Recent Cases

Carpenter v Morris [2023] NSWCA 154 (05 July 2023) (Bell CJ, White JA and Simpson AJA)


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