Southage Pty Ltd v Vescovi

(2014) 307 ALR 512; [2015] VSCA 117

Victorian Court of Appeal

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Interrogate

Catchwords

1. Restitution
2. › Money paid under mistake of fact
3. › Prima facie right to recovery
4. › Defence of change of position
5. › Whether recipient changed position on faith of receipt
6. › Whether recipient acted in good faith on assumption entitled to deal with payment
7. › Whether recipient would be in worse position if ordered to make restitution than if funds never received
8. › Whether unjust to order restitution
1. Restitution
2. › Money paid under mistake of fact
3. › Defence of change of position
4. › Causal link between receipt and detriment
5. › Requirement of detrimental reliance
6. › Whether belief that husband paid deposit from own funds was operative cause of entering transaction
7. › Whether multiple causes preclude defence
1. Restitution
2. › Unjust enrichment
3. › Status in Australian law
4. › Whether unjust enrichment is a definitive legal principle or source of liability
5. › Whether unjust enrichment is an overarching legal genus

Quick Take

The change of position defence to a restitution claim for money paid under mistake of fact is available where the recipient, acting in good faith and without knowledge of the mistaken payment, enters into transactions in reliance on the assumed state of affairs, even where there are multiple causes for entering the transaction. The defence is established where the recipient's belief regarding the source of funds was operative at the time of the transaction and the recipient retained none of the value of the mistaken payment by the time the claim was brought. Where a mistaken payment is traced into a substitute asset acquired with substantial borrowings, the claimant may bear the onus of establishing the net value of enrichment attributable to the mistaken payment.