltd v Say Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fistar v Riverwood Legion and Community Club Ltd (2016) 91 NSWLR 732; [2017] NSWCA 81 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 97 ALJR 40 Sims v Commonwealth of Australia (2022) 109 NSWLR 546; [2022] NSWCA 194 Texts Cited: E Bullen & S Leake, Bullen & Leake's Precedents of Pleadings, (3rd ed 1868, Stevens and Sons) R Goff & G Jones, The Law of Unjust Enrichment (9th ed 2016, Sweet & Maxwell) K Mason, J W Carter & G J Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed 2021, LexisNexis) Category: Principal judgment Parties: Jimmie Carpenter (First Appellant) Tastex Pty Ltd (Second Appellant) Colin George Morris (First Respondent) Central West Granite Pty Ltd (Second Respondent) Representation: Counsel: S Golledge SC with P Barham (Appellants) W G Muddle SC with P Tierney (Respondents)