Specialty Fashion Group v Muirhead Nominees Pty Ltd [2009] NSWSC 823

New South Wales Supreme Court

CITATION : Specialty Fashion Group v Muirhead Nominees Pty Ltd [2009] NSWSC 823

HEARING DATE(S) : 5 August 2009

JUDGMENT DATE : 18 August 2009

JURISDICTION : Equity

JUDGMENT OF : Tamberlin AJ

(i) Order pursuant to r 13.1 of the Uniform Civil Procedure Rules 2005 (UCPR) for summary judgment in favour of the plaintiff against the first defendant in the sum of $9,317,269.50 together with interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW) (CPA).

(ii) Order pursuant to r 13.1 of the UCPR for summary judgment in favour of the plaintiff against the third defendant in the sum of $6,307,950.00 together with interest pursuant to section 100 of the CPA.

(iii) Order pursuant to r 13.1 of the UCPR for summary judgment in favour of the plaintiff against the fifth defendant in the sum of $1,051,527.20 together with interest pursuant to section 100 of the CPA. DECISION : (iv) Direction pursuant of section 50 of the Evidence Act 1995 (NSW) that the plaintiff may adduce evidence of the contents of the invoices referred to in Exhibit 'HH-2' of the affidavit of Howard Herman in the form of the summaries referred to in paragraphs 20, 21, 22, 25 and 26 of the affidavit of Howard Herman sworn 26 June 2009.

(v) Order that the first, third and fifth defendants pay the plaintiffs costs.

(vi) Liberty to apply.

CATCHWORDS : PRACTICE AND PROCEDURE - summary judgment for money had and received - money paid under mistake as a consequence of fraud - whether payees aware of improper conduct - whether payees changed their position in good faith reliance on payments - EVIDENCE - affidavit verifying defence - whether there is any evidence to meet defence of change of position in good faith