Alexiadis v Zirpiadis

(2013) 302 ALR 148; [2013] SASCFC 64

South Australia Full Court

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Interrogate

Catchwords

1. Equity
2. › Restitution
3. › Unjust enrichment
4. › Money had and received
5. › Total failure of consideration
6. › Whether failure of consideration can be established when purpose of payment is unknown
7. › Whether plaintiff must prove recognised unjust factor
1. Equity
2. › Restitution
3. › Unjust enrichment
4. › Illegality as defence
5. › Whether court should infer illegal purpose from rejection of parties' evidence
6. › Whether illegality necessarily precludes restitutionary relief
1. Administrative Law
2. › Judicial review
3. › Procedural fairness
4. › Hearing
5. › Whether judgment on unpleaded cause of action denies procedural fairness
6. › Whether course of trial gave sufficient notice
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Where trial judge has rejected testimony of both parties
5. › Whether appellate court may make its own findings on objective evidence
6. › Warren v Coombes principle

Quick Take

A plaintiff claiming money had and received on the basis of total failure of consideration must prove the purpose or condition of the payment and that it failed; the mere fact of payment and non-repayment is insufficient. Where a trial judge rejects the testimony of both parties as to the purpose of a payment, the court cannot presume that the payment was made for a purpose giving rise to an obligation to repay. The illegality defence in restitutionary claims requires careful consideration of the exceptions identified in Nelson v Nelson and is not to be applied in an absolute manner. The question of whether an appellate court should infer illegality where it was not pleaded or properly raised at trial, and where an unrepresented party was not advised of its significance, was left unresolved as between the majority and dissent.