Capitalink Pty Ltd v Withnall [2024] NSWCA 172

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capitalink Pty Ltd v Withnall [2024] NSWCA 172 Hearing dates: 27 June 2024 Date of orders: 19 July 2024 Decision date: 19 July 2024 Before: Bell CJ at [1]; Leeming JA at [84]; Stern JA at [89]. Decision: 1. Allow the appeal in part. 2. Set aside the orders of Abadee DCJ made on 7 December 2023 and, in lieu thereof, enter judgment for Capitalink Pty Ltd in the sum of $133,160.51, plus interest. 3. Order that the Respondent pay the Appellant's costs of the appeal and of the proceedings at first instance. Catchwords: APPEAL – whether argument sought to be run on appeal was outside the pleadings – whether the trial had been in part run outside of the pleadings such that the argument was available to be run on appeal CONTRACTS – breach of contract – damages – whether Appellant proved that it had or would suffer losses as a result of the breach – where some past costs of rectifying the breach were paid by family companies on the Appellant's behalf – restitution – whether Appellant was legally obliged to reimburse the family companies for the costs paid such that it could be said to have incurred losses – where other past costs of rectifying the breach were paid by a real estate agent from a trust account in the Appellant's name EVIDENCE – proof of loss – where no evidence led from principals of family companies – where documentary evidence of alleged understanding between family companies as to reimbursement for various payments lacking – whether a promise to repay could be implied – evidentiary inferences available RESTITUTION – third party payment of another party's debts – whether implied request to pay – whether implied promise to reimburse – evidence and drawing of inferences Legislation Cited: Evidence Act 1995 (NSW) s 136 Cases Cited: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Birmingham and District Land Co Ltd v London and North Western Railway Co (1886) 34 Ch D 261 Blatch v Archer (1774) 1 Cowp 63 CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54; (2022) 365 FLR 45 Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Cook's Construction Pty Ltd v Brown [2004] NSWCA 105; (2004) 49 ACSR 62 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 G v H (1994) 181 CLR 387; [1994] HCA 48 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Israel v Foreshore Properties Pty Ltd (in liq.) (1980) 54 ALJR 421 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lumbers v W Cook Builders Pty Ltd (in liq.) (2008) 232 CLR 635; [2008] HCA 27 O3 Capital Pty Ltd v WY Properties Pty Ltd (2016) 49 WAR 517; [2016] WASCA 82 Progressive Pod Properties Pty Ltd v AM Green Investments Pty Ltd [2012] NSWCA 225 Rialto Sports Pty Limited v Cancer Care Associates Pty Limited [2022] NSWCA 146 Robinson v Harman (1848) 1 Exch 850 Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 Shalhoub v Buchanan [2004] NSWSC 99 Sunbird Plaza Pty Limited v Maloney (1988) 166 CLR 245; [1988] HCA 11 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Tabcorp Holdings Limited v Bowen Investments Pty Limited (2009) 236 CLR 272; [2009] HCA 8 Way v Latilla [1937] 3 All ER 759 Texts Cited: IM Jackman, The Varieties of Restitution (2nd ed, 2017, Federation Press) JD Heydon, Cross on Evidence (13th ed, 2021, LexisNexis) RM Goode, Payment Obligations in Commercial and Financial Transactions (1st ed, 1983, Sweet & Maxwell) Category: Principal judgment Parties: Capitalink Pty Ltd (Appellant) Marc Douglas Withnall (Respondent) Representation: Counsel: