Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd - [2012] NSWCA 225 - NSWCA 2012 case summary — Zoe

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Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd

[2012] NSWCA 225

Court of Appeal (NSW)|2012-06-13|Before: Macfarlan JA, Barrett JA, Gummow J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2012-06-13

Before

Macfarlan JA, Barrett JA, Gummow J

Catchwords

150 ER 537 Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
223 CLR 1 Dovuro Pty Ltd v Wilkins [2003] HCA 51
215 CLR 317 Equuscorp Pty Ltd v Haxton [2012] HCA 7
86 ALJR 296 Falcke v Scottish Imperial Insurance Company (1886) 34 Ch D 234 Grissell v Robinson (1836) 3 Bing NC 10

Source

Original judgment source is linked above.

Catchwords

150 ER 537 Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12223 CLR 1 Dovuro Pty Ltd v Wilkins [2003] HCA 51215 CLR 317 Equuscorp Pty Ltd v Haxton [2012] HCA 786 ALJR 296 Falcke v Scottish Imperial Insurance Company (1886) 34 Ch D 234 Grissell v Robinson (1836) 3 Bing NC 10132 ER 312 In re Chetwynd's Estate [1938] Ch 13 In re Cleadon Trust Limited [1939] Ch 286232 CLR 635 McColls Wholesale Pty Ltd v State Bank of New South Wales [1984] 3 NSWLR 365149 ER 626 Rowe v Vale of White Horse District Council [2003] EWHC 388 (Admin)1 Lloyd's Rep 418 Steele v Tardiani [1946] HCA 2172 CLR 386 Sumpter v Hedges [1898] 1 QB 673 Sutton v Tatham (1839) 10 Ad & EI 27113 ER 11 Suttor v Gundowda Pty Ltd [1950] HCA 35

Judgment (15 paragraphs)

[1]

[2]

SUMMARY OF CASE AND CONCLUSIONS 2In late 2006 the appellant ("Progressive") and the respondents (together referred to as "Greens") each owned undeveloped land on opposite sides of Old Sydney Road, Thurgoona in New South Wales. By 23 April 2007 they had obtained consents from the Albury City Council ("the Council") to develop their properties subject, inter alia, to conditions that entry to the properties from Old Sydney Road, being from points opposite to each other, be facilitated by a roundabout to be constructed on Old Sydney Road, with the cost of the roundabout to be shared between them. The parties at first contemplated that the Council would construct the roundabout and charge the cost to them. However when Greens formed the view that the Council would not be likely to do this quickly enough for Greens' purposes, it constructed the roundabout itself and claimed half of the cost from Progressive, which refused to pay. 3Greens' proceedings for recovery of this amount were heard by Windeyer AJ sitting in the Equity Division of the Court. Greens put its claim on a number of bases but succeeded only upon a cause of action pleaded under the heading "Unjust enrichment". His Honour found in favour of Greens on the basis that Progressive had impliedly requested Greens to construct the roundabout for their joint benefit and at their mutual cost. 4On appeal Greens accepted that it had neither pleaded nor argued at first instance, as an element of its "unjust enrichment" claim, that Progressive had requested it to do the work and that Greens had acted on that request. Accordingly, it sought leave to amend its pleading to make those assertions. Progressive opposed the application, contending that it had been prejudiced by the lack of pleading and argument, and that Greens' claim would in any event have failed because Progressive had not requested that the work be done and there was no evidence that Greens had relied upon any request in deciding to construct the roundabout. 5In summary, I consider that the appeal should be allowed and judgment entered for Progressive because: (a) The evidence did not establish that Progressive requested Greens to construct the roundabout or that, if there was a request, Greens relied on it in deciding to proceed; and (b) Greens' application for leave to amend its pleading should be refused as the points it sought to raise were ones that might have been defeated by further evidence being adduced. 6This result is not in my view discordant with the concept of unjust enrichment which underlies both the "long-established and well-recognised category of cases constituted by claims for work and labour done or money paid at the request of another" and other bases for restitutionary relief (see Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; 232 CLR 635 at [79], [85] and [86] and also more generally Equuscorp Pty Ltd v Haxton [2012] HCA 7; 86 ALJR 296 at [26] - [32] and Gummow J, "Moses v Macferlan: 250 years on" (2010) 84 Australian Law Journal 756). 7Greens no doubt assumed that Progressive would pay half of the roundabout costs if Greens proceeded to construct the roundabout to meet its own time constraints without waiting for the Council to do so. However, it did not seek Progressive's agreement to pay half the cost, nor act on any request from Progressive to do the work when it did. 8If Greens had sought confirmation from Progressive that it would pay half of Greens' construction cost, it is quite possible, in light of the evidence at the trial, that Progressive might have responded that it did not want the work done and did not wish to incur the costs at that stage as it had no plans for any immediate development of its land. Indeed, Progressive sold most of its land, in an undeveloped state, soon after. 9Moreover it is unclear what, if any, benefit Progressive derived from Greens' construction of the roundabout. It can be assumed that Progressive's sale price was to some extent enhanced by the existence of the development consent but whether it was enhanced also by the existence of the roundabout in an amount equivalent to half of Greens' construction cost, or some part of it, is a matter of speculation.

[3]

FACTUAL CIRCUMSTANCES 10The Council granted development consent to Progressive on 20 July 2006. In December 2006 the managers of Progressive's intended development, The Urban Partnership ("TUP"), formed the view that Progressive would have to change the proposed entry point to its property from Old Sydney Road and seek a corresponding modification of its development consent. On instructions from TUP, SJE Consulting Pty Ltd ("SJE"), civil and construction engineers engaged by Progressive, approached Greens' engineers, CPG (Australia) Pty Ltd ("CPG") to discuss the possibility of a "joint intersection". Thereafter communications occurred between those contractors concerning the design of the intersection and the costs of alternatives. 11On 22 January 2007 the Albury Local Development Committee, which provided advice to the Council, resolved that it had no objection to a proposed modification to Progressive's development consent, subject to a condition that entry to its property be by way of a roundabout, the cost of which was to be shared equally between Progressive and Greens. On the same day Ms McEntee of TUP wrote to Mr Neave of CPG noting that Mr Christy of the Council had called to inform her of the Committee's resolution and that the Council "would design and construct so that either party [were] not waiting on the other and that the parties would then be required to reimburse Council". 12After speaking to another Council officer, Mr Neave called Ms McEntee and said: "The construction of the roundabout is not in the Council's forward estimate. It is going to take ages before they get around to constructing the roundabout. I think we'll have to do it". To this Ms McEntee replied "You might be right". 13In an email of 22 February 2007, Mr Emptage of SJE said to Mr Neave: "I gave you the wrong info the other day. We reckon a 4-way intersection will probably be about $50,000 more than a roundabout. This means both our clients might be $25,000 better off with a roundabout. Will leave it to you to check further". 14On 8 March 2007 Mr Neave emailed a copy of layout plans for the roundabout to the Council, copying the email to Mr Emptage. Later that day a Council officer indicated to Mr Neave that the preliminary plans had been accepted "in principal" with additional details to be included in the final plans. On the following day the Council approved the modification that Progressive had sought to its development consent. Approval was given subject to the entry to the property from Old Sydney Road being by way of roundabout with the cost of its construction to be shared between Progressive and Greens. On 13 March 2007 Mr Emptage informed Mr Neave by email that "the roundabout looks OK by us". 15In the first half of April 2007 there were communications between SJE and CPG about some aspects of the design of the roundabout and on 23 April 2007 the Council granted development consent to Greens subject to the same condition as was contained in Progressive's modified development consent. 16On 20 June 2007, without any further consultation with Progressive, Greens engaged Excell Gray Bruni Constructions Pty Ltd ("Excell") to construct the roundabout. 17On 20 August 2007 Mr Cummings of TUP attended a meeting with Mr Neave at which he requested a change to one aspect of the roundabout design. Mr Neave replied that Council approval was required for such a change. 18Excell constructed the roundabout in August and September 2007, with some residual work remaining to be completed as at 2 October (Transcript p 59). 19According to unchallenged evidence of Mr Neave, in "late or early September" he had a telephone conversation with Mr Cummings who informed him that Progressive intended to sell its property and that "the half share of the cost of the roundabout will be factored into the sale. We are not going anywhere" (Affidavit of 19 August 2010, [77]). On 21 September 2007 Progressive entered into a contract to sell most of its property to a third party, Glenfield Development Pty Ltd ("Glenfield"), for $4.4 million. 20Thereafter Greens claimed half of the construction cost of the roundabout from Progressive but the latter refused to pay it.

[5]

THE JUDGMENT AT FIRST INSTANCE 23The primary judge rejected the claims based on contract and equitable contribution and noted that the misleading and deceptive conduct and estoppel claims were not pressed. He observed in relation to the latter two that there was "no evidence of reliance". Greens does not rely upon any of these bases of claim to support the judgment in its favour at first instance. 24In relation to the remaining basis of claim pleaded, unjust enrichment, his Honour considered that in light of the High Court's decision in Lumbers v W Cook Builders Pty Ltd it was not open to him to find that acceptance of the benefit of work done and materials provided was sufficient, in the absence of a request by Progressive for the work to be done, to justify a claim for restitution. This conclusion was not challenged on appeal. 25Although a request was not pleaded, the primary judge found that Progressive had impliedly requested Greens to construct the roundabout and that this was sufficient to entitle Greens to judgment. His Honour said the following in relation to his ability to find for Greens on this basis: "I appreciate that the question of consent [apparently intended to be a reference to "request"] was not argued. However as it places a higher hurdle for the plaintiff than does acceptance, it is not unfair to the defendant to consider it as no additional facts are involved" (Judgment [62]). 26His reasons for finding an implied request were as follows: "60 The facts which go to the question of implied request would be the acceptance that the Council was not going to construct the roundabout; that Progressive Pod knew that Greens, through CPG, was going to do the design work for the roundabout and that Progressive Pod was contributing to such work; the fact that Mr Emptage provided TUP and Mr Hunt with details of the projected costs of the roundabout; and the fact that Mr Cummings was present at the meeting on 20 August 2007 where amendments to the roundabout were discussed. These are, I think, sufficient for a request to be implied that the construction work was to be organised and carried out by Greens, but with input from Progressive Pod, for the benefit of both parties. 61 If further evidence of this were necessary, it seems to me that Mr Everard's [sole director of Progressive Pod] concession in cross-examination that the roundabout solution was reasonable and that the applicant should pay half of the construction cost supports the finding of an implied request." 27I now turn to the resolution of the issues on appeal.

[11]

Generally 35As the matters relied upon by the primary judge did not, either individually or taken together, in my view give rise to an implied request, and Greens did not seek by way of a Notice of Contention to assert that the primary judge's finding of an implied request could be otherwise supported, I consider that the finding was erroneous. 36The primary judge indicated that, if he had erred in finding an implied request, his finding in favour of Greens was nevertheless justified by Progressive's "acquiescence in the work and ... acceptance of the benefit of the work" (Judgment [62]). This conclusion appears to have been based upon a proposition quoted by his Honour from E Bullen & S Leake, Precedents of Pleadings, 3rd ed (1868) Stevens and Sons, London, at 42 (said by his Honour to have been repeated in subsequent editions) that "a request will be generally implied where the defendant has notice of the payment being made for him, and does not dissent" (Judgment [59]). It is unnecessary to express a view as to the correctness of this proposition because Greens did not seek to uphold his Honour's decision on this alternative basis but I note that, on my view of the facts in the present case, this proposition was not in any event applicable as Progressive did not have "notice of the payment being made for [it]" (emphasis added). Rather, Greens indicated that it had its own reasons for proceeding to construct the roundabout when it did. 37The same point can be made about the following similar proposition adopted by Greene MR in In re Cleadon Trust Limited [1939] Ch 286 at 299: "if a person knows that the consideration is being rendered for his benefit with an expectation that he will pay for it, then if he acquiesces in its being done, taking the benefit of it when done, he will be taken impliedly to have requested its being done; and that will import a promise to pay for it" (emphasis added). See also J Chitty & H Beale, Chitty on Contracts, 30th ed (2008) Thomson Reuters at [29 - 116].

[13]

THE PLEADING ISSUE 40Greens neither pleaded nor argued at first instance a restitutionary claim based upon an implied request by Progressive. To overcome this difficulty Greens sought leave to amend its FASC to allege an implied request and reliance by Greens upon it. The application to amend was opposed by Progressive and in my view should be refused. 41The relevant principle was stated in the oft-cited decision in Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438 as follows: "Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards". 42Here, the principal new point sought to be raised on appeal is the question of fact of whether Progressive impliedly requested Greens to construct the roundabout. As Progressive rightly contends, it cannot be said that this is a point about which no further evidence could have been given beyond that which was before the primary judge. The principle stated in Suttor v Gundowda accordingly precludes the allegation of an implied request being made for the first time on appeal. Contrary to Greens' submission, it is not appropriate in such circumstances to remit the proceedings for a new trial. In the absence, as here, of special circumstances, the fundamental principle of finality of litigation confines parties to the cases they advance at a once-only trial of the proceedings (see generally D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34] - [36]). 43The primary judge considered that it was permissible for him to decide the case upon the basis of an implied request, even though that point had not been pleaded or argued, because "as it places a higher hurdle for the plaintiff than does acceptance, it is not unfair to the defendant to consider it as no additional facts are involved" (Judgment [62]). I respectfully disagree with this view. Although proof of a request may represent a higher hurdle for the plaintiff to surmount than proof of acceptance of a benefit, more importantly, it is a different hurdle and one in relation to which Progressive may have sought to adduce or elicit different evidence, whether by way of cross-examination or otherwise, if it had been apprised of the allegation earlier. Moreover, as I pointed out in [38] - [39] above, the establishment of a claim based on a request to do work requires proof that the request was acted upon. This is also an issue about which further evidence might have been given if it had been raised at first instance. 44Accordingly, the lack of pleading of, and argument concerning, an implied request, and reliance on it, provides a further ground for allowing Progressive's appeal.

[14]

ORDERS 45For these reasons I propose the following orders: (1) Grant Greens leave to file within 7 days of this judgment a Notice of Contention in the form of the draft supplied to the Court. (2) Dismiss Greens' application to amend its Further Amended Statement of Claim. (3) Appeal allowed. (4) Set aside the judgment and order for costs entered and made in favour of Greens at first instance. (5) Judgment for Progressive in the proceedings. (6) Order Greens to pay Progressive's costs of the proceedings at first instance and on appeal. (7) Greens to have a certificate under the Suitors' Fund Act 1951, if qualified. 46BARRETT JA: I agree with Macfarlan JA. 47In relation to the passage at page 42 of the third edition (1868) of Bullen and Leake's Precedents of Pleadings quoted by Macfarlan JA at [36], by Young AJA at [59] and by the primary judge at [59], it should be noted that the learned editors later became more circumspect. At page 290 of the fifth edition (1897), "will generally" was replaced by "may sometimes". The change was carried into the sixth edition (1905) and noticed in Narayanaswami Naidu Garu v Sree Rajah Vellanki Sreenivasa Jagannadha Rao Bhadur (1909) ILR 33 Mad 189. 48YOUNG AJA: I agree with Macfarlan JA, but wish to add some additional observations. 49It is clear that the only cause of action on which the respondent can succeed is the common money count for money paid by the plaintiff for the defendant at its request. Unfortunately, assuming this count was pleaded, it was not elegantly pleaded and a consequence was that little attention was given to what was required to be established to make the count good. 50Macfarlan JA has sufficiently outlined the basal facts and there is no need for me to repeat them. 51Ultimately, the key questions for this court are whether there was any implied request by the appellant to the respondent to make the relevant payment and, if so, whether the payment was made in reliance on that request. 52The legal historians seem somewhat divided as to the origin of this count. Professor Stoljar says at p 150 of his The Law of Quasi-Contract, 2nd ed (1989) Law Book Company, that it did not emerge until the middle of the 18th Century. However, Professor JH Baker in his essay in W Cornish & G Jones, Restitution: Past, Present and Future (1998) Hart Publishing, opines at p 44 that the count was in regular use from at least 1610. It may be that the count existed from 1610, but its extended commercial use occurred much later. 53As is the case with quantum meruit, the common count for money paid lies both for situations of contract and where there is no contract, but the court can see that the circumstances are such that the defendant should reimburse the plaintiff for what the plaintiff has paid for the benefit of the defendant. The usual circumstance is where the plaintiff has been requested either expressly or impliedly by the defendant to make the payment. 54In common with other indebitatus counts, promises to pay and requests could be inferred from all the circumstances even if it were clear that there was no express request. However, in the case of money paid, the courts were less inclined to infer a request than in other cases. One reason for this may be that if the money were paid without a prior request, there was a problem with the payment being past consideration for a later promise. 55The earliest type of case in which the law inferred a request was where the defendant's close relative died whilst either the relative or the defendant was overseas and the plaintiff paid for the burial, see eg Jenkins v Tucker (1788) 1 H Bl 90: 126 ER 55. 56There were four other classic situations where a request would usually be inferred, (1) where a surety paid the defendant's debt (eg Alexander v Vane (1836) 1 M & W 51; 150 ER 537: In re Chetwynd's Estate [1938] Ch 13 and in this Court McColls Wholesale Pty Ltd v State Bank of NSW [1984] 3 NSWLR 365, 376; 80 FLR 302, 312 [Powell J]); (2) where the payment has been made under compulsion or virtual compulsion in respect of a payment which the defendant was legally obliged to pay, eg Grissell v Robinson (1836) 3 Bing NC 10; 132 ER 312; (3) where in accordance with the rules of an enterprise of which both parties are aware, the plaintiff makes a payment on behalf of the defendant, such as a sharebroker making a payment in accordance with the stock exchange rules in the defendant's transaction, eg Sutton v Tatham (1839) 10 Ad & EI 27; 113 ER 11 (this is probably an instance of a contractual count); and (4) where the defendant is benefited by the plaintiff's payment and a reasonable person in the defendant's position would have expected that reimbursement was required unless he or she rejected the benefit within a reasonable time, see eg Falcke v Scottish Imperial Insurance Company (1886) 34 Ch D 234, 248; Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221. 57I need to make two comments about that list. First, it is not exhaustive. For instance, in one of the cases cited to us, Paynter v Williams (1833) 1 Cr & M 810; 149 ER 626, a local authority was liable to a doctor who was attending one of its pensioners, because the court found that the authority knew of what the doctor was doing, knew he was not acting for free and never protested. 58Secondly, the fourth example must be distinguished from the suggested case of unjust enrichment that probably developed from it where there is acceptance of an incontrovertible benefit without any request, see eg L Goff & G Jones, The Law of Restitution, 7th ed (2007) Sweet & Maxwell at 1-019 (omitted from the 8th edition) and Rowe v Vale of White Horse District Council [2003] EWHC 388 (Admin); 1 Lloyd's Rep 418, but see Lumbers v W Cook Builders Pty Ltd [2008] HCA 27; 232 CLR 635. 59The hallowed 3rd edition of E Bullen & S Leake, Precedents of Pleadings (1868) Stevens & Sons, says at p 42, "A request will generally be implied where the defendant has notice of the payment being made for him and does not dissent." 60I find it difficult to accept that such a wide statement follows from the authorities the authors cite. The proposition can be made out in some situations, vide Paynter v Williams, and it is probably true in situations where a reasonable person would have been expected to register dissent, but, outside those cases, it is questionable. 61It is appropriate to record the aphorism of Pollock CB in Taylor v Laird (1856) 25 LJ Ex 329, 332, "One cleans another's shoes. What can the other do but put them on." 62The law does not generally compel a person to pay for a benefit another has provided merely because that other has taken it into his or her mind to provide the benefit: Sumpter v Hedges [1898] 1 QB 673, 676, a passage approved by Dixon J in Steele v Tardiani [1946] HCA 21; 72 CLR 386, 403. It is an a fortiori case where the action also benefits, even primarily benefits, the person who provided the benefit. 63This is where the matter of reliance comes in to the picture. A person who provides a benefit both to himself and the defendant must show that it was not just a case of the defendant gaining a side benefit from an act done in the actor's own interest, but the act was one done at the request of the defendant. 64All that the facts in evidence in the present case amount to is that the respondent's actions provided some benefit to itself and may have provided some benefit to the appellant. The appellant wished to on sell its property. It may be that the roundabout increased the value of that property, the evidentiary material is insufficient to determine this; but, in any event, the appellant may well not have wanted the expense of construction of the roundabout to be incurred at an early stage of its development. 65The facts do not enable a court to infer a request or a reliance. Thus I agree with the orders proposed by Macfarlan JA.

Progressive Pod Properties Pty Ltd v A & M Green Investments Pty Ltd

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