Case: David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353
Outcome: discussed
Second, the first respondent submits that a prima facie right to recover will be displaced where it would be consistent with good conscience to allow the lessor to retain the overpaid rent. It referred to the statement of the High Court in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353 (at 379) that a defendant "is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust". 74 The first respondent contends that if it were ordered to refund the overpaid rent in its entirety, the applicant would obtain a windfall benefit. It would be a windfall because at the time that this dispute arose, the applicant conceded there should have been a rental increase, at least up to the level assessed by Mr Ned Walsh, whose assessment is discussed in the primary judgment. 89 The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333. 91 Despite Deane J's overture in Pavey &amp; Matthews that "unjust enrichment" assists in determining whether the law should recognise new categories of restitution, in David Securities , the majority (Mason CJ, Deane Toohey, Gaudron and McHugh JJ) noted that (at 379): "it is not legitimate to determine whether an enrichment is unjust by reference to some subjective evaluation of what is fair or unconscionable. Instead, recovery depends upon the existence of a qualifying or vitiating factor such as mistake, duress or illegality." 92 It is therefore clear from the High Court's approach in David Securities and Roxborough that while the categories of restitution are not closed, the "established categories" still provide, at the very least, the starting point for analysing restitutionary claims. 111 Turning to the question whether the applicant's restitutionary claim was properly pleaded, I agree that the claim was not pleaded as well as it could have been. However, Mason and Carter make some salient observations about pleading claims for restitution. The learned authors state (at [2904]): "A pleading that asserts in the abstract that P was unjustly enriched at D's expense will usually be struck out. The authorities require the basis of such an allegation to be explained in the pleading. In light of the general statements in David Securities Pty Ltd v Commonwealth Bank of Australia , courts have been averse to pleadings which simply appeal to 'idiosyncratic notions of what is fair and just', or which plead generalised claims based on unjust enrichment. We explain elsewhere why it is legitimate to say that causes of action arise in restitution. Nevertheless, we are not advocating pleadings which rely merely on 'unjust enrichment', unless the essential facts are set out . ... Pleaders are unlikely to allege unjust enrichment in a context devoid of any facts, and the likelihood that the facts pleaded might attract some novel restitutionary claim in this fast-developing area of the law, saw Gummow J refusing to strike out such a pleading in Winterton Constructions Pty Ltd v Hambros Australia Ltd ." (footnotes removed) 112 The applicant pleaded its claim of "unjust enrichment" by reference to the invalidity of the notice. While it could have more clearly identified the claim as one for restitution on the basis of money had and received, the relevant issue was adequately raised. In addition, as Mason and Carter point out, there are good reasons not to plead claims in restitution with a great degree of specificity. In a developing area of the law, where the categories of claims are not closed, an applicant should not shut itself out of making a case for "some novel restitutionary claim", as long as the relevant facts upon which the claim is based are identified. 113 As it turns out, the facts in this case do not "attract some novel restitutionary claim". They fall squarely within an established category an action for money had and received. However, it is for the above reasons that I am satisfied that the applicant pleaded its claim for restitution adequately. 114 The applicant and first respondent are in dispute over the exact amount of money which was overpaid. The dispute surrounds three issues: &#8226; whether interest can be claimed on the GST component of the overpaid rent when the applicant would have received an "input tax credit" from the Australian Taxation Office for those sums; &#8226; whether the appropriate interest rate to be applied to the overpaid rent is the penalty rate or the business overdraft rate as specified by the Reserve Bank of Australia; and &#8226; whether the first respondent was entitled to an automatic increase in rent of three per cent on 1 September 2005, pursuant to clause 3.2.1, irrespective of whether it has served a notice under that clause. 115 Section 51A(1)(a) of the Federal Court Act 1976 (Cth) provides significant discretion in determining questions relating to the application of interest to any award of money. It is in the following terms: "In any proceedings, for the recovery of any money (including any debt or damages or the value of any goods) in respect of a cause of action that arises after the commencement of this section, the Court or a Judge shall, upon application, unless good cause is shown to the contrary, either: (a) order that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered ..." (emphasis added)