His Honour (at [33]) drew support for this opinion, in part, from Pain J's observation in this case.
100 Lloyd J also referred to s.111(2)(b) of the Local Government Act 1919 (LGA 1919) (now repealed) as providing an example of the ability of a council to make a refund. Section 111 was contained within part VII of LGA 1919, relating to Finance. Part VII specified, inter alia, the manner in which a council's funds were to be held. Section 106 required that a council maintain separate and distinct funds, including a trust fund. Section 111 dealt with funds that had to be held on trust, including moneys held by a council by way of deposit or in trust: s 111(1)(b). Section 111(2)(b), to which Lloyd J referred, specified that such funds "may be paid or assured to or on behalf of the persons entitled thereto". There was then the proviso under s.111(2)(6) to which Lloyd J referred, that if funds had lain in trust for 10 years, the Council could transfer the funds into another fund, "subject to repaying the same to any person entitled thereto". His Honour concluded at [33]:
"Although this subsection has since been repealed it clearly shows that a refund has always been considered to be appropriate in some circumstances, such as those suggested in Frevcourt ."
101 With respect to his Honour, I do not agree that these provisions of LGA 1919 provide support for the entitlement to a refund such as is claimed by the appellants. Section 111 expressly provided both that moneys of certain categories were held on trust and that the person entitled thereto was entitled to be repaid the moneys. There are no like provisions in the EP&A Act.
102 None of their Honours (other than Lloyd J with whose remarks I disagree), indicated the basis upon which they considered that a refund was available. Neither s.94 nor the regulations expressly provide for it. By the same token, the legislation does not expressly prohibit a refund. In the absence of any express permission or prohibition, the question arises as to whether there is anything in the legislative scheme that makes a refund permissible, or alternatively, prohibits the making of a refund.
103 The following matters tend to a construction that there is no power to refund contributions. First, I have already expressed the view that the power to amend a Contributions Plan involves the ability to use funds (initially required for a particular amenity or service) for the amenity or service substituted, changed or varied in the amended Plan. In such a case there would be no right to a refund.
104 A Council is also entitled to repeal a Contributions Plan. It might be expected that the clearest case where there might (and ought to) be an entitlement to a refund is where a Plan is repealed after s.94 contributions have been received and no new Contributions Plan is made. However, in that case, as there is no breach of the Act there is no entitlement to relief under s.124, which is the jurisdictional basis upon which the appellants base their claim for a refund. Further, although s.94 contributions are held for a public purpose, in the case of a repeal of a Contributions Plan there is no longer any public purpose for which the funds are held. The authorities are clear that the statutory trust is not the same as, nor do persons have the rights that flow from moneys being impressed with, a private trust. The same is true of moneys held for a public purpose. There is no correlative private right. A contributor in such a case therefore has no rights of or equivalent to those of a beneficiary. It may be that a contributor would have a general law right to recover the s.94 contribution on a restitutionary basis, for example as money had and received. Such a right, however, is different in nature and concept to the relief that an individual may seek under s 124 of the EP&A Act.
105 The accounting regulations are also relevant. If there is more than one contributor to the fund for the provision of a particular amenity or service then all s.94 contributions made in respect of that amenity or service, become part of a combined fund. It would seem unlikely that the legislature would have envisaged a right to a refund in circumstances where funds were to be mixed. Although a council is required to record the details of individual s.94 contributions and the particular public service or amenity to which it relates, its accounting obligation relates to the expenditure in respect of the amenity, not to an accounting in respect of the expenditure of the particular s.94 contribution.
106 If there was a right to a refund, the further question arises as to the basis upon which the right is to be determined. Is it to be based upon the principle that first payments in are to be taken as first payments out? Is it to be on a proportional basis? If so, is any account to be taken of accumulations of interest on the fund. In my opinion, the absence of any enabling provision dealing with these issues would tend to a conclusion that the legislature did not intend there to be an entitlement to a refund.
107 If there is no right to a refund, it may be that the only right, if there is a breach of the Act, is a right to compel a council to use the funds for the public purposes for which they were paid: see Levadetes. This would be a logical result flowing from the nature of such funds being held for a public purpose. I acknowledge, however, that that does not satisfactorily explain how a Council is to treat any surplus should that position ever eventuate.