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[2012] NSWCA 225
appellant. Greens was granted leave to file the specified Notice of Contention within seven days, but its application to amend the Further Amended Statement of Claim was dismissed. The appeal was allowed, the...
Greens built a roundabout because it considered that waiting for Council would delay its own development. Although Progressive knew about the proposed roundabout and had some input into its design, that did not establish that it had asked Greens to build it or that Greens built it because of any such request. The Court also said that Greens could not add this new factual case on appeal when Progressive might have answered it with further evidence at trial. The appeal succeeded and judgment was entered for Progressive.
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Progressive and the Greens companies owned undeveloped land on opposite sides of Old Sydney Road at Thurgoona. Each obtained development consent from Albury City Council. The relevant conditions required access to be facilitated by a roundabout and provided that the parties would share its cost. The parties initially expected Council to construct the roundabout and charge them for it [2], [10]-[15].
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The dispute arose because Greens concluded that Council would not build the roundabout quickly enough for its development plans. In January 2007, after being told that Council construction might take a long time, a representative of Progressive replied, “You might be right” when a Greens engineer said, “I think we’ll have to do it” [12]. Greens later engaged a contractor without further consultation with Progressive [16]. The roundabout was built in August and September 2007 [18].
Greens claimed half the construction cost from Progressive. Progressive refused to pay [20]. Greens pleaded several possible bases for recovery, including contract, unjust enrichment, misleading or deceptive conduct, estoppel and equitable contribution. At trial, the judge rejected the contract and equitable contribution claims, and the misleading conduct and estoppel claims were not pressed. The judge nevertheless found for Greens on unjust enrichment, reasoning that Progressive had impliedly requested Greens to construct the roundabout [21]-[26].
On appeal, Greens accepted that it had not pleaded or argued that its restitutionary claim depended on a request by Progressive and reliance on that request. It sought to amend its pleading to add those matters. Progressive argued that the evidence did not prove either proposition and that it had been prejudiced because it had not faced that case at trial [4], [40].
The Court of Appeal allowed Progressive’s appeal. It held that the evidence did not establish an implied request or Greens’ reliance on one. It also refused the proposed amendment because the new factual allegations might have been met with further evidence at trial [5], [39]-[44]. The first-instance judgment was set aside and judgment entered for Progressive [45].
The appeal turned on the character of Progressive’s conduct and the reason Greens proceeded when it did. The Court considered the circumstances relied upon by the primary judge, including Progressive’s knowledge that Greens might build the roundabout, Progressive’s participation in design discussions, the provision of projected costs within Progressive’s own project team, and a later meeting at which Progressive’s representative sought a design change [28]-[34].
Macfarlan JA treated the January exchange as non-committal, not as a request. Progressive’s response showed awareness of what Greens might do, but did not ask Greens to proceed [28]. Likewise, the parties’ design discussions were consistent with Progressive wanting to protect access to its property and secure the relevant development consent. They did not demonstrate that it wanted the construction to occur at that time at its own expense [29]-[30].
The commercial context mattered. Greens needed the roundabout to advance its development and chose to proceed rather than wait for Council. The evidence did not show that Progressive was in a hurry to develop its own property. It sold most of its land in an undeveloped state around the time construction was completed [30]. The Court therefore considered that Greens’ decision was explicable by its own development needs, rather than by a request from Progressive.
The Court also rejected reliance on statements by Progressive personnel that the cost should be shared. Macfarlan JA read those statements as reflecting their view of the development consent conditions and who was responsible under them. They did not answer the different factual question of whether Progressive had requested Greens to build the roundabout when it did [33]-[34].
Even an implied request would not have been enough without proof that Greens acted on it. Greens’ counsel conceded that recovery could not follow if Greens had built for its own purposes and not in response to Progressive’s request [38]. The record did not show that a request influenced the timing or decision to build. The primary judge had also observed that there was no evidence of reliance in relation to the misleading conduct and estoppel claims [23], [39].
A further issue was procedural. The trial judge had treated the unpleaded request as a higher hurdle for Greens and therefore not unfair to Progressive [25]. Macfarlan JA disagreed. A request was not merely a more demanding version of the benefit-acceptance case. It was a different factual case, one that could have led Progressive to adduce evidence or conduct cross-examination differently. Reliance also raised a factual question on which further evidence might have been led [43].
The Court applied the principle in Suttor v Gundowda Pty Ltd, quoted at [41]: a point not taken below cannot generally be taken later if evidence could possibly have been given at trial to defeat it. Because the proposed allegations were fact-sensitive, the Court refused the amendment and rejected a retrial in the absence of special circumstances. The judgment linked that approach to the finality of litigation [42]-[44].
The judgment did not purport to create a new general test for unjust enrichment. Macfarlan JA expressly located claims for work or money supplied at another’s request within a “long-established and well-recognised category” of restitutionary cases, referring to Lumbers v W Cook Builders Pty Ltd and Equuscorp Pty Ltd v Haxton [6]. The decision applied that framework to the evidence and pleading in this dispute.
The practical point made clear by the appeal is that a party relying on a request-based restitutionary claim must establish both a request and a response to it. The request may be inferred from conduct, but the conduct must support that inference. Here, knowledge of the project, involvement in design, and possible receipt of a benefit did not establish the required request [28]-[39].
Young AJA’s reasons set out examples in which courts had inferred a request, including payment by a surety, payments made under compulsion in respect of another’s legal obligation, payments under the rules of a shared enterprise, and situations in which a reasonable person would expect reimbursement unless the benefit were rejected [55]-[57]. Young AJA emphasised that these examples were not exhaustive [57].
The judgment also cautioned against treating receipt of a benefit as automatically creating a duty to reimburse. Young AJA stated that the law does not generally require payment merely because someone else chose to provide a benefit [62]. Where the claimant’s act also advances its own interests, the evidence must distinguish a side benefit to the defendant from action taken at the defendant’s request [63]-[65].
The judgment did not finally resolve the broader boundary between request-based claims and claims based solely on acceptance of an incontrovertible benefit. Macfarlan JA said that it was unnecessary to decide whether the Bullen and Leake proposition about notice and non-dissent was correct [36]. Young AJA questioned its breadth and discussed the distinction between an implied request and a possible separate category involving acceptance without request [58]-[60]. The result is therefore strongest as an application of request and reliance requirements to the facts, rather than as a comprehensive statement of all restitutionary liability.
At [28], Macfarlan JA said Progressive’s response to the suggestion that Greens might build the roundabout “did not constitute a request”. In ordinary terms, knowing that another party may do something, or offering a non-committal response, is not necessarily asking that party to do it.
At [30], the Court concluded that the evidence did not justify finding that Greens built the roundabout at Progressive’s request. The surrounding circumstances suggested Greens was motivated by its own development timetable. The passage shows why commercial context and each party’s purpose mattered to the inference.
At [32], the Court said Progressive’s conduct would have had to be explicable only on the basis that it was requesting Greens to build the roundabout with Progressive contributing half. The Court drew an analogy with the conduct needed to establish a contract. The point is not that every implied request must meet a separate contractual test, but that equivocal conduct which is consistent with protecting one’s own interests may not establish the alleged request.
At [39], Macfarlan JA stated that there was no evidence the supposed request affected Greens’ decision to build when it did. This identifies reliance as a separate question. The existence of a request, even if inferred, does not by itself show that the claimant acted because of it.
At [43], the Court explained why it mattered that the request had not been pleaded: Progressive might have adduced or elicited different evidence if it had known that this was the case it had to meet. In plain terms, a new factual theory on appeal can be unfair even if it seems to impose a higher burden on the party advancing it.
At [62], Young AJA observed that a person is not generally compelled to pay for a benefit simply because another person decided to provide it. The accompanying reasoning at [63]-[65] stresses the distinction between an act done at the defendant’s request and an act primarily done in the claimant’s own interest.
The decision is particularly relevant where a claimant seeks reimbursement for work or a payment made for another person, and relies on an alleged express or implied request. It highlights the need to identify evidence of the request itself, rather than relying only on the defendant’s knowledge of the work or later receipt of some benefit [28]-[39].
It is also relevant where the claimant’s work served its own commercial objectives as well as possibly benefiting the defendant. The court will need to assess whether the evidence supports an inference that the defendant requested the work, or whether the claimant proceeded for its own purposes and the defendant received only an incidental benefit [30], [62]-[65].
The decision may matter where a party has participated in planning, given technical input, or sought changes to work undertaken by another. Such conduct may be consistent with protecting the party’s own interests, without amounting to a request that the work be undertaken or that costs be incurred at that time [29]-[32].
Procedurally, the case is relevant where a party seeks on appeal to add a factual allegation that was not pleaded or argued at trial. If the opposing party might have led evidence or conducted cross-examination differently, Suttor v Gundowda may prevent the new point being raised for the first time on appeal [40]-[44].
The judgment supplied here is the 2012 decision itself. It contains no account of later judicial treatment, and no later cases or sources have been provided. It is therefore not possible, on this material, to state whether subsequent courts have followed, distinguished, applied or limited the decision.
Within this judgment, the Court referred to Lumbers as relevant to the restitutionary setting and cited Suttor for the restriction on new points at appeal [6], [41]-[42]. It also used Laidlaw by analogy when discussing the evidential character of conduct said to imply a request [32]. These are the relationships identified in the judgment, not a survey of later treatment.
The Court did not decide whether the broad statement in the third edition of Bullen and Leake, that a request will generally be implied where a defendant knows of a payment being made for it and does not dissent, is correct. Macfarlan JA said it was unnecessary to express a view and observed that the factual precondition of notice of payment for Progressive was absent [36]. Young AJA considered the statement too broad to accept outside situations where a reasonable person would be expected to dissent, but framed that as an observation about the proposition and authorities [59]-[60].
The judgment also did not determine the reach of restitution for acceptance of an incontrovertible benefit without a request. Young AJA distinguished that possible category from request-based recovery and referred to Lumbers in that discussion [58]. Macfarlan JA noted that the primary judge’s conclusion based on acquiescence and acceptance was not a basis Greens sought to use to uphold the result on appeal, and did not decide the general correctness of the proposition [36]-[37].
The evidence did not establish whether the roundabout enhanced the sale price of Progressive’s land, or, if it did, by what amount. Macfarlan JA described the matter as speculative [9], and Young AJA likewise noted the insufficiency of the evidence on value [64]. The judgment consequently did not determine how such a quantified benefit might affect a different restitutionary claim.
Finally, the decision does not set out a comprehensive test for every implied request. It holds that the facts in this case did not permit the inference and emphasises reliance, but leaves open how other factual contexts may satisfy those requirements. The examples discussed by Young AJA are expressly non-exhaustive [55]-[58].
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0th ed (2008) Thomson Reuters W Cornish & G Jones, Restitution: Past Present and Future (1998) Hart Publishing L Goff & G Jones, The Law of Restitution, 7th ed (2007) Sweet & Maxwell Gummow J, "Moses v Macferlan: 250 years on" (2010) 84 Australian Law Journal 756 S Stoljar, The law of quasi-contract, 2nd ed (1989) Law Book Company Category: Principal judgment Parties: Progressive Pod Properties Pty Ltd (Appellant) A & M Green Investments Pty Ltd (First Respondent) S & K Green Investments Pty Ltd (Second Respondent) Representation: Counsel: B DeBuse (Appellant) G A Laughton SC (Respondents) Solicitors: Marsdens Law Group (Appellant) Pogson Cronin Solicitors & Notary (Respondents) File Number(s): CA 2010/7693 Decision under appeal Citation: A & M Green Investments Pty Ltd v Progressive Pod Properties Pty Ltd [2011] NSWSC 502 Date of Decision: 2011-06-01 00:00:00 Before: Windeyer AJ File Number(s): SC 2010/2693
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.
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.
THE FURTHER AMENDED STATEMENT OF CLAIM 21By its Further Amended Statement of Claim ("FASC"), Greens based its claim for recovery of half of the cost of construction of the roundabout on, alternatively, contract, unjust enrichment, misleading and deceptive conduct, estoppel and equitable contribution. 22The unjust enrichment claim, which is the only basis of claim relevant to the appeal, was framed as follows: "Unjust enrichment claim 14 [The Progressive and Greens development consents were conditioned on construction of a roundabout for which each of the parties was to contribute 50 per cent of the cost]. 15 In the premises Procorp [a reference to Progressive] had a legal obligation to construct the roundabout and to pay the cost of construction. 16 [Greens constructed the roundabout at a cost to it of $364,943]. 17 By reason of the construction of the roundabout by Greens, Procorp has been incontrovertibly benefited, in: 17.1 Green discharged on behalf of Procorp the condition of the Procorp consent which required it to construct a roundabout to facilitate access to the Procorp land; 17.2 Green paid on behalf of Procorp the cost of construction of the roundabout; 17.3 Procorp acquiesced in, and actively participated in the planning for the construction of the roundabout. 18 In the premises, Procorp has been unjustly enriched to the detriment of Greens and Greens is entitled to recoup from Procorp 50% of the cost of construction of the roundabout".
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.
The Council's intentions 28The first matter that the primary judge relied upon in finding that there had been an implied request by Progressive was its "acceptance that the Council was not going to construct the roundabout" (Judgment [60] quoted in [26] above). This was a reference to the conversation between Mr Neave and Ms McEntee referred to in [12] above. By this conversation, Progressive acquired knowledge that Greens, rather than the Council, may, and probably would, construct the roundabout. However, what Ms McEntee said was non-committal and did not constitute a request to Greens to take that course.
Progressive's contribution to Greens' design work 29The following facts relevant to this factor relied upon by the primary judge were clearly established:
SJE's provision of projected costs to TUP and Progressive 31The communications to which the primary judge was referring in relation to this factor were internal ones within the Progressive "camp". They did not constitute communications between Progressive and Greens whereby Progressive requested Greens to construct the roundabout.
The meeting of 20 August 2007 32The fourth factor to which the primary judge referred was the presence of Mr Cummings of TUP at a meeting of 20 August 2007 (see [17] above). Mr Cummings' (unsuccessful) request to Mr Neave at that meeting for a limited change in the roundabout's design could not in my view be regarded as a request by Progressive for Greens to construct the roundabout. This, as with other material relied upon by Greens, was equivocal. It was consistent with Progressive attempting to protect its own interests so far as the impact of the roundabout on its property was concerned. To constitute an implied request, Progressive's conduct would in my view have had to be explicable only upon the basis that it was requesting Greens to construct the roundabout, with Progressive contributing half the cost. In my view an analogy may aptly be drawn with the character of the conduct required to establish the conclusion of a contract by conduct. I referred to the principal authorities in this respect in Laidlaw v Hillier Hewitt Elsley Pty Ltd [2009] NSWCA 44 at [5] - [9].
Mr Everhard's concession in cross-examination 33Finally the primary judge referred to concessions made in cross-examination by Mr Everard of Progressive "that the roundabout solution was reasonable and that the applicant should pay half of the construction cost" (Judgment [61]). His Honour was referring to evidence given by Mr Everard that he believed that the costs of the roundabout should be shared between "the applicants" (Transcript pp 107 - 8; 112 - 113). 34Mr Everard however emphasised repeatedly that it was "whoever holds the DA" who was obliged to share the cost. This view appeared to be based upon the conditions of the development consents concerning payment of the roundabout cost. His evidence thus reflected his views on the legal effect of the development consents, rather than the issue of fact in the proceedings as to whether Progressive had impliedly requested Greens to construct the roundabout. The alleged concessions did not therefore shed light on the factual issue at hand. Insofar as they concerned an issue of law they were valueless not only due to Mr Everard's lack of expertise concerning legal standards (see Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [66] - [71]) but because the legal effect of the development consents was not in issue in the proceedings. Alleged admissions by Mr Hunt and Mr Cummings on behalf of Progressive are similarly unhelpful to Greens because, at their highest, they concerned Progressive's ultimate responsibility, not facts which formed elements of Greens' claim. They were consistent with Mr Hunt and Mr Cummings having a view, like that of Mr Everard, about the effect of the development consents. Their statements revealed nothing about whether Progressive had requested Greens to do the work when it did.
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].
WHETHER RELIANCE ON IMPLIED REQUEST 38At the hearing of the appeal, senior counsel for Greens properly conceded that it would not be sufficient for him to demonstrate that Progressive impliedly requested Greens to construct the roundabout if Greens' work had not been a response to that request. In other words, he accepted that there would be no injustice in denying Greens a right of recovery if Greens had constructed the roundabout for its own purposes, and not in reliance upon a request by Progressive to do the work. 39Greens faced the difficulty in this context that the primary judge observed when referring to the misleading and deceptive conduct and estoppel bases of claim that there was no evidence of reliance by Greens (see [23] above). To overcome this difficulty, Greens applied for leave to file a Notice of Contention seeking to challenge these findings. I would grant such leave as reliance was in issue at first instance, albeit on other causes of action. However, examination of the evidence necessitates the conclusion that the primary judge was correct in observing that there was no evidence of reliance. Accordingly, even if (contrary to my view) Progressive impliedly requested Greens to construct the roundabout, there was no evidence that this request had any impact on Greens' decision to construct the roundabout when it did. Greens' restitutionary claim must therefore fail for this reason also.
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.
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.
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Progressive Pod Properties Pty Ltd
A & M Green Investments Pty Ltd
Greens was granted leave to file the specified Notice of Contention within seven days, but its application to amend the Further Amended Statement of Claim was dismissed. The appeal was allowed, the first-instance judgment and costs order were set aside, judgment was entered for Progressive, and Greens was ordered to pay Progressive's costs at first instance and on appeal. Greens was to have a certificate under the Suitors' Fund Act 1951 if qualified: [45].