Chan v Eastern Blue Pty Ltd

[2021] VSCA 121

Victorian Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Variation
3. › Whether contract varied
4. › Whether variation made contemporaneously with or subsequent to contract formation
5. › Requirement of consideration for post-formation variation
6. › Whether contract varied to include additional party
7. › Privity of contract
1. Restitution
2. › Money had and received
3. › Total failure of consideration
4. › Elements of cause of action
5. › Whether consideration identified in pleadings
6. › Whether benefit bargained for received
7. › Objective analysis of basis for payment
8. › Contract for sale of business conditional on landlord's consent to lease transfer
1. Appeal
2. › Leave to appeal
3. › Discretion to refuse leave despite real prospect of success
4. › Futility
5. › Whether remittal to lower court would be futile where alternative cause of action bound to succeed
6. › Supreme Court Act 1986 (Vic), s 14C

Quick Take

Where a payment is made in connection with a conditional contract for the sale of a business, and the contract is terminated before the condition is satisfied through no fault of the payee, the cause of action for money had and received on the basis of total failure of consideration may lie against the personal recipient of the payment even where that person was not a party to the contract. The Court of Appeal may refuse leave to appeal despite grounds having real prospects of success where remittal would be futile because an alternative cause of action is bound to succeed on the existing pleadings and evidence.