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LEGISLATION CITED: Australian Securities and Investments Commission Act 1989 (Cth)

Bills of Exchange Act 1909 (Cth)

Cheques Act 1986 (Cth)

Corporations Law (Cth)

Corporations Act 2001 (Cth)

Fair Trading Act 1987 (NSW)

Suitors' Fund Act 1951 (NSW)

Trustee Companies Act 1964 (NSW)

Trustee Companies Act 1984 (Vic)

Trustee Comapnies Act 1947 (ACT)

Trustee Companies Act 1968 (Qld)

Trustee Companies Act 1988 (SA)

CATEGORY: Principal judgment

CASES CITED: Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533

Associated Midland Corporation Ltd v Bank of New South Wales (1984) 51 ALR 641

Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662

Bank of Bengal v Fagan (1849) 7 Moore PC 61; 13 ER 802

Barlow Clowes International Inc (in liquidation) v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476

Barnes v Addy (1874) 9 Ch App 244

Bentinck v London Joint Stock Bank [1893] 2 Ch 120

Brady v Stapleton (1952) 88 CLR 322

Bristol and West of England Bank v Midland Railway Company [1891] 2 QB 653

Citibank NA v Brown Shipley & Co Ltd; Midland Bank plc v Brown Shipley & Co Ltd [1991] 2 All ER 690

Citibank v Papandony [2002] NSWCA 375

Clutton v Attenborough & Son [1987] AC 90

David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353

Dextra Bank and Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193

Evans v European Bank Limited [2004] NSWCA 82; 61 NSWLR 75

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89

Foster v Pearson (1835) 1 CM & R 849; 149 ER 1324

Hasan v Willson [1977] Lloyd's Rep 431

Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1988) 18 NSWLR 420

Hunter BNZ Finance Ltd v Australia and New Zealand Banking Group Ltd [1990] VR 41

James v Oxley (1938) 61 CLR 433

Janssen Gilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526

Jones v Commerzbank AG [2005] EWCA Civ 1663

Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd ('The Aliakmon') [1986] AC 785

London Joint Stock Bank Ltd v British Amsterdam Maritime Agency Ltd (1910) 16 Com Cas 103

MBF Australia Ltd v Malouf [2008] NSWCA 214

Lipkin Gorman v Karpnale Ltd [1988] UKHL 12; [1991] 2 AC 548

London Joint Stock Bank v Simmons [1892] AC 201

Lloyd's Bank Limited v The Chartered Bank of India, Australia and China [1929] 1 KB 40

Margarine Union G.m.b.H. v Cambay Prince Steamship Co (The 'Wear Breeze') [1969] 1 QB 219

Morison v London County and Westminster Bank Limited [1914] 3 KB 356

NIML Ltd v MAN Financial Australia Ltd [2006] VSCA 128; 15 VR 156

Orix Australia Corporation Ltd v M Wright Hotel Refrigeration [2000] SASC 57; 155 FLR 267

Panton v Bailey [2004] NSWCA 12

Papandony v Citibank [2002] NSWSC 388

Pavey and Matthews Pty Limited v Paul (1987) 162 CLR 221

Perel v Australian Bank of Commerce (1924) 24 SR (NSW) 62

Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278

Port of Brisbane Corporation v ANZ Securities Limited [2002] QCA 158

RE Jones Ltd v Waring & Gillow [1926] AC 670

Raphael v The Bank of England (1855) 17 CB 161; 139 ER 1030

Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378

Rural Municipality of Storthoaks v Mobil Oil Canada Ltd (1975) 55 DLR (3d)

Sanwa Australia Finance Ltd v Finchill Pty Ltd [2001] NSWCA 466

Scottish Equitable plc v Derby [2001] 3 All ER 818

Smith v Prosser [1907] 2 KB 735

State Bank of New South Wales v Swiss Bank Corporation (1995) 39 NSWLR 350

Talbot v Van Boris [1911] 1 KB 854

Tasmanian Primary Distributors Pty Ltd (in liq) v RC and MB Steinhardt Pty Ltd (1994) 13 ACSR 92

Tatam v Haslar (1889) 23 QBD 345

The Great Western Railway Company v The London and County Banking Company Limited [1901] AC 414

Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164

United Overseas Bank v Jiwani [1976] 1 WLR 964

Voss v Suncorp-Metway Limited (No 2) [2003] QCA 252; [2004] 1 QdR 214

Watson v Russell (1862) 3 B & S 34; 122 ER 14

Wilson and Meeson v Pickering [1946] 1 KB 422

Yan v Post Office Bank Ltd [1994] 1 NZLR 154

TEXTS CITED: K Handley, Estoppel by Conduct and Election (2006)

G Palmer, Law of Restitution (1978) Vol 3

M Hapgood Paget's Law of Banking, 13th ed (2007)

F Reynolds, Bowstead and Reynolds on Agency, (18th ed) (2006)

K Mason and J Carter, Restitution Law in Australia (2nd ed) (2008)

PARTIES: Perpetual Trustees Australia Ltd (Appellant)

Heperu Pty Ltd (1st Respondent)

Kirisi Holdings Pty Limited (2nd Respondent)

Barry Samuel Landa (3rd Respondent)

Drymmoyne Administrative Services Pty Ltd (4th Respondent)

FILE NUMBER(S): CA 40018/2008

COUNSEL: R E Dubler SC (Appellant)

G K Burton SC; C L Cochrane (Respondents)

SOLICITORS: TressCox Lawyers, Sydney (Appellant)

Schreuders Partners Lawyers, Sydney (Respondents)

LOWER COURT JURISDICTION:

LOWER COURT FILE NUMBER(S): 6165/03

LOWER COURT JUDICIAL OFFICER: Palmer J

LOWER COURT DATE OF DECISION: 12 December 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Heperu Pty Ltd & Ors v Morgan Brooks Pty Ltd & Ors (No 2) [2007] NSWSC 1438

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40018/2008

ALLSOP P

CAMPBELL JA

HANDLEY AJA

23 April 2009

PERPETUAL TRUSTEES AUSTRALIA LTD v HEPERU PTY LTD

Headnote

Between August 2001 and November 2003 an agent of the respondents (Mr C) practised a fraud on the respondents involving the drawing and purchasing of cheques by the respondents, their delivery to Mr C for investment on the respondents’ behalf and the use by Mr C of the cheques for his own purposes. The appellant was a trustee company managing a common fund into which the cheques were deposited by Mr C. The appellant was entirely innocent of the fraud.

The primary judge found that title to the cheques did not pass to the appellant and that the appellant had converted the cheques and was liable in damages to the respondents.

The issues on appeal were:

i) whether the appellant was liable for the conversion of the cheques;

ii) whether the appellant was liable in restitution;

iii) whether the appellant was liable in negligence;

iv) whether the appellant engaged in misleading or deceptive conduct for which it was liable.

Held allowing the appeal:

Allsop P and Handley AJA (Campbell JA agreeing): i) The custody of the cheques by Mr C in the circumstances and the form of the cheques gave him authority to deal with the cheques by delivering them to the payee intended by the drawers/true owners to receive them, in this case the appellant: [55]. Title to the cheques passed to the appellant on their taking of possession of the cheques:

a. Mr C had apparent authority to deliver the cheques to pass title: [59];

b. the circumscribing condition attaching to Mr C’s delivery of the cheques to the appellant did not have to be complied with for title to pass: [65];

c. the respondents intended the appellant to take title to the cheques: [66];

d. there was no requirement of a pre-existing contractual relationship between true owner and payee other than that of the drawing and endorsement of the cheque for title to pass: [69].

There was no conversion of the cheques by the appellant, Mr C having apparent authority to pass title to cheques to the appellant who gave value, took bona fide and without notice: [50], [80], [93], [98].

ii) The respondents could not succeed in restitution as there was no unjust enrichment, the appellant having changed its position in full on the faith of the receipt: [50], [131], [133], [140]

iii) The claim based on negligence failed because, in the circumstances, there was no duty of care owed by a trustee company managing a common fund to avoid economic loss to potential investors in the fund who suffer from the dishonesty of their agents: [50], [143], [147]-[150].

iv) The claim based on misleading and deceptive conduct failed because there was no relevant misrepresentation and no relevant reliance: [50], [156]-[159].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL 40018/2008

ALLSOP P

CAMPBELL JA

HANDLEY AJA

23 April 2009

PERPETUAL TRUSTEES AUSTRALIA LTD v HEPERU PTY LTD

Judgment

1. ALLSOP P and HANDLEY AJA: This is an appeal from orders of a judge of the Court (Palmer J) that judgment be entered against the appellant in favour of the respondents for damages based on the conversion of six cheques. (See Heperu Pty Ltd v Morgan Brooks Pty Ltd (No 2) [2007] NSWSC 1438.) Introduction

2. Between August 2001 and November 2003, Mr Dominic Cincotta practised a fraud upon the respondents which involved the drawing and purchasing of cheques by the respondents. The appellant was entirely innocent of the fraud, but was found by the primary judge to have converted the cheques in question and thus to be liable to the respondents in damages.

3. The four respondents are Heperu Pty Limited (“Heperu”), the first respondent (and first plaintiff below), Kirisi Holdings Pty Limited (“Kirisi”), the second respondent (and second plaintiff below) and Drummoyne Administrative Services Pty Limited (“DAS”), the fourth respondent (and fourth plaintiff below) all being controlled by Dr Barry Landa, the third respondent (and third plaintiff below).

4. During the above period, Dr Landa paid over $4 million to Mr Cincotta for investment on his behalf. Mr Cincotta misapplied the moneys. Approximately $1 million has been recovered. Mr Cincotta is bankrupt. Dr Landa and his companies sought to recover their losses by suing a number of people. They took proceedings in the Equity Division against: (a) Morgan Brooks Pty Limited (“Morgan Brooks”) (as first defendant) being a mortgage originator or broker from and for which Mr Cincotta held a franchise;

(b) Mr Cincotta himself (as second defendant);

(c) a company, ACN 067 567 702 Pty Limited (“ACN 067”) (as third defendant) being a creature of Mr Cincotta;

(d) Patrice Cincotta, Mr Cincotta’s then wife who was referred to by the primary judge by her current name of Belle (as fourth defendant);

(e) the appellant, Perpetual Trustees Australia Ltd (“Perpetual”) (as fifth defendant);

(f) St George Bank Limited (as sixth defendant);

(g) National Australia Bank Limited (as seventh defendant); and

(h) Westpac Banking Corporation Limited (as eighth defendant).

5. The claims against the sixth, seventh and eighth defendants were settled. The primary judge found in favour of the plaintiffs against Morgan Brooks and the appellant, but dismissed the claim against Ms Belle. It should also be noted that Ms Belle was also found to be entirely innocent and in no way a party to her husband’s fraud. An appeal against the primary judge’s dismissal of the claim against Ms Belle is also before the Court. It has been listed separately because the parties failed to bring to the attention of the Registrar the fact that the two appeals were related. The delivery of judgment in this appeal has been delayed so that the related appeal could be heard by the same bench in order to avoid the risk of any inconsistency in approach. The argument in that appeal having been heard, it is now appropriate to deliver these reasons, no inconsistency being likely. The backgrounds facts

6. This appeal only concerns the found liability of the appellant, Perpetual. Nevertheless, it is important to understand the claim against Morgan Brooks in order to understand and resolve the dispute about the appellant’s asserted liability to the respondents.

7. Morgan Brooks carried on business as a mortgage originator and mortgage manager, finding non-bank lenders for people wishing to borrow on the security of a mortgage.

8. In 1994, Morgan Brooks entered into a written agreement with Mr Cincotta and his then wife, under which Mr and Mrs Cincotta were appointed as the “Coffs Harbour Agent” of Morgan Brooks.

9. In 1995, Morgan Brooks entered into an agreement with ACN 067, to which Mr Cincotta, Mrs Cincotta and another officer of ACN 067 were parties and pursuant to which ACN 067 was appointed as the “Double Bay Agent” of Morgan Brooks.

10. The primary judge concluded that these agreements were not wide enough in their terms to encompass the conduct of Mr Cincotta and ACN 067 of which complaint was made by Dr Landa and his companies. Therefore, his Honour concluded that there was no actual authority (express or implied) in Mr Cincotta or ACN 067 to act on behalf of Morgan Brooks in the way that they did, and as we shall describe.

11. Nevertheless, the primary judge concluded that a contract was formed between Morgan Brooks and Dr Landa and his companies because Morgan Brooks held out Mr Cincotta as having apparent authority on its behalf to enter into the contract for the investment of funds represented by Mr Cincotta to be available and because Dr Landa relied on that holding out in deciding to enter into the contract with an entity he believed to be Morgan Brooks. No appeal was brought by Morgan Brooks.

12. It is now necessary to return to the events in question. These events are set out in somewhat more detail than the primary judge’s findings. There is little dispute about the primary facts, though an important factual dispute must be resolved as to the proper conclusion and characterisation of the primary facts.

13. The primary judge found at [25] of his reasons that in about June 2001, Dr Landa met Mr Cincotta and his wife at a social occasion, being introduced by Dr Landa’s sister-in-law and her brother who told Dr Landa that they had invested money at call with Perpetual through Morgan Brooks. Dr Landa’s evidence was that Mr Cincotta said to him: “I’ll invest it for you at Perpetual as I am doing with Anna and Clara’s [sic]. The investment would be 8% plus 1,000 shares per million dollars invested. That would equate to about 12% per annum.”

14. There was an evident lack of precision in this conversation. Some clarity was brought to the arrangement after Dr Landa began to invest under it. Various documentation was issued by Mr Cincotta under the logo of Morgan Brooks. The first was styled a “statement of account” which identified Morgan Brooks as the “Account Manager”, Interstar Securities (Australia) Pty Limited as the “Fund Manager” and Perpetual Trustees Victoria Limited (“Perpetual Victoria”) as the “Credit Provider”. The account was in Dr Landa’s name. These statements identified a balance of moneys borrowed by Dr Landa from Perpetual Victoria, a debiting of interest on these loans and a crediting of regular payments from the investment of the borrowed funds roughly equivalent to the interest amounts.

15. The second type of document was a “direct debit confirmation” under the letter head: “Morgan Brooks Group The Professional Non Bank Lenders”

The address and details of Mr Cincotta’s Double Bay office of ACN 067 were given, as well as a list of licensed offices, impliedly, of Morgan Brooks. The document identified a loan number, the security, the loan amount, the interest rate and the account of Dr Landa from which interest on the loans would be deducted.

16. The third type of document, issued under the same letterhead and with the same details of licensed offices as the second type, was a letter issued from time to time to Dr Landa or Heperu or Kirisi which referred to “your mortgage offset account” and then set out details under the following headings: “Property at” (these were the real property securities for the borrowings from Perpetual Victoria), “Credits” (these were the sums invested), “Interest Rate” (this was 8%, being the return Mr Cincotta had said Dr Landa would receive), “Interest Frequency” (being monthly), and various headings against which Dr Landa’s bank details were identified into which the monthly interest from the investments would be credited.

17. The fourth type of document, issued under the same letterhead and with the same details of licensed offices as the second type, was a “statement of account” of Heperu and Kirisi. In this document, the account was described as “Mortgage Offset – Perpetual Trustees Ltd”. The interest rate was stated as 8% per annum. Credits of interest (that is in favour of Heperu or Kirisi) were recorded. “Offsets” were recorded in sums representing payments to a bank account of Dr Landa.

18. Dr Landa did not receive, nor did he ask for, any document from Perpetual stating that he had any account at Perpetual in his name. All the above documentation was issued under the logo and letterhead of “Morgan Brooks” by Mr Cincotta and ACN 067.

19. Dr Landa was asked about the arrangement, both in evidence in chief and in cross-examination. In chief, Dr Landa said that when he gave a cheque to Mr Cincotta, he said words to the effect “I expect these funds to be invested in the name of the drawer of the cheque”. He said that Mr Cincotta replied “This won’t be a problem”.

20. In cross-examination, Dr Landa commented that he did not seek any documentation from Perpetual because “it was for Mr Cincotta to look after” such matters. He agreed with the following propositions which were significant qualifications to what he said to Mr Cincotta about each cheque quoted above: (a) that he did not have any expectation that Mr Cincotta would necessarily open an account in the name of the relevant (paying) plaintiff;

(b) that he was leaving it to Mr Cincotta to do what he thought necessary; and

(c) that he understood that if the account that Mr Cincotta had with Perpetual in fact enjoyed a higher interest rate than 8%, Mr Cincotta need only account to him for 8%, that is, Mr Cincotta could keep any excess.

21. Though the above propositions were expressed in evidence as the subjective understanding of Dr Landa, they can be taken to inform the context, and reveal the effect, of his discussions with Mr Cincotta.

22. Sometimes, funds provided by Dr Landa were transferred directly into a bank account of Morgan Brooks by either cheque or electronic transfer. At other times, Dr Landa handed cheques to Mr Cincotta with instructions to the effect set out above that the cheques were to be given to Perpetual for investment.

The pleaded contract with Morgan Brooks

23. The Further Amended Statement of Claim (“FASC”) described the arrangement, what happened under it and the plaintiffs’ complaints against Morgan Brooks in paras 8, 11, 13 and 14. By para 8 it was alleged that in about August 2001, the first to fourth plaintiffs and Morgan Brooks entered into a contract pursuant to which the plaintiffs agreed to invest money with Mr Cincotta and/or ACN 067 acting on behalf of, or purportedly on behalf of, Morgan Brooks for the purpose of investing those moneys with Perpetual on behalf of the plaintiffs. It was alleged that Morgan Brooks agreed to repay the principal sum or sums together with interest at 8% per annum and that it would cause shares in Perpetual to be allotted or transferred to the plaintiffs at a rate of 1,000 shares per $1 million for each year invested and that it would cause the principal sum or sums to be invested with Perpetual on behalf of the plaintiffs. The formation of the contract was particularised by reference to conversations between Dr Landa and Mr Cincotta and various of the documents to which we have made reference.

24. The identification of the nature of the contractual arrangement in para 8 of the FASC is notable for two elements: first, the investment was “with” Mr Cincotta and/or ACN 067 on behalf of Morgan Brooks and Morgan Brooks was obliged to repay principal and interest, thereby creating, it would appear, a form of debtor/creditor relationship; and, secondly, the investment’s purpose was the “investing” of moneys with Perpetual on behalf of the plaintiffs. Thus, by the asserted contract, Morgan Brooks was obliged to repay sums “invested with” Mr Cincotta acting on its behalf, and such sums were to be “invested with” Perpetual. As to the first element, it should be noted, however, that para 11 of the FASC alleged that funds had been invested “with the first defendant”, that is Morgan Brooks.

25. Paragraph 13 of the FASC recited the instruction from the plaintiffs to Morgan Brooks to “repay the funds invested with the first defendant [Morgan Brooks]”.

26. Paragraph 14 of the FASC asserted the breach of contract by Morgan Brooks by the failure “to repay the amounts invested by the plaintiffs with it”, together with interest and the allocation of the Perpetual shares.

27. The contract found by the primary judge to have been made between Morgan Brooks and the plaintiffs was one entered into by them “via the agency of Mr Cincotta or ACN 067” under which they agreed to invest money with Morgan Brooks for the purpose of Morgan Brooks investing the money with Perpetual on the plaintiffs’ behalf, with Morgan Brooks agreeing to repay the sums with interest at 8%, and causing Perpetual shares to be transferred: see the primary judge’s reasons at [14] and [85]. This can be taken as a finding of the contract pleaded in paras 8, 11, 13 and 14 of the FASC. The case against Perpetual

28. The case against the appellant concerned six cheques given to Mr Cincotta by Dr Landa. Three of the cheques were personal cheques, as follows: (a) $351,000, dated 23 August 2001, signed by Dr Landa on behalf of Heperu;

(b) $502,070, dated 28 November 2001, signed by Dr Landa on behalf of Heperu.

(Both these cheques were drawn on Heperu’s account with Westpac, payable “Perpetual Trustees or bearer” crossed with two transverse enclosing the word “bank”.)

(c) $250,000, dated 9 August 2002, signed by Dr Landa on behalf of DAS.

(This cheque was drawn on DAS’ account with Westpac, payable “Perpetual Trustees or bearer” and was crossed in the same manner as the first two cheques.)

29. After two of the three personal cheques were received by Perpetual, a further crossing was put on them by stamp, “not negotiable a/c payee only”.

30. The other three cheques were Westpac bank cheques, as follows: (a) $342,857 dated 27 September 2001;

(b) $302,875 also dated 27 September 2001; and

(c) $995,452.50 dated 19 December 2002.

(Each of these cheques was payable to “Perpetual Trustees Australia Limited or bearer”. Each was crossed “not negotiable” between two transverse lines.)

How the six cheques were dealt with

31. Mr Cincotta was given the six cheques by Dr Landa. Mr Cincotta took them to Perpetual, as instructed. At Perpetual, Mr Cincotta controlled an account that had been opened in 1995, which was in his wife’s name. Mr Cincotta had apparently forged Mrs Cincotta’s signature in opening this account as to the authority to operate the account. No particular importance is to be placed on the nature of this forgery in the reliability of the primary judge’s conclusion that it took place. It was an account called a “cash management fund”, which paid interest at call, with variable market daily rates. No investment product was offered by Perpetual with the characteristics of that described by Mr Cincotta to Dr Landa, as a so-called mortgage offset account. Mr Cincotta instructed Perpetual to invest the cheques in the cash management fund to the credit of Mrs Cincotta’s account.

32. Thereafter, the appellant arranged for the collection of the six cheques by depositing them with the National Australia Bank in an “Income Series Application Account”, by way of a holding account. The proceeds of cheques of all customers to be invested in the cash management fund were then transferred to an account with the ANZ Bank. No separate bank accounts were kept by Perpetual for individual customers.

33. The primary judge recited the relevant circumstances concerning investment in Perpetual’s cash management fund at [146]-[149] and [151]-[155] of his reasons: “[146] Between about 1995 and about 1999 Perpetual application forms for investment in one of its cash management funds (both as to original investments and additional investments) stated that cheques were to be made out to ‘Perpetual Trustees Australia Limited’ . There was no explicit requirement that the account or name of the intended beneficiary appear in the name of the payee. The relevant prospectuses attached only forms for the making of original investments in a cash management fund.

[147] Between about 1995 and about 1999, Perpetual made available ‘stand alone’ forms for investment to financial advisers and investors for the purpose of making additional investments in a cash management fund. Those stand alone forms stated ‘ make cheque payable to ‘Perpetual Trustees Australia Limited’ .

[148] The prospectuses for the period 2001 to 2002 provided that an original investment had to be by an application form attached to the prospectus. Then followed the statement:

‘The cheque must be made payable to:

‘PIML – PCMF – [Insert name of applicant(s)]’

– and crossed ‘Not Negotiable’.

[149] Later appeared the statement:

‘ If you would like to add to your investment, you will need to complete a form available from Perpetual or notify Perpetual in writing. The minimum additional investment is $200.

Perpetual will confirm your investment in writing.

...

[151] In directions for the completion of the application form at the back of the prospectus, the instruction was repeated as to how cheques were to be drawn. There followed the statement ‘Perpetual reserves the right to limit or refuse to accept an investment’ . Further on in the instruction is the statement: ‘Perpetual has an absolute discretion to accept or reject any application’ . Perpetual places great weight on these statements as indicating a policy that Perpetual reserved the right to accept a cheque for investment, no matter what appeared on it. I do not think that these statements go so far. I think that they say no more than that Perpetual is not obliged to accept an investment. It does not tell the reader that Perpetual will accept cheques which are not drawn in accordance with the previous instruction.

[152] The investment application made in 1995 by Mr Cincotta on behalf of Ms Belle was on a form which stated: ‘Make cheque payable to Perpetual Trustees Australia Ltd’ . The application for original investments was changed by Perpetual in 1999. That form stated that the investor must be named as part of the payee. Perpetual’s practice was still to accept cheques for additional investments which did not specify the name of the investor as part of the name of the payee, if the cheque was made out to Perpetual Trustees and the form was otherwise substantially completed.

[153] It remained the practice of Perpetual, after changing the application forms for original investments in the prospectus, to use the previous ‘stand alone’ form, including the 1999 stand alone form, and more recently produced stand alone forms which required that the name of the account holder appear as part of the name of the payee of the cheques. Perpetual’s practice was generally to accept cheques for additional investments in a cash management fund provided they were accompanied by sufficient written notification of the relevant account holder and the fund.

[154] Dr Landa’s first cheque for $351,000, dated 23 August 2001, was accompanied by an application form in the 1999 stand alone format. The cheque was made payable to ‘Perpetual Trustees or bearer’ rather than ‘Perpetual Trustees Australia Ltd’. It was accepted in accordance with Perpetual’s practice.

[155] The following table shows, in respect of each Dr Landa’s cheques, particulars of the cheque, what type of cheque, how the payee was made out, and what the then current application form required as to the particulars of the payee:

‘Cheques Amount Date cheque drawn Type Application form instruction Cheques made out to Form used

$351,000.00

23 August 2001 Personal Perpetual Trustees Australia Limited Perpetual Trustees or bearer 1999 ‘Stand alone’ form for additional investment

$342,857.00

3 October 2001 Bank PIML-PIFS – [insert the name of applicant(s)] Perpetual Trustees Australia Limited or bearer 2001 Stand alone form for additional investment

$302,875.00

3 October 2001 Bank PIML-PIFS – [insert the name of applicant(s)] Perpetual Trustees Australia Limited or bearer 2001 Stand alone form for additional investment

$502,070.00

28 November 2001 Personal PIML-PIFS – [insert the name of applicant(s)] Perpetual Trustees or bearer 2001 Stand alone form for additional investment

$250,000.00

13 August 2002 Personal PIML-PIFS – [insert the name of applicant(s)] Perpetual Trustees or bearer 2001 Stand alone form for additional investment

$995,452.50

20 December 2002 Bank Perpetual Trustees Australia Limited Perpetual Trustees Australia Limited or bearer 1999 ‘Stand alone’ form for additional investment

34. After the proceeds of each of the cheques were received into Perpetual’s ANZ account, Perpetual allocated units (1 unit for each $1) to the account of Mrs Cincotta.

35. Mr Cincotta used the funds in Mrs Cincotta’s account for his own purposes and not for purposes for the benefit of Dr Landa. The claims of Dr Landa against Perpetual

36. Dr Landa claimed against Perpetual for: (a) conversion of the six cheques in question; (b) for moneys had and received based on the mistake of Dr Landa, induced by the fraud of Mr Cincotta, in believing that the money would be invested with Perpetual or based on the failed purpose of investment with Perpetual; (c) for negligence; and (d) for misleading or deceptive conduct contrary to the Fair Trading Act 1987 (NSW), s 42 and the corresponding provisions dealing with misleading or deceptive conduct in the Australian Securities and Investments Commission Act 1989 (Cth), the Corporations Law, and the Corporations Act 2001 (Cth).

37. Amongst Perpetual’s various defences it pleaded that Dr Landa was estopped from denying the authority of Mr Cincotta, the essence of which was described by the primary judge at [158] of his reasons as: “[158] … – it acted in accordance with the mandate on the face of the cheque in collecting the cheque;

– by drawing the cheque in favour of Perpetual Dr Landa intended to pass title to Perpetual, that title has passed to it and it is, at most, a voidable title subject to Perpetual’s defences;

– Perpetual paid away the proceeds of the cheques before it had notice of Dr Landa’s title so that it has not been unjustly enriched;

– Dr Landa clothed Mr Cincotta with apparent authority to deposit the cheques and to deal with them as he did so that his claims in conversion and for money had and received are estopped.”

The conclusions and reasoning of the primary judge

38. The primary judge concluded that Perpetual was liable for the conversion of the six cheques. His Honour also rejected Perpetual’s defences.

39. The primary judge made the following findings at [11] of his reasons in an introduction to the claims against Perpetual: “Dr Landa borrowed substantial sums from Perpetual Trustees Victoria Ltd (‘PTV’) in order to invest the borrowed funds with Perpetual pursuant to an investment scheme, called an ‘offset mortgage account’, which was to result in a profit to Dr Landa. The ‘offset mortgage account’ scheme did not exist: it was an illusion fraudulently created by Mr Cincotta. PTV is a related company of Perpetual but is not a party to these proceedings.”

(emphasis added)

40. It was common ground that Perpetual did not offer an account styled “offset mortgage account” or one that operated in the way described by Mr Cincotta to Dr Landa.

41. The primary judge’s conclusions as to conversion were encapsulated in [165] of his reasons: “[165] In the present case, Mr Cincotta held Dr Landa’s cheques on Dr Landa’s behalf. As the supposed investment scheme with Perpetual which had been proposed by Mr Cincotta was a fraudulent illusion from the very beginning, Mr Cincotta had no authority to do anything at all with the cheques which Dr Landa had given him. The title in the cheques remained in Dr Landa. Innocent though Perpetual was of any wrongdoing, it is nevertheless liable in conversion, subject to its defence of estoppel.”

(emphasis added)

42. The primary judge then referred to the Queensland Court of Appeal decision in Voss v Suncorp-Metway Limited (No 2) [2003] QCA 252; [2004] 1 QdR 214 (though the primary judge referred to the case as “Voss v Davidson”) and the Victorian Court of Appeal decision in NIML Ltd v MAN Financial Australia Ltd [2006] VSCA 128; 15 VR 156 in concluding that conversion had been established and that the defence of estoppel could not succeed. The primary judge relied heavily on Voss.

43. The primary judge summarised the facts in Voss at [160]-[161] of his reasons: “[160] In Voss v Davidson …, Mr Voss asked the advice of his accountant, Mr Ripper, about investing the proceeds of the sale of his farm. Mr Ripper advised him to invest in ‘ an overseas fund ’ and that he was able to arrange such an investment through his contacts with a large international firm of accountants. He told Mr Voss to draw a cheque in favour of ‘Southern Pacific Equities Unit Trust’ and to deliver the cheque to him for deposit with that Trust. Mr Voss complied with that direction.

[161] Mr Ripper immediately had a trust deed prepared constituting a trust entitled ‘Southern Pacific Equities Unit Trust’ . He was the sole beneficiary of that Trust. He opened a savings account with a bank in the name of ‘Southern Pacific Equities Unit Trust’ and deposited Mr Voss’ cheque into that account. The bank collected the cheque and Mr Ripper made off with the proceeds. Mr Voss sued the bank in conversion.”

44. The trial judge’s approach in Voss was described by the primary judge at [162] of his reasons: “[162] The trial judge held that, even though Mr Voss remained the true owner of the cheque because of Mr Ripper’s fraud in inducing delivery of the cheque to him, nevertheless the bank did not deal with the cheque in a way which was unauthorised by Mr Voss. The bank did what Mr Voss authorised it to do, namely, it deposited the proceeds of the cheque into the account of the payee named on the face of the cheque. The judge dismissed Mr Voss’ claim in conversion. Perpetual makes the same submissions in this case.”

45. The primary judge described the approach of the Queensland Court of Appeal (in allowing the appeal) at [163]-[164] of his reasons: “[163] The Queensland Court of Appeal allowed an appeal by Mr Voss. The judgment of Davies JA (with whom the other judges agreed) on this point is so apt to the present case that I quote it in full ([12]-[13]):

‘The central question in determining whether, leaving aside for the moment the defences raised of estoppel and absence of negligence, Suncorp converted Voss' cheque is whether the fact that it received the cheque into an account in the same name as that on the face of the cheque meant that it did not deal with the cheque in a manner repugnant to Voss' rights. The principle in this respect was comprehensively stated by Diplock LJ in Marfani & Co Ltd v Midland Bank Ltd in the following terms:

‘At common law one's duty to one's neighbour who is the owner, or entitled to possession, of any goods is to refrain from doing any voluntary act in relation to his goods which is a usurpation of his proprietary or possessory rights in them. Subject to some exceptions which are irrelevant for the purposes of the present case, it matters not that the doer of the act of usurpation did not know, and could not by the exercise of any reasonable care have known, of his neighbour's interest in the goods. This duty is absolute; he acts at his peril.

A banker's business, of its very nature, exposes him daily to this peril. His contract with his customer requires him to accept possession of cheques delivered to him by his customer, to present them for payment to the banks on which the cheques are drawn, to receive payment of them and to credit the amount thereof to his own customer's account, either on receipt of the cheques themselves from the customer, or on receipt of actual payment of the cheques from the banks on which they are drawn. If the customer is not entitled to the cheque which he delivers to his banker for collection, the banker, however, innocent and careful he might have been, would at common law be liable to the true owner of the cheque for the amount of which he receives payment, either as damages for conversion or under the cognate cause of action, based historically on assumpsit, for money had and received.’

Plainly Ripper held the cheque on Voss' behalf. He was not beneficially entitled to it and had no authority to pay it into an account to which he was solely entitled beneficially. Yet that is what he did. And if he had no entitlement to it when he delivered it to Suncorp for collection, Suncorp, however innocent and careful it might have been, was, subject to the specific defences referred to later, liable in conversion to Voss as the true owner for the amount of which it received payment.’

[164] At [48]-[50] Williams JA added:

“In this case, as the learned trial judge held (and as was conceded by counsel for the respondent on appeal) the appellants were at all material times the true owners of the cheque, there can be no doubt that in the circumstances the respondent converted the cheque in question. The learned trial judge came to a different conclusion because "Suncorp did what Mr and Mrs Voss had actually or apparently authorised: the depositing of the cheque into an account in the name of Southern Pacific Equities Unit Trust." His reasoning appears to have been that in doing what it did there was no "unauthorised assumption [by the respondent] of the powers of the true owner.

In most of the cases where it has been held that a cheque has been converted by a collecting bank, the cheque in question has been deposited into an account meeting the description of the named payee. That was certainly the position in cases such as Lloyds Bank v The Chartered Bank of India and Marfani . As Diplock LJ said in the passage referred to above, conversion is a tort "of strict liability in which the moral concept of fault in the sense of either knowledge by the doer of an act that is likely to cause injury, loss or damage to another or lack of reasonable care to avoid causing injury, loss or damage to another plays no part." It follows that in the present case the respondent converted the cheque in question according to principles of common law”.

46. Then, based on the findings at [165] his Honour found Voss directly applicable at [166]-[170] of his reasons: “[166] In Voss , the bank submitted that Mr Voss was estopped from denying that Mr Ripper was authorised to pay the cheque into the account named on the face of the cheque and was estopped from asserting that the bank had converted the cheque by paying out the proceeds to Mr Ripper. It relied solely on Mr Voss’ acts of purchasing the bank cheque in the form that it was and handing it to Mr Ripper as clothing Mr Ripper with that authority and thereby creating the estoppel.

[167] In the present case, Perpetual relies on virtually the same acts of Dr Landa. He drew the private cheques, and purchased bank cheques, showing Perpetual as the payee and he gave those cheques to Mr Cincotta. Dr Landa had no dealings at all with Perpetual, although, curiously, Perpetual says that that very fact also clothed Mr Cincotta with apparent authority and created an estoppel. However, I think that this last submission is an over-refinement. What Dr Landa did was no more or less than Mr Voss did. If Perpetual had made some enquiry of Dr Landa to which he did not respond, his silence would have been of significance. However, absent an enquiry, his silence signified nothing to Perpetual.

[168] In Voss , Davies JA accepted that a defence based upon estoppel is available in a claim for conversion. His Honour continued:

‘But this would be so only where the true owner has so acted as to mislead the collecting bank into the belief that the person so depositing the cheque was entitled to do so. The application of that principle to the facts of this case does not avail Suncorp.

By purchasing the cheque in the form in which it was and handing the cheque to Ripper, Voss did not represent to Suncorp, and plainly did not do so clearly and unambiguously, that Ripper was authorized to pay the cheque into a bank account which was, in effect, his own personal account; nor did he in any other way act so as to mislead Suncorp into believing that. On the contrary his representation, which was on the face of the cheque, was that Ripper had a limited authority to deposit the cheque only in the account of the trustee of a unit trust described as ‘Southern Pacific Equities Unit Trust’. The account into which it was deposited was not that of a unit trust or even of a trust.

Nor did Voss in fact mislead Suncorp. Suncorp would have acted in the same way even if there had been a genuine trust of that name already in existence; and would have acted in the same way even if Ripper had stolen the cheque. Suncorp, in acting in the way in which it did, relied solely upon Ripper's fraudulent representation, by his production of a sham trust deed, that the account which Ripper opened was the trust account of the unit trust named in the cheque.’

[169] In the present case, in drawing the private cheques and procuring bank cheques in favour of ‘Perpetual Trustees’ or ‘Perpetual Trustees Ltd’ and nothing more, Dr Landa did not represent to Perpetual that Mr Cincotta was authorised to direct payment of those cheques into any particular account. It was Mr Cincotta’s own act in providing a forged application by Ms Belle which induced Perpetual to deal with the cheques as it did, just as the production by Mr Ripper of a trust deed and opening of an account in the name of the non-existent investment trust procured the bank to deal with Mr Voss’ cheque as it did.

[170] Perpetual’s defence of estoppel cannot succeed. Perpetual is liable in damages for conversion in an amount equal to the face value of the cheques converted, less whatever has been repaid to Dr Landa by Mr Cincotta, together with interest under s 100 Civil Procedure Act 2005 (NSW) …”

47. The primary judge did not deal with the other bases of Dr Landa’s claims. Accordingly, it was unnecessary for his Honour to consider Perpetual’s cross-claim against Dr Landa for contribution as a co-tortfeasor. The issues on appeal

48. The amended notice of appeal contains eight grounds, of appeal as follows: 1. The trial judge erred in relying upon and failing to distinguish the decision of the Queensland Court of Appeal in Voss v Davidson [2003] QCA 252.

49. The trial judge erred in finding that at all material times, title to the Cheques listed in the Schedule to this Notice of Appeal (“the Cheques”), remained with the Respondents.

2A. The trial judge erred in finding that as the investment scheme was a fraudulent illusion from the very beginning, Mr Cincotta had no authority to do anything at all with cheques.

3. The trial judge erred in failing to find that title to the Cheques passed to the Appellant upon the Appellant obtaining possession of the Cheques.

4. The trial judge erred in finding that the Appellant converted the Cheques.

5. The trial judge erred in finding that the Respondents did not represent to the Appellant that Mr Dominic Cincotta was authorised to direct payment of the Cheques into any particular account.

6. The trial judge erred in failing to find that Mr Cincotta and/or Morgan Brooks had authority to deliver the cheques to the Appellant.

7. The trial judge erred in finding that the Appellant’s defence of estoppel did not succeed.

8. A notice of contention sought to justify the orders on the basis of the grounds not dealt with by the primary judge: moneys had and received, negligence and misleading and deceptive conduct.

9. For the reasons that follow, we would allow the appeal. In summary, our views are that: (a) there was no conversion of the cheques by Perpetual, Mr Cincotta having apparent authority to pass title to the bearer cheques to Perpetual who gave value, took bona fide and without notice;

(b) there was no unjust enrichment, Perpetual having changed its position in full on the faith of the receipts;

(c) the claim in negligence must fail because there was no relevant duty of care; and

(d) the claim based on misleading or deceptive conduct fails because there was no misrepresentation and no relevant reliance.

Conversion

51. Essential to the respondents’ success below were the findings by the primary judge at [165] of his reasons and recited at [41] above.

52. To say, as the primary judge did, that the supposed investment scheme was a “fraudulent illusion from the beginning” is a colourful way of restating that Dr Landa (and his companies) were induced by fraud to part with the cheques. It does not follow that Mr Cincotta had no authority whatsoever. Though induced by fraud to give him the cheques, Mr Cincotta was authorised to deliver, as agent, the cheques to Perpetual, with a clear condition that that delivery be for the purpose of investing on behalf of the respondents. Mr Cincotta, plainly, was not intended to take possession of the cheques as “holder” (as defined in the Cheques Act 1986 (Cth), s 3), but rather to take custody as agent for delivery. Delivery, being the transfer of possession of a cheque from one person to another (the Cheques Act, s 3), is essential for the transfer of title: the Cheques Act, ss 25 and 26 (cf Bills of Exchange Act 1909 (Cth), s 26(1) and (2)). Delivery by an agent is not excluded by the Cheques Act: see s 4(2) thereof.

53. The cheques were not delivered to Mr Cincotta to take title and no negotiation to him took place for the purposes of the Cheques Act, ss 29 and 40(3).

54. Until the cheques were delivered to Perpetual, the respective respondents were the true owners, and entitled to immediate possession, of the cheques.

55. The role of Mr Cincotta as an agent for delivery was not negated by his fraud. A real contract had been entered into (which has been affirmed and sued upon). He was authorised to deliver these cheques to Perpetual; that authority was, of course, conditioned by the requirement that the investment be for the respondents’ purposes. It can be accepted that Mr Cincotta did not have actual authority to deliver the cheques to Perpetual without obeying the condition of his authority that in each case the cheque be invested for the benefit of the respective respondent. Nevertheless, his custody of the cheques with authority (albeit fraudulently obtained) and the form of the cheques themselves gave him sufficient authority to deal with them by delivery to the recipient/payee intended by the drawers/true owners to receive them.

56. If A procures from B, by means of deception, a cheque in favour of C, which is delivered to C who receives it bona fide, without notice and for value, C will obtain title to the cheque on which B remains liable to C: Watson v Russell (1862) 3 B & S 34 at 38-39; 122 ER 14 at 16 (Crompton J); Clutton v Attenborough & Son [1897] AC 90 at 93 (Lord Halsbury LC) and 95 (Lord Shand); Talbot v Van Boris [1911] 1 KB 854 at 863 (Farwell LJ); RE Jones Ltd v Waring & Gillow Ltd [1926] AC 670 at 681 (Viscount Cave) and 695 (Lord Sumner); Hasan v Willson [1977] Lloyd’s Rep 431 at 443-444 (Robert Goff J); Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 at 535 (Hutley JA); Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1988) 18 NSWLR 420 at 431-432 (Giles J as his Honour then was); Orix Australia Corporation Ltd v M Wright Hotel Refrigeration [2000] SASC 57; 155 FLR 267 at 272-274 [26]-[36] (Bleby J); Citibank NA v Brown Shipley & Co Ltd; Midland Bank plc v Brown Shipley & Co Ltd [1991] 2 All ER 690 at 699, 701 and 702 (Waller J), followed in Yan v Post Office Bank Ltd [1994] 1 NZLR 154 at 160 (New Zealand Court of Appeal); Dextra Bank and Trust Co Ltd v Bank of Jamaica [2002] 1 All ER (Comm) 193 at 198-201 [17]-[25], especially at 200 [22] (Privy Council); and Sanwa Australia Finance Ltd v Finchill Pty Ltd [2001] NSWCA 466.

57. It is important to appreciate that the intention of the drawer as to who is the intended payee is to be assessed principally by reference to what the cheque says (at least by someone, such as the payee, to whom the cheque is delivered in apparently regular circumstances): cf Hunter BNZ Finance Ltd v Australia and New Zealand Banking Group Ltd [1990] VR 41 at 46 (Tadgell J, as his Honour then was).

58. It can be accepted that Mr Cincotta’s deliveries of the cheques to Perpetual with applications for investment in the name of Mrs Cincotta were acts contrary to his actual authority and inconsistent with the rights of the owners at those times, the respective respondents.

59. This being so, the authority to deliver the cheques to Perpetual to pass title to Perpetual is best seen as apparent authority arising from the form of the cheques and the authorised custody for the purpose of delivery (albeit in accordance with the accompanying condition or instruction): Handley Estoppel by Conduct and Election (2006) Sweet and Maxwell at [3-028]-[3-032] pp 63-66.

60. The appellant’s submissions were put somewhat more broadly, as not requiring value by Perpetual, but relying on the intention to deliver to, and pay, the named payee, albeit induced by fraud, as long as the cheque was taken bona fide and without notice. Support for this way of putting the principle can be found in Hunter BNZ v Maloney. It is also consistent with the recognition of the fact that the relevant issue is the passing of title in a chattel, that is the cheque. The question of value is bound up with the nature of the title taken by Perpetual (including any question of voidability), a question also dealt with in Hunter BNZ v Maloney, to which we will come.

61. The respondents denied the validity of the above conclusions on a number of grounds. The respondents first relied on Voss, by adopting Palmer J’s approach to, and application of, that case (see [43]-[46] above).

62. Voss is clearly distinguishable. The “entity” which was the payee and intended recipient (if it existed at all) was a creature of the rogue, Mr Ripper, clearly having notice and not bona fide. Further, on one view, at the time the cheque in Voss was written, the “trust entity” did not exist. The lack of passing of title in the cheques can be seen for either or both these reasons.

63. The lack of authority of the rogue in Voss to pay the funds into the account of his creature, the trust, conforms entirely with the above cases to the effect that a payee intended to be the recipient of the cheque who takes bona fide and without notice takes title (leaving aside for the moment the question of value).

64. Secondly, the respondents submitted that the line of cases relied on by the appellant and referred to above was binding authority only insofar as the original true owner intended to vest title in the cheque in the intended payee for its own benefit, which, it was submitted, was not the case here.

65. We reject this submission. The face of the cheque was clear: cf Hunter BNZ Finance v ANZ at 46 (Tadgell J). Perpetual was the intended payee. The argument is essentially one that is denied by the cases themselves: that the condition attaching to the agent to deliver must be complied with for title to pass: see Orix at 275 [40] and Sanwa at [24] and [26].

66. Here, Perpetual was not a mere subterfuge for Mr Cincotta. It was intended to receive the cheques and to take the funds in performance of the contract with Morgan Brooks. Clearly, the respondents intended Perpetual to take title to the cheques.

67. The respondents relied on The Great Western Railway Company v The London and County Banking Company Limited [1901] AC 414 in support of the proposition based on “own benefit”. There, one Huggins (the rogue), by false pretences, obtained from the appellant a cheque made out to “Huggins or order” for the payment of rates said to be owed to Huggins’ employer. The issue was whether Huggins had title to the cheque (it being crossed not negotiable). It was held that he did not, being handed to him as “collector and agent of the overseers in payment of a debt alleged to be due to them. The appellants never intended to vest any property in him for his own benefit, but the property in the cheque was intended to be passed to his employer, the overseers, notwithstanding that it was made payable to Huggins’ order”: at 419 (Lord Davey); see also 418 (Earl of Halsbury LC) and 422 (Lord Brampton), but compare 424 (Lord Lindley). The point to which the phrase “for his own benefit” was directed by Lord Davey was that Huggins (despite the face of the cheque, cf Hunter BNZ v ANZ at 46 per Tadgell J) was not intended to take title to the cheque; he was only an agent. As Giles J noted in Hunter BNZ v Maloney at 431, there was not unanimity in Great Western as to the question of title: compare Earl of Halsbury LC at 418, Lord Davey at 419 and Lord Brampton at 422 with Lord Lindley at 424 with whom Lord Shand agreed, at 419. Here, Mr Cincotta was not intended to act otherwise than as an agent.

68. In this context, the respondents also relied upon Morison v London County and Westminster Bank Limited [1914] 3 KB 356. This case involved a rogue who, upon receiving blank cheques, drew them for his own use. There was no intention to pass title to the rogue.

69. Thirdly, it was submitted that the relevant respondents remained the true owners of the cheques unless the cheques reached the intended recipient in circumstances where the payment was being made pursuant to a concluded contract. Here, there was no underlying contract at all between each relevant respondent and Perpetual. It was submitted that this requirement was reflected in Citibank v Papandony [2002] NSWCA 375 at [64]-[65] and at first instance in that case, Papandony v Citibank [2002] NSWSC 388 at [10], [13]-[16] and [34], and in Associated Midland Corporation Ltd v Bank of New South Wales (1984) 51 ALR 641 (High Court).

70. To the extent that the submission contemplates the necessity of a binding bilateral contract between the true owner and the intended payee, apart from the contract arising out of the drawing or endorsement of the cheque contemplated by the Cheques Act, s 26, for title to pass to the intended payee, we reject it.

71. The texts and cases do distinguish between circumstances where the cheque is delivered pursuant to a voidable contract and one whereby there is no contract and no title passes from the true owner: see the discussion by Gzell J at first instance in Papandony at [13]-[16] and Hodgson JA on appeal in Papandony at [64]-[65]. There will, undoubtedly, be circumstances in which the legal character of the underlying events can be seen to be a nullity whereby no title can be seen as passing to the recipient of the cheque. Here, however, there was a contract: one between the true owner in each case and Morgan Brooks “pursuant to which” (see FASC para 11) the investments were “made … with [Morgan Brooks]” (see FASC paras 11, 13 and 14). That contract, which authorised and required investment of these cheques with Perpetual, has not been avoided, rather it has been affirmed and sued on. In these circumstances, there was an independent contractual basis, if one be needed, for the intention to pass title in the cheques to Perpetual.

72. The lack of any need for an independent pre-existing contractual relationship is made good by the decision of this Court in Sanwa at [18]-[19] agreeing with Giles J in Hunter BNZ v Maloney at 431 in this respect. To the extent that the contrary may be discernible from the judgment of Tadgell J in Hunter BNZ v ANZ at 47, Sanwa and Hunter BNZ v Maloney are to be preferred.

73. In this context, it is perhaps important to say something more about the found contract between the respondents and Morgan Brooks. Whilst it can be accepted that Morgan Brooks’ obligation was to invest the moneys with Perpetual on behalf of the respondents (see FASC para 8), the communications which founded the contract could not by their terms have required an account directly in the name of the relevant respondents or a trust account. The form of the account with Perpetual was left to Mr Cincotta, who was entitled to retain any returns over 8%.

74. We do not think that this meant, however, that Mr Cincotta or Morgan Brooks became the true owner of the cheques prior to delivery to Perpetual. For the reasons earlier expressed, Mr Cincotta was only holding the cheques as agent.

75. Fourthly, it was submitted by the respondents that Perpetual acquired only a voidable title to the cheques and that title was avoided by the demand of the respondents made on 4 December 2003 or by the commencement of these proceedings. The demand made in December 2003 was upon Morgan Brooks for repayment in accordance with the contract.

76. The respondents submitted that, upon avoidance, the title of the respective true owner related back retrospectively to the date of the fraud and so vested in the true owner title to sue Perpetual in conversion. The respondents submitted that Perpetual did not give value for the cheques and no injustice would be caused to it by withdrawing its title and submitting it to liability for conversion, retrospectively.

77. Perpetual seeks to meet these arguments in a number of ways. First, it says that the relevant contract that it was necessary to avoid (which, of course, was never avoided) was that with Morgan Brooks. This is not an answer. The cheques could have been retrieved by Dr Landa at the counter at Perpetual as Mr Cincotta was depositing them. If no value was given by Perpetual (a topic to which we will come) the respondents could avoid the (apparent) authority of Mr Cincotta to deal with the cheques as he did.

78. Whilst the underlying contract and its limited authority to Mr Cincotta to invest the cheques with Perpetual (circumscribed, as it was, by being for the benefit of the respondents) was important in the founding of the apparent authority to pass title without complying with the circumscribing condition, it was not necessary to avoid this contract to terminate the effect of the apparent authority.

79. That the passing of title to Perpetual might be avoided does not, however, answer the question whether Perpetual can be sued retrospectively in conversion for doing acts which, at the time they were done, had the cover of title (since, on this hypothesis, avoided). Reference was made to Hunter BNZ v Maloney at 432-438 and especially 433-434 and in support of the availability of a retrospectively founded action in conversion. It is not clear that this is support for the proposition. Hodgson JA in Citibank v Papandony at [68] also doubted this, saying: “… if what the appellant did at the time had been no conversion at all because authorised by the then true owner, I do not think subsequent rescission could change this into a conversion: in that respect, I would adhere to what I said in Shirlaw v Lewis; and if Hunter BNZ v Maloney suggests the contrary, I would respectfully disagree. If a subsequent rescission could have this effect, it would mean that, if A transfers property to B pursuant to a contract induced by B’s fraudulent misrepresentation, and B transfers some of this property in turn to C, a bona fide purchaser for value, and A subsequently rescinds the contract (being content to recover from B such property as B then retained), C might retrospectively become guilty of conversion. I do not accept that this could be so. In those circumstances, the intervention of C’s rights would not in my opinion preclude rescission by A, but would prevent A recovering such a title to the property in question as would defeat C’s title or make C guilty of conversion.”

(Meagher JA agreed. Heydon JA reserved his position on the issue, it being unnecessary to decide it.)

80. Like Hodgson JA, we have difficulty in understanding how a party with title when it acts can be guilty of conversion by reason of a later avoidance of his title at general law. One is not dealing with a statutory relation back period as under bankruptcy legislation; rather, one is dealing with general law avoidance. A close analogy can be found in the treatment of the avoidance provisions in the Statute of Elizabeth and like provisions in bankruptcy legislation in which the word “void” has always been construed as voidable. In such circumstances, where a party sells property subject of defeasible title, and an avoidance later occurs, the property or its proceeds can be recovered in specie or its sale proceeds traced based on a proprietary remedy, but the vendor who had taken the defeasible title is not personally liable, in conversion or otherwise: Brady v Stapleton (1952) 88 CLR 322 at 334-335.

81. The position of the respondents is not advanced by cases such as Bristol and West of England Bank v Midland Railway Company [1891] 2 QB 653 and London Joint Stock Bank Ltd v British Amsterdam Maritime Agency Ltd (1910) 16 Com Cas 103 referred to in M Hapgood Paget’s Law of Banking (13th ed) (2007) Butterworths at [23.7] p 576 under the heading “Action based upon after-acquired title” that was relied upon by the respondents. In Bristol and West of England Bank, a plaintiff who acquired title from the bailor after the bailee wrongfully parted with the goods was held entitled to sue for the wrongful refusal of the bailee to deliver the goods on demand after he had acquired title. In British Amsterdam Maritime Agency the plaintiffs’ title to sue the defendant for conversion was made good, after the relevant act of conversion, by the endorsement of the bill of lading to them (compare the position in relation to a suit in negligence: Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (‘The Aliakmon’) [1986] AC 785 and Margarine Union G.m.b.H. v Cambay Prince Steamship Co (The ‘Wear Breeze’) [1969] 1 QB 219). Neither Bristol and West of England Bank nor British Amsterdam Maritime Agency supports a proposition permitting avoidance or rescission of the defendant’s title thereby transforming, retrospectively, a lawful dealing by it into an unlawful one.

82. Perpetual also denies that Mr Cincotta was relevantly fraudulent. It pointed out that the FASC (at paras 35(2) and 44(2)) identified the fraud as the representation that accounts would be set up either in the respective plaintiffs’ names or accounts in the name of Morgan Brooks for the respondents. It was submitted that the evidence did not support these allegations. Whilst the evidence did not support (and was indeed contrary to) any notion of a direct account or a trust account, it did support a notion that the funds would be invested in a way that was for the benefit of the respondents. This would not have prevented an account being opened in Morgan Brooks name into which the funds could be placed without any need for a trust. That, however, is not what happened. The proceeds of the cheques were put into an account in Mr Cincotta’s wife’s name, controlled by him, intended to be used by him otherwise than for the benefit of the respondents and thereafter so used by him.

83. Perpetual also submitted that it gave value and that rescission would be unjust because it, as an innocent third party, acquired for valuable consideration rights under and in reliance upon the voidable transaction. Perpetual relies on the nature of the transaction under which it took the cheques. Upon receipt, funds were invested in the cash management fund for the ultimate benefit of all those investing likewise. Perpetual entered into or continued with a contractual relationship with Mrs Cincotta performing investment services for which it received a reward. Further, real injustice would occur since it paid out the account before notice of any irregularity. In this respect, it relied on Orix at 275 [40]; NIML v MAN Financial Australia Ltdand Lloyd’s Bank Limited v The Chartered Bank of India Australia and China [1929] 1 KB 40 at 56.

84. The later drawings on the account can be seen as a benefit conferred on Mrs Cincotta through Mr Cincotta, being a facility supplied under the cash management account, on the faith of the legitimacy of the receipt: Orix at 275 [40]. We deal more fully with the notion of “on the faith of the receipt” in dealing with restitution below.

85. The circumstances of the receipt by Perpetual are that it received the cheques, collected them in its holding account and, after clearance, credited value to the account holder (Mrs Cincotta) under an account in respect of which it agreed to provide benefits including provision of an interest rate pursuant to the terms of the prospectus and the right in the investor to withdraw funds at call. In commercial terms, these were matters of agreement sufficient to found consideration, as between Perpetual and the account holder.

86. The nature of the cash management fund, the steps taken in the receipt of invested funds and the operation of the cash management fund were described in the evidence by an officer of Perpetual, Ms McCoy. Perpetual was not a bank, but a trustee company, one of whose functions was the management of investment funds. One fund established and operated was the cash management fund in question, which was established as a common fund, originally in accordance with the Trustee Companies Act 1984 (Vic). The fund was compliant with the Trustee Companies Acts of New South Wales (1964), Queensland (1968) and the Australian Capital Territory (1947). The fund was registered as a managed investment scheme in 2000. The fund, at the time of the events in question, contained in the order of $1 billion in investments from investors directly or through financial advisers.

87. As a common trust fund under the above legislation, the fund was held by Perpetual as trustee: see Trustee Companies Act 1964 (NSW), s 16. (Equivalent provisions are found in Trustee Companies Act 1984 (Vic), s 40, Trustee Companies Act 1947 (ACT), ss 25B-25J, Trustee Companies Act 1968 (Qld), s 36, Trustee Companies Act 1988 (SA), s 15, Trustee Companies Act (Tas), s 18C.) We will use references to the New South Wales Act. Perpetual was required to determine the class of investments into which moneys may be invested: s 16(2). Investments made into the fund were not to be made in any particular investor’s name, nor did they belong to any particular investor, but Perpetual was required to keep an account of each investor’s entitlements: s 16(4). Profits and losses were to be borne by the investors proportionately: s 16(5). Perpetual was required, at least once a month, to determine the value of the investments in the common fund: s 16(11). Investments or withdrawals were to be effected on the basis of the last valuation: s 16(1). At least every 6 months, Perpetual was required to pay or allocate the income arising from the trust fund proportionately to investors: s 16(12).

88. We have earlier set out Perpetual’s banking procedures upon receipt of funds. After clearance and movement into the ANZ account the moneys were “unitised” by converting the monetary amount into a corresponding unit value. For the cash management fund, this was nominal because each unit was valued at $1.

89. Redemptions (which could be made by telephone) could not be paid in cash – only by cheque or transfer to a nominated bank account.

90. The question of value should be assessed in the relevant statutory context. The Cheques Act, s 37 (cf the Bills of Exchange Act, s 32(2)) refers to: “Where value has at any time been given for a cheque, the holder shall, as regards the drawer and indorsers who became indorsers before that time, be conclusively presumed to have taken the cheque for value.”

91. By the Cheques Act, s 3 “value” is defined as “valuable consideration as defined by section 35.”

92. Section 35 is in the following terms: “Valuable consideration defined

(1) Valuable consideration for a cheque may be constituted by:

(a) any consideration sufficient to support a simple contract; or

(b) an antecedent debt or liability.

(2) An antecedent debt or liability may constitute valuable consideration for a cheque whether or not the cheque is post-dated.”

93. Perpetual did not collect the funds from the paying bank, through its own collecting bank, as agent. Rather, it collected them as a trustee of a common fund to invest in a common fund in its business as a fund manager for investors, unitising the funds received from all as a manager of a managed investment scheme. In such circumstances, Perpetual, once it accepted the funds, agreed to deal with them pursuant to the terms of the prospectus, manage the investments and credit a return on the units allocated. In our view, this was giving value.

94. If we are wrong about that, the giving of access to the funds before being notified of the fraud would make it unjust to permit avoidance in a manner to prejudice Perpetual.

95. We have approached the question of passing of title based on apparent authority. The application of the cases referred to at [56] above could arise in circumstances of actual or apparent authority. To a significant extent, the scope of any actual or apparent authority will be determined by the facts of the particular case, in particular the extent and nature of the express and implied authority and the nature and relevance of any attendant dishonesty or failure to follow instructions. In our view, the better analysis here is that the limited actual authority and the form of the cheques gave Mr Cincotta apparent authority to deal with the cheques as he did.

96. It is necessary to deal with some of the respondents’ further submissions that deal with apparent authority, although they were made in the context of dealing with the question of estoppel.

97. As Perpetual points out in its submissions in reply, the issue is not so much one of estoppel, but rather whether under and by reference to the general law and the Cheques Act, s 25 Mr Cincotta had relevant authority to pass title. This is an important distinction, because Davies JA in Voss, in a passage cited and relied on by the primary judge at [168] of his reasons (see [46] above), said that estoppel would only be a defence to conversion if “the true owner had so acted as to mislead the collecting bank into the belief that the person so depositing the cheque was entitled to do so.” London Joint Stock Bank v Simmons [1892] AC 201 at 215 (Lord Herschell) is support for such a proposition.

98. The cases to which we have earlier referred are not illustrative of a defence to conversion, but of the passing of title to the intended payee by delivery by an agent with actual (though limited or circumscribed) authority to deliver to the intended payee, but who, in fraud of the true owner and without notice to the bona fide payee, delivers to the payee without obeying the condition or circumscription. In these circumstances, the agent for the purpose of taking the cheque in that form to deliver it to the intended payee, has apparent authority to pass title unless the circumstances of its delivery to the intended payee put the payee on notice of an irregularity: see also Smith v Prosser [1907] 2 KB 735; Lloyd’s Bank Ltd v The Chartered Bank of India, Australia and China at 56-57; NIML v MAN Financial Australia at [19] (Nettle JA).

99. The limits on the doctrine of apparent authority in the context of bills of exchange and cheques are not without difficulty. It is important to recall the facts here. The three bank cheques bore no mark of any limitation on the authority of Mr Cincotta. Though crossed “not negotiable”, they were bearer cheques in the hands of a person (in fact an agent with custody) who appeared to be in possession of the cheques and to be a holder.

100. The three personal cheques were drawn by the respondent companies. They were drawn, as we have indicated, to bearer. They were not crossed “not negotiable” and were thus drawn as fully negotiable instruments. As such, they were cheques which required the drawee institution (see the definition in the Cheques Act, s 3) to pay the sum ordered to the bearer. As bearer cheques, they were capable of transfer by negotiation, if delivered by the holder to another person: Cheques Act, s 40(3). The cheques were crossed. The word “bank” was not effective as a crossing: Cheques Act, s 53 (2). The two transverse lines were an effective crossing as a direction by the drawer to the drawee institution not to pay the cheque otherwise than to a financial institution: Cheques Act, s 54. (We deal here with the cheques in the form and with the crossings as taken by Perpetual.)

101. There was nothing on the face of the three personal cheques to impugn Mr Cincotta’s apparently lawful possession of them. Indeed, the cheques, as bearer negotiable instruments, carried the representation that the holder was entitled to deal with them. The special position of negotiable instruments in the context of apparent authority has been often recognised: for example, see Wilson and Meeson v Pickering [1946] 1 KB 422 at 428. In London Joint Stock Bank v Simmons at 215, after Lord Herschell had stated the general rule relied on by Davies JA in Voss (see [97] above), on the same page, his Lordship said: “[t]here is an exception to the general rule, however, in the case of negotiable instruments. Any person in possession of these may convey a good title to them, even when he is acting in fraud of the true owner, and although such owner has done nothing tending to mislead the person taking them ”.

(emphasis added)

See also Dextra at 200-201 [22]-[25] and Yan at 161.

102. Mr Cincotta was not a holder, but a mere custodian; nevertheless, the face of the three personal cheques were a representation of authority in the hands of the apparent holder.

103. The additional, but later, crossings on two of the three personal cheques did not alter the above position.

104. Considerable effort in submissions was made by the respondent in seeking to show that Perpetual had failed to exhibit prudence or care in dealing with the cheques. Perpetual was said to have a heightened duty because it was a trustee. Reliance was placed on Perel v Australian Bank of Commerce (1924) 24 SR (NSW) 62 at 75-76; James v Oxley (1938) 61 CLR 433 at 443-444, 446-447, 449-450 and 455-456; and Tasmanian Primary Distributors Pty Ltd (in liq) v RC and MB Steinhardt Pty Ltd (1994) 13 ACSR 92 at 97. At times the submissions treated (wrongly) the cheques as third party cheques; at times Perpetual’s status as a trustee was emphasised.

105. Depending on the circumstances, context and relevant question, a trustee’s or fiduciary’s duties may exceed those of a bank. In the end, however, the submissions had to rely on a duty to make investigations (with the drawers of the personal cheques, with the issuer of the bank cheques (Westpac) and with Mr Cincotta) concerning the legitimacy of Mr Cincotta’s right to deal with the cheques when, on their face, as drawn, or provided, by the respondents there was no warrant to treat them other than bearer instruments payable to Perpetual at the direction of the drawers and the apparent holder.

106. In our view, Perpetual was not negligent, whether by reference to a standard applicable to a banker or one applicable to a trustee operating a common fund.

107. The primary judge noted, at [12] of his reasons, that it was not asserted that Perpetual had notice of the fraud of Mr Cincotta.

108. It is not necessary to explore the extent to which constructive notice could undermine the apparent authority of Mr Cincotta to pass title to Perpetual: cf F Reynolds Bowstead and Reynolds on Agency 18th ed (2006) Sweet & Maxwell at [8-050]-[8-063]. In Hasan v Willson at 444, Robert Goff J, after referring to Tatam v Haslar (1889) 23 QBD 345 and Raphael v The Bank of England (1855) 17 CB 161 at 174 and 175; 139 ER 1030 at 1035-1036, dealt with the question of notice, in the context of the taking of title to a bill of exchange, by reference to actual notice and wilful abstention from inquiry. This approach is consistent with the long-expressed view that lack of negligence is not a pre-condition for the transfer of title to a bill of exchange by delivery from someone who, as against the true owner, has no right to transfer the bill: Foster v Pearson (1835) 1 CM & R 849 at 855-856; 149 ER 1324 at 1327 (Parke B); Bank of Bengal v Fagan (1849) 7 Moore PC 61 at 72; 13 ER 802 at 806; Raphael v The Bank of England at 174-175; and London Joint Stock Bank v Simmons at 219 and 221 (Lord Herschell).

109. In Bentinck v London Joint Stock Bank [1893] 2 Ch 120 at 128, North J referred to London Joint Stock Bank v Simmons and said that facts might exist that show that a bank had notice of something which would have led to the suspicion of dishonesty. That was said, however, in the context of good faith and should not be seen as introducing any species of constructive notice in dealing with negotiable instruments: London Joint Stock Bank v Simmons at 221, where Lord Herschell said: “One word I would say upon the question of notice, and being put on inquiry. I should be very sorry to see the doctrine of constructive notice introduced into the law of negotiable instruments. But regard to the facts of which the taker of such instruments had notice is most material in considering whether he took in good faith. If there be anything which excites the suspicion that there is something wrong in the transaction, the taker of the instrument is not acting in good faith if he shuts his eyes to the facts presented to him and puts the suspicions aside without further inquiry.”

110. It is unnecessary to discuss the role to be played in this context by concepts such as “objective dishonesty”: Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378; Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164 at [35]; Barlow Clowes International Ltd (in liquidation) v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476 at [15]; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. There was no suggestion that Perpetual was in anyway dishonest or that it had actual notice of Mr Cincotta’s fraud. Given the face of the cheques it could not reasonably have been alerted to any relevant suspicion.

111. It is necessary to deal with a decision of this Court published shortly after the hearing of this appeal: MBF Australia Ltd v Malouf [2008] NSWCA 214. There, a Mr Hill practised a fraud on Mr Malouf under which Mr Hill said that he could arrange a USD 5 million business loan that required an insurance policy with a premium of $165,000. Mr Malouf purchased and provided a bank cheque for $165,000 to Mr Hill for the premium. Mr Hill’s company (SRL) was negotiating with MBF for a lease of MBF’s property. A lease document was executed by SRL and returned accompanied by (Mr Malouf’s) cheque for $165,000, for rent in advance. Mr Malouf brought proceedings against MBF. The primary judge held that Mr Hill held the bank cheque on trust for Mr Malouf and that MBF was bound by that trust. Hodgson JA (with whom Ipp JA agreed) held that Mr Hill’s fraud was equivalent to theft and a trust arose immediately. Hodgson JA referred to Evans v European Bank Limited [2004] NSWCA 82; 61 NSWLR 75 at [111]-[116] (Spigelman CJ, with whom Handley and Santow JJA agreed) concerning the equitable consequences of the holding of stolen property.

112. It is to be noted that MBF only took the cheque in discharge of obligations of SRL under the lease, if and when such obligations arose. Before any such obligations arose, Mr Malouf alerted MBF to Mr Hill’s conduct, thereby putting it on notice of Mr Hill’s behaviour, before rights in respect of the cheque arose. Thus, MBF had notice before it took such rights. MBF did not, in those circumstances, take the cheque bona fide and without notice.

113. The reasoning in MBF v Malouf does not require any approach or conclusion different from that which we have outlined. Mr Cincotta can be seen to hold the cheques for the respondents as agent. If, somehow, all had been revealed before Mr Cincotta took the cheques to Perpetual, it may be that notions of trust would properly intrude into the analysis. Here, however, a contract was made with Morgan Brooks under which the cheques were to be “invested with” Morgan Brooks in the manner we have described. It is not appropriate to sweep away those legal arrangements and simply solve the problem by an trust impressed on the funds based on theft. Even if it be thought appropriate, here, to employ a trust analysis, there is no basis to conclude that Perpetual had the requisite notice for the “first limb” of Barnes v Addy (1874) 9 Ch App 244: Farah Constructions v Say-Dee Pty Ltd at [123]-[129]. In any event, such a case was not pleaded.

114. For the above reasons, in our view, Perpetual obtained title to the six cheques in question and did not commit conversion in relation to them. Moneys Had and Received

115. The trial judge did not address this claim.

116. The claim was put as follows. Each payment was made under a fundamental mistake of fact – being the belief that the respondent would receive an investment for his or its benefit in Perpetual’s cash management fund. It was mistakenly believed that this had been received. This mistake gave rise to a prima facie right of recovery, to which there was no relevant defence.

117. Alternatively (and severally and cumulatively) it was submitted that the cheques were drawn and payments made pursuant to anticipated contracts that did not materialise, being the investments with Perpetual on behalf of the relevant respondents for their exclusive benefit; that the special purpose for drawing the cheques and making the payments was not carried out; that the respondents received no, or substantially no, consideration for the payments; and that the payments were pursuant to a contract (if any contract be found, which the respondents denied) that was vitiated by fraud. Again it was asserted that Perpetual had no defence.

118. Before turning to some relevant authorities, it is first necessary to identify some of the difficulties posed to this structure of the claims by the facts. On the material, plainly, Dr Landa did not necessarily expect accounts in the names of the respondents. He did expect that the investments would be made for his and his companies’ benefit. In the circumstances of the apparent freedom in terms of the details of any account or accounts to bring that about, the belief can be seen to be no more than one that Mr Cincotta would honestly attempt to place the funds with Perpetual to earn funds in furtherance of the contract entered. Implicit in that was a belief of Dr Landa that he would not be cheated.

119. In furtherance of the purpose of investing, a contract was formed with Morgan Brooks. That has been affirmed, sued on and found. The payments were made under the contract that exists. It was not part of that contract that there would be accounts in the name of the respondents or that the funds would be held on trust and not mixed. No term said as much. The investment was in, or with, Morgan Brooks and only 8% per annum was required to be paid (irrespective of any return from the Perpetual investment).

120. In our view, the pleaded beliefs in FASC para 39(1) that Dr Landa believed that the moneys would be held in an account specifically for him and his companies were not reflected in the contract entered with Morgan Brooks.

121. The cheques were, however, paid to Perpetual by the respondents being induced by fraud to do so. Subject to relevant defences, we are prepared to assume that this gave a prima facie right of recovery. That assumption is not without its difficulties. There has been no conversion by Perpetual. The payments were made under a contract that remains on foot and that has been affirmed, being a contract that gives full recompense in damages for the agreement struck (notwithstanding the fraud) and which assumes an obligation to repay the principal sums reflected by the cheques.

122. Perpetual received the funds. It did so in running a cash management fund for investors. In doing so, it collected the funds from the paying bank (through its own collecting bank) and in consideration of the receipt of those funds allocated units to Mrs Cincotta’s account. Though this operated as the commercial equivalent to a bank account, Perpetual received the funds for itself, to invest in the relevant fund, but with the obligation to allocate units to Mrs Cincotta’s account.

123. Perpetual submitted that it was a mere agent or conduit and could rely on cases such as Australia and New Zealand Banking Group Limited v Westpac Banking Corporation (1988) 164 CLR 662 and Port of Brisbane Corporation v ANZ Securities Limited [2002] QCA 158 for the proposition that when a mere intermediary (even if not a bank) receives the proceeds of a cheque as an agent or trustee of a principal and pays out the proceeds to the principal before notice of the vitiating factor then a claim against that intermediary will fail because of a lack of unjust enrichment. Perpetual also relied on its change of position before notice of the fraud, being the disbursement of funds from the redemption of the units previously allocated to Mr Cincotta.

124. The submissions put by the parties were elaborate, complex and detailed. It is sufficient to deal with them by identifying why, by reference to essential principle, Perpetual is not liable in restitution.

125. First, it is necessary to be precise about Perpetual’s position. It received the funds as controller and manager of an investment fund being a common trust fund as earlier described. It allocated monetary units equivalent to respective receipts and earnings upon receipt and clearance of funds. It recognised the rights of the investor to be repaid at call an equivalent amount as deposited, plus declared earnings.

126. The right to recover in restitution in circumstances such as the present, whether viewed as payment under mistake or induced by fraud was recognised by David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353. Underpinning recovery is the “unifying legal concept” of unjust enrichment: David Securities at 375; Pavey and Matthews Pty Limited v Paul (1987) 162 CLR 221 at 256-257 and ANZ v Westpac at 673.

127. The so-called defences to restitutionary claims are circumstances which the law recognises make an order for restitution unjust. As Mason CJ, Wilson J, Deane J, Toohey J and Gaudron J said in ANZ v Westpac at 673: “It is a common law action for recovery of the value of the unjust enrichment and the fact that specific money or property received can no longer be identified in the hands of the recipient or traced into other specific property which he holds does not of itself constitute an answer in a category of case in which the law imposes a prima facie liability to make restitution. Before that prima facie liability will be displaced, there must be circumstances (e.g, that the payment was made for good consideration such as the discharge of an existing debt or, arguably, that there has been some adverse change of position by the recipient in good faith and in reliance on the payment) which the law recognizes would make an order for restitution unjust.”

128. In Lipkin Gorman v Karpnale Ltd [1988] UKHL 12; [1991] 2 AC 548 Lord Goff (with whom Lord Bridge of Harwich, Lord Griffiths and Lord Ackner agreed) made clear (at 578) that it is the inequitable retention of money or benefit which lies at the root of both the injustice of the enrichment and the related concept of change of position (578-580). Likewise, Lord Templeman (with whom the same Lords agreed as agreed with Lord Goff) spoke of the necessity to remain unjustly enriched (560). This notion of continuance of the injustice of the enrichment through retention is not to be defeated by a view that once the prima facie right to repayment arises, the unjust enrichment has been proven for all time. It is certainly the case that the injustice of the receipt and the right to recovery is prima facie enlivened by the relevant legal circumstance accompanying the payment: here, the mistake or the fraud: see David Securities at 379. The necessity for the retention to remain unjust can be seen to be the clear justification for a defence of change of position. Such a defence has been recognised by the High Court: David Securities at 385-386, where their Honours said: “If we accept the principle that payments made under a mistake of law should be prima facie recoverable, in the same way as payments made under a mistake of fact, a defence of change of position is necessary to ensure that enrichment of the recipient of the payment is prevented only in circumstances where it would be unjust. This does not mean that the concept of unjust enrichment needs to shift the primary focus of its attention from the moment of enrichment. From the point of view of the person making the payment, what happens after he or she has mistakenly paid over the money is irrelevant, for it is at that moment that the defendant is unjustly enriched. However, the defence of change of position is relevant to the enrichment of the defendant precisely because its central element is that the defendant has acted to his or her detriment on the faith of the receipt. In the jurisdictions in which it has been accepted (Canada and the United States), the defence operates in different ways but the common element in all cases is the requirement that the defendant point to expenditure or financial commitment which can be ascribed to the mistaken payment. In Canada and in some United States decisions, the defendant has been required to point to specific expenditure being incurred because of the payment. Other cases in the United States allow a wider scope to the defence, such that a defendant can rely upon it even though he or she cannot precisely identify the expenditure caused by the mistaken payments. In no jurisdiction, however, can a defendant resort to the defence of change of position where he or she has simply spent the money received on ordinary living expenses.” (footnotes omitted)

See also at 379.

129. The operation of the defences to the multitude of circumstances where claims for restitutionary recovery may arise will be informed by the unifying legal concept of unjust enrichment. This assists one to appreciate the inappropriateness of any pedantic or rigid approach to the defences: Lord Goff in Lipkin Gorman at 580-581 [36] and Dextra at 204 [36], just as the underlying unifying legal concept justified the rejection of the distinction between mistake of law and mistake of fact as a primary basis for recovery: David Securities at 375 and 385. See also K Mason and J Carter, Restitution Law in Australia, (2nd ed) (2008) Butterworths at 864 [2413].

130. Here, it may not be entirely accurate to equate Perpetual with the intermediary contemplated by their Honours in ANZ v Westpac at 673-674. Nevertheless, as their Honours said in ANZ v Westpac at 674: “… the courts will pay regard to the substance rather than to the form of what has occurred.”

131. Here, Perpetual has paid away to Mrs Cincotta (though, in truth, Mr Cincotta) funds represented by the units credited on the faith of the receipt. There is no basis for finding that sums were paid to Mrs or Mr Cincotta otherwise than on the faith of the cheques previously received from him. The payments out of the account can be ascribed to the receipts obtained through the fraud of Mr Cincotta.

132. The respondents submitted that Perpetual had not proven that the payments of funds out of the account were made on the faith of the receipt. It was submitted that Perpetual paid out the funds represented by the account on the faith of what was told to it by Mr Cincota, in the original forgery of Mrs Cincotta’s signature at the opening of account and in telephone redemptions.

133. This, with respect, is far too narrow an analysis. Of course, communication with Mr Cincotta and his dishonesty was the occasion for withdrawal; but, the payments are to be taken as on the faith of the receipts because they would not have been made unless the receipts had been recognised as valid. These were not loans to him; they were withdrawals or redemption of units credited by reference to the value of receipts. The payments would not otherwise have been made, the change of position being thereby causally linked to the receipt: G Palmer Law of Restitution (1978) Vol 3 at section 16.8 (e) p 524; United Overseas Bank v Jiwani [1976] 1 WLR 964 at 968; Scottish Equitable plc v Derby [2001] 3 All ER 818 at 827 [31] Robert Walker LJ (as his Lordship then was), Simon Brown LJ (as his Lordship then was) and Keene LJ agreeing; Rural Municipality of Storthoaks v Mobil Oil Canada Ltd (1975) 55 DLR (3d) 1 at 13 (Martland J speaking for the Canadian Supreme Court); Jones v Commerzbank AG [2003] EWCA Civ 1663 at [54] (Munby J); Dextra at 204 [37]; and generally C Mitchell “Change of position: the developing law” (2005) LMCLQ 168.

134. Given that the relationship between Perpetual and Mrs Cincotta (through Mr Cincotta) was defined by the receipts received by it and given that there is no issue but that the contents of the cash management account were paid out by Perpetual, it can hardly be gainsaid that the payments out were made on the faith of the receipts, that is on the assumption that the receipts were lawful and available to be drawn against.

135. The respondents submitted that the defence of change of position was not made out here because of the asserted negligence of Perpetual in dealing with the cheques. Assuming the relevance of negligence in Perpetual to the defence of change of position, for the reasons elsewhere expressed, we do not think that Perpetual can be seen to have been negligent.

136. It is not clear that negligence by Perpetual would lead to a denial of the operation of the defence. It may be that lack of reasonable enquiries of the payer before money is paid away may be a factual foundation for lack of good faith or that some knowledge of “tell tale” signs would likewise found such an argument: K Mason and J Carter op cit at 870 [2421]. For the reasons earlier expressed, however, we do not consider that Perpetual, even recognising its status as a trustee, was negligent.

137. Before leaving the topic of moneys had and received and change of position, it is necessary to deal with State Bank of New South Wales v Swiss Bank Corporation (1995) 39 NSWLR 350. It was submitted that the defence of change of position requires more than a belief in the fact of receipt. It was submitted that there was also required to be information from the payer, which, if true, would have entitled the payee to deal with the receipt as it did. The respondents submitted that the payer was the party seeking recovery for the unjust enrichment, here, the respondents.

138. It is necessary to appreciate the context of the decision in Swiss Bank. The State Bank received a $20 million deposit. It thought that the funds were the proceeds of a loan to one of its customers (Essington Ltd) and it paid out practically all of the money on Essington’s instructions. The Court (Priestley JA, Handley JA and Sheller JA) said the following at 355-356: “State Bank of New South Wales submitted that it had paid away the funds believing in good faith that Essington Ltd was entitled to them. That ‘good faith’ must, in our opinion, be linked to the payee acting on the faith of the receipt (repeating the emphasis in David Securities Pty Ltd (at 385). This is inherent in the passage where the italicised words appear. The court held that the critical moment for the payer is when payment is made, for it is then the unjust enrichment occurs. The critical moment for the payee is the moment of the change of position but that, in order to be relevant, must be on the faith of the receipt.

It seems to us that knowledge derived otherwise than from the payer cannot be relevant in deciding whether a change of position by the payee occurred on the faith of the receipt. This view is supported by the following considerations. If the funds had been transmitted to State Bank of New South Wales without

explanation it could not possibly have treated itself as entitled to use them for any purpose without further inquiry from Swiss Bank. Similarly if the amount had been transmitted with a message saying ‘This is repayment of your overnight loan with interest’, State Bank of New South Wales could only have

sent the money back for it knew it had made no such loan. In either case State Bank of New South Wales could not have been acting on the faith of the receipt if it disbursed the funds to third parties. A bank which receives a mistaken payment and disburses it can only bring itself within the change of

position defence if it shows that at the time of disbursement it knew or thought it knew more than the fact of receipt standing alone. This must be information which, if true, would entitle the payee to deal with the receipt as it did and that

information must have come from the payer.

State Bank of New South Wales seeks to rely on information derived from Essington Ltd on whose instructions it paid the money away. Putting it slightly differently, State Bank of New South Wales' case is that the Clearing House Inter Bank Payment System message told it the money was for its TOS account, it took that to mean for a customer, and for reasons which had not

come from Swiss Bank and were extraneous to the Clearing House Inter Bank Payment System message, it decided that Essington Ltd was the customer. This was a mistake brought about by the fraud of Messrs Sothirasan and Singh. The

disbursement of Swiss Bank's money by State Bank of New South Wales was not on the faith of the receipt from Swiss Bank but on the faith of what Mr Edwards had told Mr West. It may be granted that State Bank of New South Wales was acting in good faith in the sense that it was not intending to defraud anyone, but the good faith it had to show was that it had “acted to its detriment on the faith of the receipt” and in our opinion its own case shows that it did not do this.

Looked at on its own terms State Bank of New South Wales' submission has an element of the fantastic about it. It says that it received this very large payment with a message from Swiss Bank saying: ‘Credit this to the account you keep for customers.’ Nothing more than that. State Bank of New South Wales' case involves the propositions: (a) that it was for it to decide which

customer should be credited; and (b) that it credited Essington Ltd because Essington Ltd asked it to do so. On the judge's findings what State Bank of New South Wales did was not dishonest but on anybody's view it was not sensible and in our opinion it was not done on the faith of the receipt.”

139. Care should be taken not to overextend the application of what was said by the Court beyond the facts. On the facts, the State Bank simply did not act on the faith of the legitimacy of the receipt, but on what Essington (not the payer) told it. True it is that a payee must know more than the fact of mere receipt. It must have information that entitles it (on the basis of the information) to deal with the receipt. The requirement that the information came from the “payer” can be seen as no more than a requirement that the change of position be on the faith of the receipt and its attendant circumstances. The point in the case was that the change of position arose from reliance upon the statements of Essington, not upon the faith of the receipt and its validity. We do not view what was said by the Court as narrowly constraining the notion of acting on the faith of the receipt. There needs to be a foundation of information obtained in connection with the receipt to justify acting on the basis of the receipt. That was absent in Swiss Bank.

140. Here, it is artificial and unrealistic to view the respondents as the necessary source of any information. Mr Cincotta had custody (and apparent possession) of the cheques and directed that their proceeds be credited to the account he controlled. On the basis of the information on the face of the cheques and in the documentation filled out by Mr Cincotta in connection with the investment or deposit into the cash management fund, Perpetual plainly believed that the credit was lawfully directed to the account of Mrs Cincotta. On the faith of that receipt and surrounding information attendant upon receipt, it later permitted its investor (Mrs Cincotta, through Mr Cincotta) to withdraw the funds.

141. In our view, the claim in moneys had and received fails, Perpetual having made out that it changed its position on the faith of the receipts to the full extent of the payments. The tort of negligence

142. The claim of the respondents in negligence requires at its foundation a duty of care owed by Perpetual to persons in the position of the respondents directed to the prevention of the type of harm that occurred.

143. Here, the proposition must be that a trustee company in the position of Perpetual owes a duty in and about the conduct of its business of managing a common trust fund to exercise care to avoid financial or economic loss to potential investors in the fund (using that phrase in a wide sense to encompass people who do not intend any account to be opened in their names) who entrust cheques to agents to invest on their behalf, and who suffer from the dishonest disobedience of instruction by those agents.

144. The respondents expressed the relevant duty in their submissions as the duty to take reasonable care in all or any of the following: “a. in ensuring that the instructions which it issued (on the manner in which cheques were to be handed to it for the purposes of investment with it) specified that the name of the investor would be part of the name of the payee on the cheque and that the cheque would accompany the application form;

b. in ensuring that cheques handed to it for the purpose of investment with it had the name of the investor as part of the name of the payee on the cheque and would accompany the application;

c. in ensuring, prior to receiving a relevant cheque, that investors complied with the instructions which it issued on the manner in which cheques to be handed to it for the purposes of investment with it were to be made out as to name of payee;

d. in ensuring that investors used the then current application form and that old investment forms were not accepted for investment;

e. in establishing and following a system which required, prior to receiving a relevant cheque, an inquiry to be made of the drawer of the cheque or of the issuing bank of a bank cheque as to whom purchased its bank cheque if there was not specified as part of the payee the name of an investor;

f. in establishing and following a system which required, prior to receiving a relevant cheque, an inquiry to be made of the drawer of a cheque if the name of the investment which was being made with that cheque did not correspond with the name of the drawer of the cheque;

g. in establishing and following a system which required, prior to receiving a relevant cheque, an inquiry to be made of the drawer of a cheque or the issuing bank of a bank cheque as to whom purchased its bank cheque if a suspect transaction report had issued in relation to an investment account into which the cheque was sought to be invested.”

145. We reject these submissions.

146. In Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278 at [105] Allsop P said the following, by way of summary, as to the duty of care in respect of economic loss: “The circumstances in which the common law will impose a duty of care to avoid causing pure economic loss have been the subject of considerable debate and uncertainty in Australia since Caltex Oil (Australia) Pty Limited v The Dredge “Willemstad” [1976] HCA 65; 136 CLR 529. Since then, in a series of cases in the High Court culminating in Woolcock Street Investments v CDG ( Bryan v Maloney [1995] HCA 17; 182 CLR 609; Hill v Van Erp [1997] HCA 9; 188 CLR 159; Esanda Finance Corporation Limited v Peat Marwick Hungerfords [1997] HCA 9; 188 CLR 241; Pyrenees Shire Council v Day ; and Perre v Apand ) the High Court has identified an approach based on the presence, in the particular circumstances, of “salient features” that, when combined, constitute or reflect a sufficiently close relationship to give rise to a duty of care. Such salient features include the inherent likelihood of the production of economic loss ( Caltex at 136) and assumption of responsibility and known reliance ( Bryan v Maloney and the negligent misrepresentation cases). The most important of these features, however, is vulnerability, in the sense discussed in the joint reasons of Gleeson CJ, Gummow, Hayne and Heydon JJ in Woolcock Street Investments v CDG at 530 [23]:

‘Vulnerability’, in this context, is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken. Rather, ‘vulnerability’ is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. ”

Beazley JA and McColl JA agreed at [199] and [200], respectively.

147. Here, Dr Landa and the other respondents were not vulnerable. There were various steps capable of being taken by him and them to exercise greater control and security over the large sums of money they entrusted to Morgan Brooks and Mr Cincotta. Perpetual were not responsible for the circumstances which made the respondents vulnerable in the conduct of their affairs to Mr Cincotta.

148. Perpetual and the respondents had no direct relationship. Dr Landa and the respondents were content for any deposit with Perpetual to be through Morgan Brooks, not in their own names, as long as it was for their benefit on their behalf.

149. There was no assumption of responsibility to the respondents by Perpetual whether from prior dealing or otherwise.

150. There was no reliance by the respondents on Perpetual.

151. The casting of a duty upon Perpetual of the kind suggested would make it potentially liable to a large and unknown class of persons, in effect, to protect them against the fraud of their own agents.

152. We see no basis to impose the duty or duties alleged on Perpetual.

153. Detailed submissions were put on breach of duty and contributory negligence. Given the variety of ways that the duty was pleaded, and the clarity of the view that we hold that there is no duty, we do not propose to lengthen these reasons by an alternative analysis based on each of the aspects of the asserted duty. It is sufficient to refer to our views, expressed earlier, that Perpetual was not negligent. Misleading or deceptive conduct

154. The essential nature of the case is to be gleaned from the written submissions as follows: “The respondents contend that the fact that the appellant issued:

a. from at least about June 2001 application forms for investment in its relevant products which stated that the name of the investor was to be included as part of the payee on a cheque by which the investment was made, and

b. prospectuses on about 11 May 2001 or about 8 May 2002 which stated that the name of the investor was to be included as part of the payee on a cheque by which the investment was made and that the said cheque was to accompany the application form for the investment,

gave rise to the following representations and, further and in the alternative, in the absence of any disclaimer gave rise to the following reasonable expectations in an intending investor in the relevant products at any point in time between about June 2001 and about 31 December 2002:

c. PTA [Perpetual Trustees Australia] ensured, or in the alternative took reasonable care to ensure, that investors complied with the instructions which it issued on the manner in which cheques to be handed to it for the purposes of investment with it were to be made out as to name of payee;

d. PTA ensured, or in the alternative took reasonable care to ensure, that cheques handed to it for the purpose of investment with it had the name of the investor as part of the name of the payee on the cheque and would accompany the application;

e. PTA ensured, or in the alternative took reasonable care to ensure, that investors used the then current application form and that old investment forms were not accepted for investment;

f. PTA had in place and followed a system which ensured, or which took reasonable steps to ensure, either or both of the matters in (c) and (d);

g. PTA had in place and followed a system which required, prior to depositing a relevant cheque, an inquiry to be made of the drawer of a cheque or of the issuing bank of a bank cheque as to whom purchase its bank cheque if there was not specified as part of the payee the name of the investor;

h. PTA had in place and followed a system which required, prior to depositing a relevant cheque, an inquiry to be made of the drawer of a cheque if the name of the investment which was being made with that cheque did not correspond with the name of the drawer of the cheque.”

155. The misleading conduct was then expressed in the submissions as follows: “Each of the representations described above was not correct and, further and in the alternative, each reasonable expectation described above was not met or was not corrected by disclosure of the true position, by reason of the following:

a. Each of the cheques was accepted for investment even though it did not comply with the requirements of the application form which accompanied it and even though none specified the name of the investor as part of the payee as required by the then current application form.

b. The cheque for $351,000.00, the cheque for $250,000.00 and the cheque for $995,452.50 and the accompanying application forms were accepted for investment even though the form in each case was not the then current application form.

c. Each of the personal cheques was accepted for investment even though it did not comply with the requirements of any application form issued by PTA at any relevant time.

d. At no relevant point after about June 2001 (the end relevant point being about 31 December 2002) did PTA have in place any of the systems described above.

e. No inquiry was made of the drawer of any of the cheques or of the issuing bank of any of the bank cheques as to who had purchased its bank cheque even though none of those cheques specified as part of the payee the name of the investor.

f. No inquiry was made of the drawer of any of the three personal cheques even though none of those cheques was being invested in a name that corresponded with the name of the drawer of the cheque.

g. The true position as described in sub-paragraphs (a) to (e) above was not disclosed to intending investors.”

156. There are at least two reasons why this claim fails. First, the application forms and prospectuses do not give rise to the representations.

157. Secondly, there was no evidence at all of any reading of, or reliance upon, the documents said to give rise to the representations by Dr Landa or anyone on behalf of the respondents or anyone who influenced the decision of the respondents to invest with Morgan Brooks and Mr Cincotta.

158. The respondents seek to counter this second point by submitting that neither knowledge of nor reliance upon the representations is necessary for the relevant causal link required by reference to the provisions referred to at [36], such as the Fair Trading Act, s 68. It is said that without the misleading or deceptive conduct the loss would not have occurred. This mistates the nature of the failure to comply with the statutory norm. The misleading conduct (on this hypothesis) was inaccurately telling people that Perpetual had a system that worked in a particular way. The operation of the fund (which conduct, on this hypothesis, allowed Mr Cincotta to perpetrate his fraud) was not what was misleading. The system of working may have been defective so as to allow Mr Cincotta to succeed in his fraud. What was misleading (as alleged, and on this hypothesis) was telling people that Perpetual had a system different to that which existed.

159. If a relevant person (who could be either the investor or anyone who caused the investor to act) was ignorant of that statement, the statement cannot be seen to have anything to do with the investment and later loss of the money in question. If authority be needed for the above, see Janssen Gilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 at 530-531; and Panton v Bailey [2004] NSWCA 12 at [2]. Conclusion

160. In our view, the appeal should be allowed, orders 5, 6 and 7 made by the Court on 12 February 2008 against the fifth defendant be set aside and in lieu thereof there be judgment for the fifth defendant against the plaintiffs, with the plaintiffs to pay the fifth defendant’s costs. The respondents should also pay the appellant’s costs of the appeal, but have certificates under the Suitors’ Fund Act 1951 (NSW), if qualified.

161. CAMPBELL JA: I agree with Allsop P and Handley AJA. **********

10/11/2009 - typographical errors - Paragraph(s) [79], [83]