Category Archives: Remedies

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5 | 4 March 1987

ON THIS DAY IN 1987, the High Court of Australia delivered Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 (4 March 1987). http://www.austlii.edu.au/au/cases/cth/HCA/1987/5.html A builder was entitled to recover remuneration for building work done despite there being no written enforceable contract because the client had accepted the benefit and therefore was obliged under the doctrine of unjust enrichment or restitution to pay fair and just compensation for the benefit accrued.

Section 45 of the Builders Licensing Act 1971 (NSW) (which provided that a building contract is not enforceable unless in writing and signed) did not prevent a builder from bringing an action in quantum merit (“as much as he has earned”) for the work done and materials supplied.

A claim based upon quantum merit does not require there to be an implied contract. A claim in quantum meruit is based upon restitution or unjust enrichment.

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The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 | 28 October 2008

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

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Bofinger v Kingsway Group Limited [2009] HCA 44 | 13 October 2009

ON 13 OCTOBER 2009, the High Court of Australia delivered Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009).

The High Court held that guarantors of a secured loan may recoup contributions they made to the repayment of the loan to a first mortgagee from the remaining surplus securities before the surplus is applied to repay any second or subsequent mortgagee with security over the same property, even if the guarantors have also guaranteed the second or subsequent loans. The guarantors were found the be subrogated to the first mortgagee. Upon repayment of the first loan, first mortgagee had a fiduciary obligation to in good conscience provide the guarantors with the surplus funds and remaining properties.

On the principle of unjust enrichment and how it applies to subrogation, Gummow, Hayne, Heydon, Kiefel and Bell JJ said at [85]:

“The appeal to this Court in Friend v Brooker [63], which concerned the equitable doctrine of contribution, was correctly conducted on the footing that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. The same is true of the equitable doctrine of subrogation. The oral submissions for the Solicitors correctly recognised this.”

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd | High Court of Australia | 9 August 1949

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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Bofinger v Kingsway Group Limited [2009] HCA 44

ON 13 OCTOBER 2009, the High Court of Australia delivered Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009).

The High Court held that guarantors of a secured loan may recoup contributions they made to the repayment of the loan to a first mortgagee from the remaining surplus securities before the surplus is applied to repay any second or subsequent mortgagee with security over the same property, even if the guarantors have also guaranteed the second or subsequent loans. The guarantors were found the be subrogated to the first mortgagee. Upon repayment of the first loan, first mortgagee had a fiduciary obligation to in good conscience provide the guarantors with the surplus funds and remaining properties.

On the principle of unjust enrichment and how it applies to subrogation, Gummow, Hayne, Heydon, Kiefel and Bell JJ said at [85]:

“The appeal to this Court in Friend v Brooker [63], which concerned the equitable doctrine of contribution, was correctly conducted on the footing that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. The same is true of the equitable doctrine of subrogation. The oral submissions for the Solicitors correctly recognised this.”

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The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9)

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

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Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61

ON 23 MARCH 2001, the NSW Court of Appeal delivered Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 (23 March 2001).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2001/61.html

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Pavey & Matthews Pty Ltd v Paul [1987] HCA 5

ON 4 MARCH 1987, the High Court of Australia delivered Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 (4 March 1987).

http://www.austlii.edu.au/au/cases/cth/HCA/1987/5.html

A builder was entitled to recover remuneration for building work done despite there being no written enforceable contract because the client had accepted the benefit and therefore was obliged under the doctrine of unjust enrichment or restitution to pay fair and just compensation for the benefit accrued.

Section 45 of the Builders Licensing Act 1971 (NSW) (which provided that a building contract is not enforceable unless in writing and signed) did not prevent a builder from bringing an action in quantum merit (“as much as he has earned”) for the work done and materials supplied.

A claim based upon quantum merit does not require there to be an implied contract. A claim in quantum meruit is based upon restitution or unjust enrichment.

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Re Lionel Brown and Marlene Benbow v Jam Factory Proprietary Limited and LJ Hooker (Vic) Limited [1981] FCA 35

Re Lionel Brown and Marlene Benbow v Jam Factory Proprietary Limited and LJ Hooker (Vic) Limited [1981] FCA 35; (1981) 53 FLR 340 Vg (26 March 1981).

http://www.austlii.edu.au/au/cases/cth/FCA/1981/35.html

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R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33

ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).

http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html

A court has a discretion to withhold the granting of a writ of mandamus:

“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).

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