Adrenaline Pty Ltd v Bathurst Regional Council

(2015) 97 NSWLR 207; [2015] NSWCA 123

NSW Court of Appeal

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Interrogate

Catchwords

1. Local Government
2. › Powers of councils
3. › Power to fix fees for services
4. › Whether general power to contract permits charging fees outside statutory fee-setting regime
5. › Anthony Hordern principle
6. › Local Government Act 1993 (NSW), Ch 15 Pt 10, ss 608, 610B, 610C, 610D, 610F
7. › Mount Panorama Motor Racing Act 1989 (NSW), s 5(2)(b), (c)
1. Statutory Interpretation
2. › Multiple sources of power
3. › Anthony Hordern principle
4. › Where statute confers power subject to qualifications and conditions
5. › Whether general expressions read as subject to those qualifications
6. › Relevance of belief of donee of power as to source of power exercised
1. Restitution
2. › Recovery of money paid under mistake
3. › Defence of good consideration
4. › Whether recipient entitled to retain payments where payer received benefit for which it bargained
5. › Whether defence available where contract unenforceable
1. Appeal
2. › Notice of contention
3. › Whether respondent permitted to raise defences not run at trial
4. › Defence of good consideration as pure question of law
5. › Defence of change of position requiring factual inquiry
6. › When appellate court should decline to decide question of law not fully argued below

Quick Take

A local council's general power to contract does not permit it to charge fees for services outside the mechanisms established by Chapter 15 Part 10 of the Local Government Act 1993 (NSW), even where fees are negotiated as part of a commercial agreement. However, a claim for restitution of fees paid under mistake will fail where the payer received good consideration — the benefit of the services for which it bargained — and this defence may be raised on appeal by notice of contention even if not pleaded at trial, provided no factual questions are raised. The question whether non-compliance with the fee-setting provisions renders the fees void or merely voidable under a Project Blue Sky analysis was left open.