Agar v Hyde

Preliminary questions

1. An initial question was whether the Club's Amended Interlocutory Process should be heard at this stage or should be adjourned to the substantive hearing which is to occur as noted above, in April 2016. Mr Whittingham resists a determination of this application as a separate matter. A collateral dispute arose between the parties, in that respect, as to whether monies now held by Mr Whittingham were or were not de facto security for costs, and whether that was or was not consistent with the intent of the earlier decision of the Court of Appeal in this matter. I do not consider it necessary to determine that dispute, where the Plaintiffs which had originally raised that issue ultimately did not press it. Mr Whittingham also opposed the present determination of the claim on the basis that it would give rise to the possibility of an application by the unsuccessful party for leave to appeal from any decision in respect of it. That is plainly a difficulty with an interlocutory process that seeks determination of issues that will also arise at the substantive hearing; however, my declining to determine the matter, or adjourning it to the final hearing in a manner that substantively declined to determine it, would also give rise to the possibility of a further application for leave to appeal. Mr Whittingham also points to delay on the part of the Plaintiffs in raising this matter, in circumstances that it is now some time since the remittal orders were made by the Court of Appeal and it was not raised in Plaintiffs' earlier summary dismissal application. While that complaint has some force, the Plaintiffs fairly point out that the amount involved in this category of claim by Mr Whittingham is now substantial, and has significantly increased by reason of amendments by Mr Whittingham to his calculation over time.
2. It seems to me that, on balance, the Amended Interlocutory Process should be determined at this point rather than adjourned to the final hearing. As a matter of practicality, the substantive arguments as to the Amended Interlocutory Process were put at the same time as argument as to this preliminary issue, and, as the Club had foreshadowed, did not require a lengthy hearing. The advantage of determining the summary dismissal application seems to me to outweigh any disadvantages, and to be consistent with the just, quick and cheap resolution of the issues in dispute in the proceedings for the purposes of s 56 of the Civil Procedure Act 2005 (NSW).
3. A second preliminary question, which I raised with the parties, was whether a dispute as to what had been determined by the Court of Appeal was properly a matter for me, or was a matter which ought to be raised with the Court of Appeal. It was common ground between the parties that, and I proceed on the basis that, this question is properly determined by me, by an objective construction of the Court of Appeal's judgment and the orders that it made. That approach is supported by authorities to which the Club referred in support of its submission that a first instance judge has jurisdiction to determine the scope of a remitter to him or her, including Knudsen v Kara Kar Holdings Pty Ltd (No 2) [2000] NSWSC 943, where Austin J held that an order remitting proceedings for rehearing extended to a determination of costs of the initial hearing; Director of Maritime New Zealand v Survey Nelson Ltd [2011] NZSC 61, where the Supreme Court of New Zealand accepted that the Court at first instance had jurisdiction to interpret the Court of Appeal's judgment; and San Souci Ltd v VRL Services Ltd [2012] UKPC 6 at [11]-[18], where the Privy Council treated it as open to a tribunal to determine the proper construction of orders made by the Court of Appeal. In Provident Capital Ltd v Hazaran Pty Ltd [2002] NSWSC 825, Bergin J (as her Honour then was) dealt with an application made at first instance for a party to be released from an undertaking given to the Court of Appeal and similarly observed at [9] that: "… it seems to me that s 51 of the Supreme Court Act 1970 (NSW) (the Act) is a basis upon which I was able to proceed to hear the application. That section provides that where proceedings are commenced in a Division of the Court but are under the Act or any other Act or under the Rules assigned to the Court of Appeal, the proceedings shall be for all purposes well commenced on the date of the commencement in the Division. There is capacity for either the Court of Appeal or a judge of the Division in which the proceedings are commenced to exercise a discretion to remove the proceedings to the Court of Appeal, but subject to that the proceedings may be continued and disposed of in the Division."
4. I do not understand it to be contested that, subject to Mr Whittingham's claim for restitution in respect of the category 10 remuneration, then the Club would be entitled to repayment of the amount now claimed given the result on appeal. The question in issue in this application is whether he is entitled to pursue that claim in the remittal before me.

Whether the Court of Appeal has already determined Mr Whittingham's claim for category 10 remuneration

1. The Club's first substantive submission is that the Court of Appeal has already determined that the category 10 remuneration, in connection with the appeal and the first instance proceedings, was not recoverable and that matter has not been remitted to this Court for determination.
2. This submission turns partly on the scope of Mr Whittingham's Amended Interlocutory Process at first instance and partly on the Court of Appeal's judgment and orders for remittal. Paragraph 4 of Mr Whittingham's Amended Interlocutory Process had sought: "An order that [Mr Whittingham] is entitled to be paid, out of the assets of the [Club], his reasonable remuneration and costs and expenses, including legal expenses, for work performed pursuant to his purported appointment as voluntary administrator and deed administrator of the [Club] notwithstanding that his appointment has been held to be invalid as: (a) Work performed and costs and expenses incurred by [Mr Whittingham] at the request of the [Club] and/or with the acquiescence of the [Club]; (b) Work performed and costs and expenses incurred by [Mr Whittingham] which conferred an incontrovertible benefit upon the [Club] (in circumstances where it would be unconscionable for the [Club] to retain the benefit without paying a reasonable sum for the work. Paragraph 5 of the Amended Interlocutory Process in turn sought an order that the proceedings be referred to a Registrar for determination of the amount to be paid to Mr Whittingham under that order.
3. Paragraph 6A of Mr Whittingham's Amended Interlocutory Process relevantly claimed: "An order declaring that [Mr Whittingham] is entitled to be reimbursed and indemnified in respect of his remuneration, legal costs and disbursements in connection with these proceedings out of the assets of the [Club] and that he has a right to exercise an lien over the assets of the [Club] to secure this right of reimbursement and indemnity pursuant to clauses 19.4, 20.1 and 20.5 of the Deed of Company Arrangement … and/or sections 443D and 443F of the Corporations Act (Cth) 2001." The Club emphasises that the Court of Appeal did not remit that paragraph for further determination at first instance.
4. It is also necessary to refer to the orders made by the Court of Appeal. On 15 August 2013, the Court of Appeal reversed aspects of my judgment at first instance and set aside the orders that had been made at first instance, and remitted the proceedings to me to determine Mr Whittingham's claims in paragraphs 4, 5 and 6 of his Amended Interlocutory Process filed 20 February 2012 in the proceedings at first instance, which it had not previously been necessary to determine.
5. By order 4(b) made by the Court of Appeal on 23 December 2013, it declared that Mr Whittingham was: "Not entitled [to] any right of indemnity or lien over the property of the [Club] for … any of his own costs of the proceedings below and of the appeal, with the intent that he personally bear his own costs." That order appears to reflect observations made by Gleeson JA in the Court of Appeal's judgment ([2013] NSWCA 471 at [86]-[89], [97]) as follows: "The appellants submitted that Mr Whittingham should personally bear his own costs of the proceedings below and of the appeal, and pay any costs he might be ordered to pay to the appellants, without recourse to the assets of the Club. Mr Whittingham submitted that he was entitled to be reimbursed his legal expenses of the proceedings below and on appeal by the Club, relying upon the right of indemnity conferred by cl 19.4 of the D[eed] O[f] C[ompany] A[rrangement]. He also submitted that he was entitled to have recourse to the assets of the Club for the purpose of discharging any costs orders made against him in favour of the appellants, relying on cl 20.1(b) of the DOCA. Mr Whittingham's entitlement to rely upon the right of indemnity and reimbursement provisions of the DOCA has been considered and rejected above. Mr Whittingham did not advance any further arguments against the orders sought by the appellants. It was not contended that Mr Whittingham's own legal expenses in relation to the appeal or the proceedings below were for the incontrovertible benefit of the Club: Monks v Poynice Pty Ltd (1987) 8 NSWLR 662 at 665. In circumstances where there is no statutory or contractual entitlement for indemnity or reimbursement in respect of his own costs of the proceedings, nor in respect of any costs which Mr Whittingham might be ordered to pay to the appellants and no basis for a quantum meruit claim, the order sought by the appellants is appropriate and should be made. … The orders giving effect to these reasons will provide, in effect, that Mr Whittingham is to personally bear his own costs of the proceedings and pay the costs that he is ordered to pay, without recourse to the assets of the Club. The appropriate forum to determine the quantum of any claim by the Club for restitution of the legal expenses charged by Mr Whittingham to the Club in respect of these proceedings is on the remitter of Mr Whittingham's quantum meruit claim, which has already been ordered."
6. Order 5 made by the Court of Appeal on 23 December 2013 in turn provided that: "In the event that the amount of remuneration and expenses determined by the primary judge pursuant to the remittal of [Mr Whittingham's] claim in [4], [5] and [6] of the [Amended Interlocutory Process] be less than the amount already paid to [Mr Whittingham] in respect of his claims for remuneration and expenses as the purported administrator and deed administrator of the [Club], [Mr Whittingham] pay to the [Club] the difference between the amount already paid to him (including property furnished by way of security to the extent that it has not been already reimbursed to the [Club] and the amount assessed by the primary judge." It appears to be common ground that that order was made by the Court of Appeal under s 51(4) of the Supreme Court Act, which provides that the Court of Appeal may order that the whole or any part of the proceedings be remitted to a Division of the Court for the determination by trial or otherwise of the proceedings or any question arising in the proceedings.
7. The Club, in submissions, seeks to read paragraph 6A of Mr Whittingham's Amended Interlocutory Process, which was not remitted, as directed to his remuneration in connection with the proceedings out of the Club's assets, and to draw an inference that that question of remuneration was not remitted, because that paragraph was not remitted. The Club submits that, consequential on the absence of a remitter of the claim in paragraph 6A of the Amended Interlocutory Process to me, Mr Whittingham is not entitled to claim category 10 remuneration in the remittal of the proceedings, and the Club is entitled to immediate repayment of the amount claimed with interest as of right, on the basis that it was paid as part of a judgment reversed on appeal: Commonwealth v McCormack [1984] HCA 57 at [4]; (1984) 155 CLR 273; Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; (2011) 80 NSWLR 445.
8. In support of that submission, the Club seeks to distinguish between remuneration for work performed pursuant to Mr Whittingham's purported appointment as voluntary administrator and deed administrator, which it contends is claimed in paragraph 4 of Mr Whittingham's Amended Interlocutory Process, and work performed in connection with the proceedings and appeal which it contends is claimed in paragraph 6A of Mr Whittingham's Amended Interlocutory Process. The Club refers to the declaration made at first instance that Mr Whittingham was entitled to be reimbursed and indemnified in respect of his remuneration, legal costs and disbursements as administrator and deed administrator, including in connection with the proceedings, out of the Club's assets and that Mr Whittingham had a right to exercise a lien over the Club's assets to secure that right of reimbursement and indemnity under clauses 19.4, 20.1 and 20.5 of the Deed of Company Arrangement executed by Mr Whittingham and the Club and under ss 443D and 443F of the Corporations Act 2001 (Cth) ([2012] NSWSC 677, order 4). That declaration broadly reflects the scope of order 6A of the Amended Interlocutory Process which was not remitted by the Court of Appeal.
9. Mr Whittingham responds to the Club's reliance on the dismissal of prayer 6A in the Amended Interlocutory Process by submitting that Mr Whittingham's claim in that paragraph depended on the proposition that he had been validly appointed as administrator and subsequently as deed administrator, so as to be entitled to the relevant rights under the Corporations Act and the Deed of Company Arrangement. As Mr Whittingham points out, a claim on that basis could not succeed once the Court of Appeal had found that his appointment had been invalidated by s 41 of the Registered Clubs Act 1976 (NSW). Mr Whittingham submits that that finding did not preclude a claim for quantum meruit, independent of any finding that he had been validly appointed. In submissions in reply, Mr Gray, who appears with Mr Steven for the Club, characterised the Club's submissions supporting paragraph 6A in the Court of Appeal as made by reference to the general law of contract. That submission does not assist the Club, so far as a rejection by the Court of Appeal of a submission based on the law of contract would not have determined the question of quantum meruit which has been remitted.
10. With respect, it seems to me that the Club's submission misreads paragraph 6A of the Amended Interlocutory Process, which was directed to a claim for remuneration and a right of reimbursement and indemnity arising from the relevant paragraphs of the Deed of Company Arrangement and the Corporations Act. That claim does not seem to me to relate to a claim by Mr Whittingham in unjust enrichment, which would not arise had the claim under the Deed of Company Arrangement or the Corporations Act been sustained. The absence of a remittal of that paragraph of the Amended Interlocutory Process seems to me to indicate nothing, whether positively or negatively, as to the availability of a claim for unjust enrichment on the remittal.
11. Mr Ryckmans' affidavit of 21 September 2015 also draws attention to a distinction which he contends was made by the Court of Appeal between work performed pursuant to Mr Whittingham's purported appointment as administrator and work solely in connection with the proceedings. Mr Ryckman's affidavit evidence is, by way of submission, that that distinction was drawn in respect of Mr Whittingham's legal expenses in the Court of Appeal's judgment ([2013] NSWCA 471 at [96]) and "there is no logical reason why the distinction would not apply to [Mr Whittingham's] remuneration". Mr Ryckmans' affidavit also notes that the Court of Appeal ordered Mr Whittingham personally to bear his own costs of the proceedings at first instance and of the appeal. The Club submits that any suggestion that the Court of Appeal did not permit Mr Whittingham to recover his legal costs and expenses of the proceedings, but did not prevent him seeking to recover his remuneration referable to the proceedings, would be incoherent.
12. The Club's submission seems to me to depend on the proposition that the Court of Appeal, in ordering that Mr Whittingham's bear his own "costs of the proceedings" was using that term in the manner defined in s 3 of the Civil Procedure Act rather than in the common usage of the costs incurred by or payable by a party to proceedings. It is by no means clear to me that that premise is correct. Even if that proposition is correct, s 3 of the Civil Procedure Act in turn defines "costs" in relation to proceedings as: "Costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration." However, the defined term "costs" in the Civil Procedure Act is then primarily used in provisions in that Act dealing with the costs of legal proceedings, which are determined by reference to the fees, disbursements, expenses and (perhaps rarely, but not impossibly, remuneration) of legal advisers in respect of the proceedings. The term "costs" as defined in s 3 of the Civil Procedure Act is used, for example, in s 98 of the Civil Procedure Act which provides for costs being awarded on the ordinary basis or an indemnity basis. It does not seem to me that the reference to "costs" in s 3 of the Civil Procedure Act extends, for example, to claims for remuneration by liquidators, receivers or administrators, which are ordinarily determined in accordance with the relevant provisions of the Corporations Act that are directed to such claims, or, by extension, to claims for quantum meruit that are referrable to an insolvency practitioner's remuneration. If the Court of Appeal used the term "costs" in its order in the sense used in s 3 of the Civil Procedure Act, and that term cannot be read as extending to Mr Whittingham's remuneration, then the Court of Appeal's reference to "costs" in its orders also cannot be read as extending to that matter.
13. Mr Whittingham submits that the wider construction for which the Club contends, in respect of the term "costs" is not readily reconciled with the Court of Appeal's reference to Mr Whittingham "personally bear[ing] his own costs". That language is, it seems to me, more readily applicable to external legal costs, than to a proposition that a person should "bear" his or her own remuneration. Mr Whittingham also submits that, when order 4(b) made by the Court of Appeal is read in conjunction with Gleeson JA's reasons for judgment, which I have quoted above, that order is properly read as concerned with Mr Whittingham's legal expenses in conducting the proceedings. Mr Whittingham distinguishes the question of his remuneration, including the remuneration charged for defending the proceedings, which he contends is part of the remittal now before the Court and listed for hearing in April 2016. Mr Whittingham also submits that Gleeson JA's observation that there was no basis for a quantum meruit claim in respect of his legal expenses reflected the fact that he had not contended on appeal that those expenses conferred an incontrovertible benefit upon the Club; whereas he now seeks to invoke, in the remittal, the first category of case identified in Monks v Poynice Pty Ltd (1987) 8 NSWLR 662.
14. In submissions in reply, Mr Gray submits that paragraph 4 of the Amended Interlocutory Process, which was remitted for further hearing, seeks remuneration "for work performed pursuant to [Mr Whittingham's] purported appointment as voluntary administrator and deed administrator", as distinct from work related to the trial and appeal. However, the distinction drawn by Mr Gray depends, with respect, on the matters that are in dispute, so far as Mr Whittingham seeks to contend that work related to the trial and appeal was in fact work performed pursuant to his purported appointment as voluntary administrator and deed administrator.
15. I accept that there would be a potential inconsistency of outcome, if the Court of Appeal did not permit Mr Whittingham to recover his costs of the proceedings, but his remuneration in respect of corresponding activities was found to be recoverable on a quantum meruit basis at first instance. That inconsistency of outcome might or might not be explicable by the fact that the Court of Appeal noted that Mr Whittingham did not put a claim for incontrovertible benefit before it in respect of legal costs, and the Court of Appeal did not address any claim for implied request in its judgment. While Mr Whittingham also does not put a claim for incontrovertible benefit on the remittal, he does seek to put a claim for implied request, so a matter will be raised on the remittal that was not addressed by the Court of Appeal.
16. It seems to me that, as a matter of construction of the Court of Appeal's judgment and its orders, it held that Mr Whittingham's costs, in the usual and common sense of his costs payable to his legal advisers and his costs payable to the Club in respect of his unsuccessful defence of the appeal, were not recoverable from the Club, and did not specifically address the question of his remuneration in respect of the proceedings. In particular, the second sentence of paragraph 97 of Gleeson JA's judgment, which I quoted above, seems to me to have expressly contemplated that the Club's claim for remuneration of "legal expenses" charged by Mr Whittingham to the Club would be determined on the remitter. It seems to me that that reference must at least refer to amounts charged by Mr Whittingham to the Club by remuneration in respect of the proceedings, and that is inconsistent with any proposition that the Court of Appeal had determined that matter adversely to Mr Whittingham, when it had not previously been determined at first instance. In submissions in reply, Mr Gray also referred to the submissions made by the parties before the Court of Appeal; however, those submissions are not in evidence before me, so I cannot go beyond the references in the Court of Appeal's judgment to those submissions.
17. It seems to me that paragraph 4 of the Amended Interlocutory Process, which was remitted to this Court, is therefore sufficiently wide to permit Mr Whittingham to bring a claim for restitution, based on an implied request, in respect of his remuneration incurred in respect of the proceedings. While a finding in Mr Whittingham's favour in respect of that claim may be inconsistent, in its outcome, with the Court of Appeal's treatment of his costs of the proceedings, it is within the scope of the remittal to the Court and it is not a matter that has previously been decided by the Court of Appeal.

Whether Mr Whittingham's claim for remuneration in respect of the proceedings should be summarily dismissed

1. The Club also advances an alternative submission, on the alternative basis that the Court of Appeal had not in fact determined the question of Mr Whittingham's claim to quantum meruit in respect of category 10 remuneration, namely that Mr Whittingham's claim in respect of that category does not have any reasonably arguable basis and ought to be summarily dismissed in accordance with the principles in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90. I reviewed the authorities applicable to an application for summary dismissal in dealing with the Club's previous application for summary dismissal of Mr Whittingham's cross-claim in its entirety ([2015] NSWSC 661 at [3]-[6]). The parties did not advance further submissions as to those authorities in this application, and it does not seem to be necessary to repeat that analysis. I proceed on the basis, consistent with Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], and the numerous cases that have followed it, that, ordinarily, a party is not to be denied the opportunity to place his or her case before the Court in the ordinary way, after taking advantage of the usual interlocutory processes, and that should only occur where there is a "high degree of certainty" about the ultimate outcome if the proceedings were allowed to go to trial in the ordinary way; and that this will generally be established only if a claim is "so obviously untenable or groundless": see Shaw v New South Wales [2012] NSWCA 102 at [30]-[32]; Ren v Jiang [2014] NSWCA 388; (2014) 104 ACSR 149 at [49].
2. Mr Gray also formulated part of his oral submissions on the basis that the Court should determine a separate question as to the relevant matters. The Amended Interlocutory Process filed by the Plaintiffs did not seek a determination of a separate question. In the event, little turns on whether the application was characterised as an application for determination of a separate question, or an application for summary dismissal, because Mr Gray accepted that the principles applicable to summary dismissal should be applied in any event.
3. Mr Whittingham seeks to support the claim for category 10 remuneration, by paragraph 22 of his Further Amended Points of Claim, on the basis that: "In resolving to appoint [Mr Whittingham] as administrator of the Club, the directors of the Club expressly or impliedly requested that [Mr Whittingham] … participat[e] in proceedings to defend the validity of the administrator's appointment in circumstances where such a defence is reasonably arguable." In submissions, Mr Whittingham identifies this claim as being that the Club's resolution of his appointment, the validity of which was upheld on appeal, constituted an implied request to him to perform all the services and undertake all the steps that an administrator is required or authorised to provide or undertake, under the Corporations Act or under the general law. Mr Whittingham submits that the Corporations Act contemplates that an administrator may take steps to resist any challenge to the validity of his appointment, at least where there is a reasonable basis for doing so. Mr Whittingham also points out that he will rely upon the fact that his attempt, albeit ultimately unsuccessful, to defend the validity of his appointment, was potentially significant for third parties who had dealt with him during the course of the administration, and of steps that had been predicted upon the Club having validly entered into the Deed of Company Arrangement. Mr Ng, who appears for Mr Whittingham, submits that his claim should only be determined on the basis of the evidence led at the final hearing in respect of the matters remitted to me.
4. Mr Gray also submits that Mr Whittingham's claims overlooks the rejection of paragraph 6A of the Amended Interlocutory Process by the Court of Appeal. I have dealt with that issue above; if Mr Gray's submission were correct, then its consequence would be that the relevant issue had not been remitted to me, not that an issue that had been remitted to me could be treated as hopeless without a determination of it on its merits. Next, Mr Gray submits, with substantial force, that the claim put by Mr Whittingham is inconsistent with the Court of Appeal's determination that Mr Whittingham personally should pay his own costs of the proceedings below and on appeal. Mr Gray adds that those costs include remuneration, but I have addressed that submission above, and, had it been correct, its consequence would also be that the matter had been determined by the Court of Appeal, not that it had been remitted to me but was hopeless on the remittal.
5. I have recognised above that there is a potential inconsistency of outcome between the conclusion reached by the Court of Appeal as to costs, and the position which Mr Whittingham now seeks to put on remittal in respect of his remuneration. I have also noted above that that inconsistency may or may not be explicable by the fact that Mr Whittingham seeks to put an argument before me which it does not appear was put before the Court of Appeal. Mr Ng, who appears for Mr Whittingham, fairly acknowledges that this is a "difficulty" for Mr Whittingham's case. The question is whether that difficulty is of a level that would support an order for summary dismissal, depriving Mr Whittingham of an opportunity for adjudication of that claim on evidence at a final hearing.
6. Mr Gray puts a further submission that, where Mr Whittingham had purported to return control of the Club to its directors on 3 June 2010, there was no objective of the purported administration after that date, or any evident purpose in seeking validation of it, beyond allowing Mr Whittingham to collect his fees. Mr Gray submits that any request by Mr Whittingham, to support a claim for quantum meruit, would also have had to be irrevocable, since otherwise it would have been revoked by the proceedings brought by Ms Correa and the Club against Mr Whittingham. Mr Whittingham submits that the question whether any request made by the Club for him to perform work was irrevocable is not properly a matter for summary dismissal, for the same reasons that the question whether any implied request was made was not properly a matter for summary dismissal. These matters seem to me to be submissions on the merits, properly to be determined at a final hearing, not matters that could support summary dismissal of Mr Whittingham's claim.
7. Mr Gray also puts a submission that there is no possibility of restitution if, although the relevant services were requested by the Club, they were not of benefit to it. That proposition, if correct, would be an answer to Mr Whittingham's claim. However, Mr Gray somewhat retreated from that submission in accepting that the element of injustice, so as to support a claim for restitution, may be established by a specific request by a plaintiff to provide services to a defendant: Lumbers v W Cook Builders Pty Ltd v Lumbers [2008] HCA 27; (2008) 232 CLR 635 at [45]. Mr Gray further submits that services rendered officiously, or despite the Club's protest evidenced by the litigation, would not be regarded as beneficial and refers to observations of Young J in Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 at 35 that: "It must be a rare case in which the Court can impose a liability where there was no request or adoption, and where, had the person benefited had any say in the matter, he or she might very well have rejected the offer of benefit."
8. Mr Whittingham's response to the submission that a "benefit" is a necessary element of a claim for quantum meruit is that it conflates the elements of a claim based upon a request for work and those of a claim which proceeds upon an allegation of incontrovertible benefit. Mr Ng points out that, in Monks v Poynice Pty Ltd above at 664, Young J distinguished between two classes of claims, the first of which involved "a request expressed or implied for the performance of the service", which his Honour referred to as "quantum meruit in its most basal form", and the second of which involved a claim that the service conferred "incontrovertible benefit" on the defendant, such that it would be unconscionable for a defendant to retain the benefit of the service without paying a reasonable sum for it. It seems to me at least arguable that those two cases are properly distinct, so far as the element of request in the first of them displaces the need for objective determination of incontrovertible benefit, by indicating that the person requesting the service perceived it to be of benefit to them. Mr Ng also points to the plurality's observations in Lumbers v W Cook Builders Pty Ltd (in liq) above at [79] that: "The doing of work, or payment of money, for and at the request of another, are archetypal cases in which it may be said that a person receives a 'benefit' at the 'expense' of another which the recipient 'accepts' and which it would be unconscionable for the recipient to retain without payment." Mr Whittingham in turn submits that, where party A can show that work was done at the request of party B, it is unnecessary for A to establish that B received some benefit above and beyond that.
9. The Club's claim that it had not impliedly requested the defence of the proceedings by Mr Whittingham is, to some extent, a subset of a wider claim that it put, in an earlier summary dismissal application, that it had not requested the performance of any work by Mr Whittingham. Mr Whittingham draws attention to my observation, in dealing with the summary dismissal application on that basis ([2015] NSWSC 661 at [38]) that: "Whatever the ultimate merit of a submission that a purported appointment as an administrator does not carry an implication that Mr Whittingham should have taken any actions in that regard, it seems to me far from supporting a strike-out order or summary dismissal. It also seems to me that the existence of an implied request is a factual question which is not properly addressed in a strike out application or by summary dismissal."
10. I accept that Mr Whittingham may face considerable challenges in establishing that, as a general proposition, an entity that contests the validity of the appointment of an administrator or deed administrator should be treated as impliedly requesting an administrator or deed administrator to defend the proceedings, as distinct from leaving the administrator or deed administrator to do so at his or her own risk, or file a submitting appearance, a course that, as Mr Gray points out, was open to Mr Whittingham. However, it seems to me that these matters partly depend on the facts that must be established by evidence, and partly turn on questions of law that are not straightforward, and that Mr Whittingham's position could not be characterised as unarguable so as to deprive him of a hearing on the evidence.
11. Mr Gray also submits that it is the Court's duty under s 56 of the Civil Procedure Act to exercise its power under UCPR 13.4 and 14.28 to strike out Mr Whittingham's claim for category 10 remuneration. It follows from the observations that I have made above that I am not satisfied that the basis for a strike-out or summary dismissal of that claim, notwithstanding the challenges which it may face, is established. In those circumstances, the just, quick and cheap resolution of the real issues in dispute in the proceedings, as required by s 56 of the Civil Procedure Act, would not be promoted by the course for which Mr Gray contends; while it is no doubt quick and efficient to summarily dismiss an arguable claim, that is not consistent with the interests of justice.

Orders and costs

1. In the result, the Amended Interlocutory Process filed by the Plaintiffs are dismissed, and they should pay Mr Whittingham's costs of and incidental to the application, as agreed or as assessed.

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