Carpenter & Anor v Morris & Anor

[2023] NSWCA 154

NSW Court of Appeal

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Interrogate

Catchwords

1. Restitution
2. › Common counts
3. › Money had and received
4. › Receipt of partnership moneys by third party
5. › Whether unauthorised receipt by non-partner falls within established category of restitutionary liability
6. › Whether qualifying or vitiating factor established
7. › Whether action precluded by availability of equitable claim for knowing receipt
1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › Informal oral contracts
5. › Whether implied term necessary for reasonable or effective operation of contract
6. › Whether term requiring procurement of mining licence could be implied
7. › Mining Act 1992 (NSW), s 11
8. › Mining Amendment Act 2008 (NSW), Sch 1, cll 2, 273
1. Partnership
2. › Partnership property
3. › Unauthorised payments to non-partner from partnership income
4. › Restitutionary liability of recipient

Quick Take

A common law claim for money had and received can be maintained against a recipient of partnership moneys who had no entitlement to receive them, without needing to establish fraud, mistake, or total failure of consideration, and notwithstanding the availability of an equitable claim for knowing receipt.