Henderson's Automotive Technologies Pty Ltd (in liq) v Flaton Management Pty Ltd

(2011) 32 VR 539; [2011] VSCA 167

Victorian Court of Appeal

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Interrogate

Catchwords

1. Restitution
2. › Unjust enrichment
3. › Money paid count
4. › Whether unjust enrichment is a directly applicable principle of law
5. › Primacy of contractual and legal relationships
6. › Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635
1. Restitution
2. › Money paid
3. › Work and labour done or money paid at request of another
4. › Whether claim properly characterised as traditional money paid count rather than unjust enrichment
5. › Distinction between money paid count and unjust enrichment as cause of action
1. Set-off
2. › Statutory set-off in insolvency
3. › Mutual credits and mutual debts
4. › Requirement of mutuality
5. › Trustee acting in different capacities
6. › Whether mutuality satisfied where trustee of different trusts
7. › Corporations Act 2001 (Cth), s 553C
8. › Bankruptcy Act 1966 (Cth), s 86
1. Set-off
2. › Novation
3. › Surety's right of indemnity
4. › Contingent liability becoming fixed after liquidation
5. › Whether payment by surety after liquidation gives rise to set-off

Quick Take

A claim for restitution based on money paid at the request of another must be pleaded and analysed as a traditional money paid count, not as a direct application of unjust enrichment principles. The conceptual error of treating unjust enrichment as a directly applicable principle (rather than a unifying concept) will lead to misdirected analysis focusing on 'benefit' and 'expense' rather than on the contractual and legal arrangements between the parties. Where a trustee acts in different capacities in relation to different trusts, the requirement of mutuality for statutory set-off under s 553C of the Corporations Act 2001 (Cth) requires careful analysis of the capacity in which each relevant transaction was undertaken.