The count for money had and received
216 The cause of action for money had and received is the "most comprehensive of all the common counts [and is] applicable wherever the defendant has received money which in justice and equity belongs to the plaintiff, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff": Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) Stevens & Sons (at 44) ("Bullen & Leake"); referred to with approval by Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 (at [88]) as echoing what Lord Mansfield said of the action for money had and received in Moses v Macferlan (1760) 2 Burr 1005; 97 ER 676; see also Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6; (2006) V Conv R ¶54-713 (at [9]) per Chernov JA; also Nettle JA (at [47]). As Chernov JA explained, (Ovidio, at endnote 9), the description of the action for money had and received in the third edition of Bullen & Leake was substantially repeated in subsequent editions up to the 13th edition (1990) (at 654-665) whereas in the 14th edition of the work published in (2001) (at 1543-1559), there is no reference to that cause of action by that name and the topic is dealt with the heading of "Restitution" and in the context of unjust enrichment. In Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (at 683), Lord Goff of Chieveley referred to the "old action for money had and received - what we nowadays call a personal claim in restitution at common law."
217 The principle extends to cases where the money has been paid for a consideration that has failed: Royal Bank of Canada v The King [1913] AC 283 (at 296) per Viscount Haldane LC; referred to with apparent approval by Gummow J in his extensive consideration of the cause of action for money had and received in Roxborough (at [62]). The failure of consideration must be complete in order to entitle the plaintiff to recover the money paid for it, unless the consideration is severable: Roxborough (at [14]) per Gleeson CJ, Gaudron and Hayne JJ approving the passage to that effect in the third edition of Bullen & Leake; (at [105] - [107]) per Gummow J; cf (at [198]) per Callinan J. Failure of consideration may include, but is not limited to, non-performance of a contractual obligation: Roxborough (at [16]) per Gleeson CJ, Gaudron and Hayne JJ; (at [95]) per Gummow J. In a case where it is apparent only some part of the consideration had failed, the court must determine whether there has been a failure of a severable part of the consideration and whether, in the absence of restitution, the payee will retain money at the expense of the payer: Roxborough (at [20]). Failure of consideration can have several meanings, including failure to perform the promise: Roxborough (at [101] - [103]) per Gummow J; (at [196]) per Callinan J.
218 In defending an action for money had and received, the 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": David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 (at 379); Roxborough (at [91]).
219 Although not clearly articulated, one way the first respondent appeared to put the hypothetical case the estate might have brought against the appellant and Mr Juul was that the deceased paid over the $515,000 labouring under the mistaken belief that that sum represented the presumably approximate cost of the renovations and that, if it did not, the balance ought be returned.
220 A payer is prima facie entitled to recover on an action for money had and received if it appears that monies were paid by the payer in the mistaken belief that he or she was under a legal obligation to pay the monies or that the payee was legally entitled to payment of the monies. However the claim may fail if the payer intends that the payee should have the money at all events, whether the fact be true or false, or is deemed in law so to intend: David Securities (at 378, 380) per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ.
221 With those principles in mind, I return to the wilful default judgment. The primary judge did not identify a jurisprudential basis upon which he held (wilful default judgment (at [50] - [51])) that Mr and Mrs Juul were "obliged to account to the estate for the difference between $515,000 and the amount spent" and that one instance of wilful default had been demonstrated in the executors' failure to get in the amount due to be refunded. However, the first respondent submitted at trial and, as I have said, Ms Winfield submitted in this court, that the basis for recovery was an action for money had and received.
222 It is notable that his Honour made the primary finding as to the Juuls' liability to account to the estate at the same time as recording that there had been no discussion before him as to "whether on the taking of the accounts there should be a just allowance for the work involved in assisting with the renovation": wilful default judgment (at [50]). It is clear that his Honour was conscious of the fact Mr Juul had expended considerable effort in effecting the renovations, the value of which might reduce the amount he had held should be refunded to the estate. The question as to whether a just allowance might be made only arose, in my view, because the primary judge had interpreted the conversations with the deceased as not extending to Mr Juul himself being paid for the work. In my view, in so finding, his Honour misapprehended the conversations.
223 The conversations (see [67] above) went to two matters: first, to the actual cost of the building work and secondly, to Mr Juul being reimbursed for the cost to him of doing, that is to say, managing and supervising the work. The deceased was happy for that work to be undertaken as long as it could be paid for from the sale of two lots in the subdivision. A total figure of $515,000 was agreed to cover both aspects of the renovations.
224 While, as events transpired (and assuming the primary judge had admitted at the accounting hearing Mr Juul's account of the hours he had expended on the renovation work and the hourly rate the deceased had agreed) that represented the total cost of both limbs of the agreement, it is also apparent, in my view, that the deceased was not concerned that there be a dollar-for-dollar accounting of the extent to which the $515,000 was expended. This can be seen from the following matters.
225 One is the conversation to which Mr Juul deposed in the wilful default hearing that "in April 2001 we agreed that our agreement was finished and all parties were perfectly happy with the arrangements and, therefore, it was finished." The primary judge does not appear to have given that evidence any weight in the wilful default judgment. Yet it was evidence which, in my view, indicated that to the extent there was any balance of the $515,000 when the renovations were complete, the deceased intended Mr Juul and/or the appellant to retain it. His Honour appears to have accepted as much in the accounting judgment when he said (at [75]) when holding that there should be a just allowance for the work undertaken by Mr Juul, "[t]he deceased did not expect Mr Juul and his wife to repay any part of the sums paid." That finding can only have been based on the evidence given at the wilful default hearing. It was a conclusion which, with respect, should have been made in that hearing. If it had, it would have been apparent, as, in my view is the case, that it could not be said that the appellant and Mr Juul had received money which in justice and equity belonged to the deceased (and hence was recoverable by her estate).
226 It is also relevant to observe that the objective evidence supports the arrangement for which the appellant and Mr Juul contended, including the conclusion that the deceased was happy for the work to be carried out without requiring a detailed accounting or any refund. Each component of the $515,000 was paid to Mr Juul ($250,000 in October 1998) and the appellant ($265,000 in March 1999) immediately after the sale of a lot in the subdivision. On both occasions the renovation work had only been underway for a comparatively short period. Indeed when the first payment was made, Mr Juul protested that it did not represent the value of the work done to that time - but the deceased insisted on paying. Although unstated, it is possible her anxiety to do so stemmed from knowing the Juuls had borrowed $460,000 to commence the subdivision and the renovation work (wilful default judgment (at [8])), monies on which they presumably incurred borrowing and interest costs. The deceased lived for a further four and a half years or so, yet not once does it appear she ever sought repayment of any of the monies or expressed any dissatisfaction with the absence of an accounting to any one of her other six children, one or more of whom as I have said, lived with her in the home during the period in question.
227 I should note that, on the cross-appeal Ms Winfield argued that the primary judge should not have accepted Mr Juul was a credible witness. It is relevant to consider this aspect of the cross-appeal which clearly could have an effect on the agreement with the deceased.
228 To make good that submission on appeal, the first respondent had to establish that in assessing Mr Juul's credibility the primary judge failed to use, or palpably misused, his advantage, or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable, or was contrary to compelling inferences: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
229 Two bases were advanced to support the proposition that the primary judge should have rejected Mr Juul as a credible witness. The principal matter relied upon was the fact he had not declared amounts received from the deceased in his tax returns and because he declined to answer some questions about including amounts earned in Singapore in his tax returns on the basis those answers might incriminate him. As to the first point the evidence did not establish, in my view, that any amount Mr Juul personally received should be included in his tax return. The only part of the $515,000 he personally received was $250,000. It is open on the evidence to conclude that that amount was spent on the actual costs of materials and labour, rather than representing any income he actually earned.
230 As to the second point, the transcript at the stage of the wilful default hearing when this evidence was given does not reveal that Mr Juul declined to answer a question on that basis, however that that was the basis of his refusal to answer is tolerably apparent from a passage in the transcript of the accounting hearing. However the short answer to the first respondent's submission in this respect is that no adverse inference is drawn where a person claims a privilege: see Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) (at [862]). Further, even if such an inference could be drawn, the primary judge did not consider any such inference detracted from his conclusion that Mr Juul was a credible witness on both occasions he gave evidence.
231 Ms Winfield also contended the primary judge ought to have rejected Mr Juul because he gave evasive answers. The characterisation of these answers and any effect they might have on Mr Juul's credit (assuming them to have been evasive, which is not a matter I would determine) was, in my view, peculiarly within the judge's province of decision-making.
232 Finally, I would note that Mr Juul's conversations with the deceased were substantially corroborated by the appellant's conversation with her: wilful default judgment (at [35]). No attack was made on the appellant's credibility.
233 The first respondent did not demonstrate any reason why his Honour's conclusion that Mr Juul was a credible witness should be disturbed.
234 This means that the conversations to which Mr Juul (and the appellant deposed) concerning the circumstances in which the deceased paid them the $515,000 stand. However, in my view, for the foregoing reasons, the primary judge erred in concluding that there were any monies owing to the estate and that the first respondent had established an occasion of wilful default. The finding of wilful default cannot stand. His Honour ought to have dismissed the summons.
235 In my view these reasons are sufficient to dispose of the appeal and the cross-appeal, without considering the numerous other challenges raised by both appellant and first respondent to the two principal judgments.