Thurston v Goway Travel Pty Limited

Notice of Appeal and history of appeal proceedings

1. Mr Thurston filed a Notice of Appeal which was dated 12 November 2019. This date would appear to be in error as it predates the decision by one day. In addition the Notice of Appeal was received by the Tribunal on 11 December 2019. There is no dispute that the appeal had been commenced in time, namely 28 days after notice of the reasons for decision were received.
2. Mr Thurston appeared in person and, with leave granted pursuant to s 45 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), was represented by his son Mr Glen Thurston as agent at the hearing of the appeal,. Mr Thurston made oral submissions at the hearing of the appeal. Ms Scott of Counsel appeared for Goway and also made oral submissions at hearing. Both parties had filed written submissions in the appeal proceedings.
3. Mr Thurston sought leave to rely on new evidence. By reference to his bundle of documents (AB) filed in these proceedings, the documents identified as new evidence were: 1. Tab 7 - Statement of Mr Ide 2. Tab 10 - Email from Mr Ide re Travel 3. Tab 14 - Email chain Mr Ide to Goway 4. Tab 16 - Ms Comito email re use of Goway email address 5. Tab 17 - Email chain re email contact details 6. Tab 18 - Email chain re travel passes and refunds 7. Tab 19 - Tickets and passes from Goway taken up by Mr ides and his associates
4. Goway also filed a bundle entitled "Respondent's Bundle of Documents" (RB).
5. In his Notice of Appeal, under the heading "Application for Leave to Appeal" Mr Thurston identified eight grounds. Essentially, these grounds are: 1. The Tribunal failed to find Mr Ide was acting as the agent for Mr Thurston in forming a contract with Ms Camino (otherwise known as Ms Waite). 2. The Tribunal erred in finding there was no evidence that the monies being received by Goway were paid to Goway by Mr Ides on behalf of Mr Thurston. 3. The Tribunal erred in finding that dealings with other members of Mr Thurston's family were different to the present circumstances such that Goway was not liable to Mr Thurston in respect of the payments made including the difference arising from the use by Ms Comino of a personal "hotmail account" rather than through a Goway. 4. The Tribunal erred in finding there was no reference in Goway's records of receiving $27,000 from Mr Thurston. 5. The Tribunal erred in finding "that there was no evidence that Mr Ide told Ms Comino upon making payment from his credit card to [Goway]"; 6. The Tribunal erred in finding no offer was made by Ms Comino to Mr Thurston, through Mr Thurston's agent Mr Ide. 7. The Tribunal erred in finding that [Goway] was not liable to refund $27,000 to Mr Thurston. 8. The Tribunal erred in drawing Jones v Dunkel inferences because of the failure to call Mr Ide, in circumstances where the applicant was self represented at the hearing and was not adequately warned of the risk of failing to call Mr Ide or given a sufficient opportunity to in fact call Mr Ide as a witness.
6. In identifying why the decision was against the weight of evidence, at section 6Bii of the Notice of Appeal, Mr Thurston said he had provided material including an email from Mr Ide to Lisa Waite (Comino) dated 27 October 2016 expressly noting that they were to process card payments for three passes for Mr Thurston. The Tribunal ought to have identified the 27 October 2016 email as a direction from Mr Ide as agent for the applicant for payment of the passes to be made out in the applicant's name.
7. In connection with the application to adduce new evidence Mr Thurston notes that at [26] of the Reasons reference is made to Ms Comino's email account not being a company email. He says that this implies that weight was given to the fact that communications with Ms Comino were via a private email account. Mr Thurston has obtained an email from Ms Comino to his parents dated 11 July 2014 expressly directing the appellant's parents to communicate with her at the Hotmail account and not a Goway company account. This matter was not apparent to the appellant of being of any significance at the time of the hearing.

Appellant's submissions on the appeal

1. In relation to the new evidence being the statement from Mr Ide, Mr Thurston submitted that the basis that he did not call Mr Ide was because Mr Ide had previously applied to NCAT for refunds for five other clients where the Tribunal ruled that he was unable to make the applications (apparently due to a lack of standing). The ruling being that the affected individuals should make those applications themselves.
2. Mr Thurston noted that the respondent had sought evidence from Mr Ide which it obtained through their forensic accountant Mr Forno whose evidence was before the Tribunal. Mr Thurston submitted that a lot of Mr Ide's evidence was already before the Tribunal in the form of emails about the transactions which are central to the proceedings.
3. Otherwise, the effect of the submission was that new evidence should be permitted because it was not apparent to Mr Thurston the evidence might be relevant until he received the Tribunal's decision
4. As to the receipt of $27,000, Mr Thurston submitted that the evidence from Mr Forno's statement filed 6 September 2019 showed that whilst Goway did not receive the payment directly from Mr Thurston they did receive a discrete payment of $27,000 and it was not for Mr Thurston to know how Goway receipted such payment and against which Account / File. Goway's records show that the payment of $27,000 was credited to Ms Comito's Family and Friends File. As Goway knew or ought to have known that an Account / File in the name of Ms Comito's Family and Friends was being maintained and that Travel passes were being offered and sold by the respondent to Ms Comito's family and friends. Mr Thurston also submitted that the email from Mr Ide to Ms Comito dated 27 October 2016 showed that Goway was advised Mr Thurston was the source of that payment.
5. Mr Thurston submitted that at all times Mr Ide was continuing to sell the travel passes. Ms Comito acknowledged the receipt of funds and after Mr Thurston requested a refund she was looking into arranging the refund as she confirmed that no services were provided.
6. Consequently, Mr Thurston submitted that Goway had been unjustly enriched and he was entitled to a refund of the money paid.

Respondent's submissions on the appeal

1. The respondent filed written submissions, including submissions from the proceedings at first instance and made oral submissions at the hearing of the appeal. Amongst other things, these submissions dealt with the application for leave to rely on new evidence, the findings concerning the receipt by Goway of $27,000 and the entitlement of Mr Thurston to recover this money because Goway had been unjustly enriched.
2. The respondent opposed the appellant's request to file fresh evidence (AB Tabs 7 - 19). The respondent relied upon the matters outlined at [19]-[28 ] of Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 (Al-Daouk v Mr Pine). 19. There is little judicial guidance available on what the phrase "not reasonably available" means, and how it should be interpreted. We have found two authorities. In James Burke v ABL Group Pty Limited t/as Authentic Bricklaying (NSW) (under external administration) [2013] NSWDC 212 Judge Letherbarrow SC of the District Court of New South Wales noted at [25] that neither party could refer him to any authorities and stated at [26]: It is clear that the phrase in the context of the legislation that it is used poses a question of fact and degree for the Court to determine, in my view, upon a consideration of all the circumstances. Pursuant to s33 of the Interpretation Act, 1987, I am also required to take a purposive approach when interpreting this phrase. I have already referred to the objects of the legislation. 20. In Ortlipp v Employers Mutual NSW Limited as agent for the Workers Compensation Nominal Insurer [2014] NSWDC 157 Judge Taylor SC, also of the District Court of NSW, stated at [47]: Further, in deciding what is "reasonably available" the legislation should be construed in a way that is fair and just if that construction is available (see Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [24], referred to in Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]). 21. The expression being considered by the District Court in each of the cases of James Burke and Ortlipp referred to the expression "not reasonably available to the party" as that expression is used in s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act)". 22. In the present case cl 12(1)(c) of Sch 4 of the NCAT Act requires the Tribunal to consider if "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were dealt with)." … 26. In our opinion the intent of cl 12 of Sch 4 of the NCAT Act is to impose additional limitations on a party's entitlement to seek leave to appeal under s 80(2) of the NCAT Act from a decision of the Consumer and Commercial Division. .. 28. There is no feature of the evidence or the witness who provided the evidence to suggest it could not have been obtained at an earlier time and was not, in that sense, reasonably available. There is no evidence to suggest Mr Mack could not have provided the evidence if approached at an earlier time, at or before the hearing. Perhaps Mrs Al-Daouk's husband could have made enquiries of his patients earlier; perhaps Mrs Al-Daouk could have sought an adjournment of the hearing date so as to allow her more time to seek the report. These are rhetorical considerations, but having considered the evidence sought to be adduced, the only circumstances relied upon by the appellant to show such evidence was not reasonably available is that: (a) Mrs Al-Daouk did not know of and did not find Mr Mack until after the hearing; and (b) other prospective witnesses were approached but declined to help.
3. The respondent submitted that the matters at [28] of Al-Daouk v Mr Pine are applicable to the current circumstances. All of the new evidence in the appellant's bundle was available at the time of the first hearing and has not arisen since.
4. As to the substantive challenge, Goway referred to submissions it made in the proceedings at first instance, namely: 1. Mr Ide was never a contractor, employee or agent of Goway. 2. Neither Mr Ide or Ms Comito had authority to bind Goway for the purpose of selling travel passes; 3. There was no evidence that Ms Comito played any role in the applicant's alleged purchase of the travel passes; 4. There was no evidence as to the purpose for which Mr Ide paid Goway $27,000 and no reason to suspect that the payment from Mr ide was in fact intended to be a payment for Mr Thurston; 5. Goway was not unjustly enriched, having provided to Mr Ide travel services well in excess of the amounts he paid and that it "changed its position" such that it would suffer a detriment if it was required to pay Mr Thurston.
5. Goway submitted that neither Mr Ide or Ms Comoito had ostensible authority and, in so far as Ms Comito was concerned "there is no evidence that the actions of Ms Comito played any role in [Mr Thurston's] purchase of the Travel Passes" nor is there any information that he relied on any representations from Ms Comito.
6. As to the identity of Mr Thurston being the person from whom $27,000 was paid by Mr Ide to Goway, the company submitted the Tribunal's conclusions in the decision at [70] was correct, that there was no evidence before the Tribunal of any conversations between Mr Ide and representatives of Goway and that, "[i]n the absence of evidence from Mr Ide, the Tribunal could only seek to draw an inference from Mr Ide's email as to what he intended to convey to Ms … Comito".
7. Otherwise, Goway submitted that Mr Thurston failed to discharge his onus to prove Mr Ide and/or Ms Comito had authority to contract with Mr Thurston to provide travel passes, that Mr Thurston relied on a holding out by Goway, that such reliance was reasonable and/or that Goway was unjustly enriched in circumstances where Mr Ide receive more than $100,000 with the travel services.
8. On the question of unjust enrichment, in its submissions at first instance, Goway referred to the decision of the High Court in Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7; 246 CLR 498 (Equus). Goway said any mistaken belief which Mr Thurston had when making a payment to Goway was only actionable if the mistake was causative of the payment or conferral of the benefit. Reference was made to the decision of the Supreme Court in Salib v Gakas; Newport Pacific Pty Ltd v Salib [2010] NSWSC 505 (Salib), particularly at [333]. Here, in circumstances where Mr Thurston had no contact with Goway, the company says that it was open to the Tribunal to find there was no relevant mistaken belief but rather that Mr Thurston trusted representations made by his cousin (Mr Ide) and was prepared to proceed with the transaction in the knowledge that there was some risk.

Consideration

1. There is a right of appeal on a question of law. Otherwise leave to appeal is required. Because this is an appeal from a decision of the Consumer and Commercial Division, leave to appeal may only be granted if the Appeal Panel is satisfied an appellant may have suffered a substantial miscarriage of justice: See s 80(2(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act), Sch 4 cl 12 of the NCAT Act and Collins v Urban [2014] NSWCATAP 17.
2. Disposition of this appeal requires consideration of two matters only. First is the application to adduce new evidence. Second, whether the Tribunal was in error in its conclusions concerning the receipt by Goway of the $27,000 paid by Mr Thurston.
3. In relation to the application to adduce new evidence, this can be dealt with shortly.
4. Under Sch 4 cl 12(1)(c) of the NCAT Act, leave to appeal may be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)".
5. While the Appeal Panel may deal with an appeal by way of a new hearing and permit "fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance" (see NCAT Act s 80(3)) there are presently no grounds of appeal that warrant such a course being taken in this case.
6. Other than a submission that Mr Thurston did not know that the Tribunal would make findings that the tendered evidence did not establish the matters claimed, no basis was put forward as to why the material could not have been put before the Tribunal in first instance. The fact Mr Thurston was unsuccessful is not of itself sufficient reason to permit leave being granted.
7. It is clear from reading the identified material that it predates the original hearing or is evidence from witnesses who could have provided a statement and/or been called to give evidence at the original hearing. There is nothing on the face of the material to indicate it was not reasonably available as that term is used in Sch 4 cl 12(1)(c) of the NCAT Act: see Al-Daouk v Mr Pine at [19]-[26] particularly at [23].
8. It follows that the application for leave to appeal on the basis there is significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with should be refused.
9. The second question involves the Tribunal's conclusions concerning the receipt by Goway of the $27,000 paid by Mr Thurston.
10. The appellant challenges the Tribunal's conclusion there was no evidence that Goway was told Mr Thurston paid the $27,000 to it. In essence, the challenge is in respect of the Tribunal failing to consider relevant evidence, namely the email of 27 October 2020 from Mr Ide to Ms Comito.
11. The Court of Appeal in Misfud v Campbell (1990) 21 NSWLR 725, considered the failure of a trial judge to refer to particular evidence. Samuels JA (with whom Clarke JA and Hope AJA agreed) said at 728: … in my opinion, it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depends, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adverse area and create a litigant who is not only "disappointed" but "disturbed" - do use the words which appear in the New Zealand case of Connell v Auckland City Council [1977] 1 NZLR 630 at 634. If it does, as in my opinion is the case here, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in what I would take to be an error of law which is reviewable on appeal. Whether it is an error of law or an error of fact, it seems to me a failure by judge to do what the nature of the office requires.
12. It follows that a failure to consider relevant evidence may be an error of law. Otherwise, leave to appeal may be required in relation to the factual findings.
13. At [69]-[74] of the Reasons, the Tribunal made the following findings: 69 I do not accept in this case the respondent has been unjustly enriched. I am satisfied the applicant, perhaps naively, paid the $27,000 to Mr Ide. The person who appears to have been unjustly enriched is in my view Mr Ide. When the money was transferred by the applicant into Mr Ide's account it is recorded by the bank as having been received from "Thurston". Twelve days after he received it from the applicant, Mr Ide transferred the funds to his own credit card. Subsequently when he transferred the money from his credit card to Goway, any reference to "Thurston" on the financial transfer had been expunged and the transfer showed up in the Goway account as being received from Mr Ide's credit card. 70. There is no evidence from Mr Ide to explain why he transferred the money from one of his accounts into another of his accounts before transferring the money to Goway. There is no evidence from Ide as to when or by what means he informed the respondent that the funds were in fact to be treated as having been paid by Mr Thurston in its accounts (emphasis added). There is no evidence from Mr Ide to explain how it was that he and his partner were able to enjoy the extensive travel they undertook in that period. 71. I am satisfied the applicant paid the sum of $27,000 to his cousin, Mr Ides on the 14 October 2016. There is nothing in writing between the applicant and Mr Ides in relation to this transaction. 72. The applicant said he paid the money to Mr Ide after he read the email Mr Ides sent to his mother. The applicant could not point to any offer made by Goway in relation to the transaction. Nor is there evidence in my view of a contract between Mr Ide and the applicant in relation to the travel offer or the money transfer. 73. This was not an insubstantial sum of money that the applicant transferred. One would expect the applicant would have confirmed with Mr Ide that he would transfer the money to Goway on his behalf, or at the least ask Mr Ide to confirm receipt of the sum of $27,000 into his own account. 74. Mr Ide held onto the funds for 12 days before he transferred it to his own account and then subsequently transferred it to Goway. The applicant said Mr Ide and Ms Comito were good friends. There is no evidence as to what Mr Ide told Ms Comito when he transferred the money to Goway (emphasis added). What is in evidence is that Mr Ide and his girlfriend Ms Bailey travelled extensively on bookings made through Goway.
14. Having accepted Mr Thurston paid Mr Ide and that Mr Ide paid a similar amount to Goway, the Tribunal rejected the claim Goway had been unjustly enriched. In part, this was because the Tribunal concluded there was no evidence Mr Ide told Goway Mr Thurston was the source of the $27,000 payment and no evidence of what Mr Ide told Ms Comito when he transferred the money to Goway.
15. At [79] and following of the decision, the Tribunal drew an adverse inference against Mr Thurston for his failure to call Mr Ide. Here, the Tribunal said: 79. In the present case, given that Mr Ides is the person to whom the applicant paid the money and the person who transferred it to Goway, I think it reasonable to expect that he would have given evidence as to what he told Goway when he transferred the applicant's money. Again there is nothing in writing from Mr Ide confirming the transfer of the funds or how they were to be applied or that the money was to be applied to travel benefits for the applicant (emphasis added). For these reasons I find the first limb of the test in RHG Mortgage Ltd is satisfied. 80. As to the second limb, the evidence from Mr Ide would have elucidated exactly what happened to the money after he received it from the applicant and what directions he gave to Goway on behalf of the applicant. 81. Thirdly, and in my view importantly, the absence of evidence from Mr Ide was unexplained. The applicant said there was no reason why he was not called to give evidence or make a statement. However, if Mr Ide was an agent, contractor or employee or was in some other way authorised to accept money on behalf of the respondent for the sale of travel passes he could have given that evidence.
16. In its reasons, the Tribunal identified the relevant emails it was considering and the matters it took into account. The emails referred to did not include the email from Mr Ide to Ms Comito (AB Tab 2) dated 27 October 2016 nor Ms Comito's email sent to Muji Gurtala on the same day at 12:59 pm (AB Tab 4). Muji Gurtala was "Goway's Accounts Assistant at that time": see statement of the respondent's witness, Mr Forno, dated 6 September 2019, para 5. Mr Forno was a contractor of Goway subsequently engaged by Goway to investigate matters raised by Mr Thurston and the operations of Goway, including the activities of Ms Comito.
17. Mr Ide's email to Ms Comito was sent at 12:45pm. It was addressed to "To: Lisa Waite" and said: Hi Lis, Please find below the remaining names and card for processing. Lawler - 1 Pass - $9k 5163 1030 0149 8389 9/19 Mrdjen - 2 Passes - $18k (on Terry's card) 4530 3030 0205 3675 5/19 Thurston - 3 Passes - $27k (on Terry's card) 4530 3030 0205 3675 5/19
18. Ms Comito's email to Muji Gurtala, said (some formal parts omitted): Subject: Muji - Family & Friends - GORE270429 Hi Muji, New payments from today $17255.00 $17255.00 $11,200.00 $9000.00 $27,000.00 $18,000.00 Thank you xx Lisa Comito | Goway Travel | Operations Manager …
19. After a refund was requested by Mr Thurston, emails were exchanged between him and Ms Comito concerning the processing of this request. These emails are found in AB Tab 6. One email from Ms Comito (at a hotmail address) sent 22 August 2017 at 2:46 pm says: Hi Glen & Mary, I hope you are well. I apologise for the delay, I was waiting on the date from our accounts. I will receive this later today and advised (sic). The refunds can take up to 90 days. I did lodge this last week at requested time off phone call (sic). I will advise as soon as I receive exact date (hopefully earlier). Thank you
20. Again, these emails are not referred to in the Decision, other than for the purpose of recording when the applicant had first contact with Ms Comito: Decision at [16]. However, they are an acknowledgement by an employee of Goway (again Ms Comito) that funds were previously received by Goway from or on behalf of Mr Thurston.
21. Goway accepted that the sum of $27,000 was received: see Mr Forno's statement RB Tab 1 para 12. This is confirmed by Goway's bank statement showing processing of a $27,000.00 charge to Mr Ide's credit card on 27 October 2020: see AB Tab 3- Annexure A to Mr Forno's statement dated 6 September 2019. However, Goway contended that the identity of the party paying the money, namely Mr Thurston, was not made known to it, the only information available to Goway being that the payment was made by Mr Ide's credit card.
22. As to the role of Ms Comito, Mr Forno (RB Tab 1 statement dated 20 May 2019 para 5-7) gave evidence on behalf of Goway as follows: 5. In about 2004 Goway employed Ms Lisa Comito as an "FIT consultant" within its in-bound travel division. "FIT" stands for Fully Independent Tours. The role of an FIT consultant within Goway's in-bound travel division was to arrange travel within Australia and New Zealand for travel bookings that came to Goway from other agencies overseas, including Goway's parent company in Canada. 6. Ms Comito was later promoted to operations manager of the in-bound travel division of Goway, where her primary role was to supervise the other FIT consultants. In this role she reported to Greg Atkins the General Manager of Goway. From time to time, Ms Comito also provided out-bound/retail travel services to customers of Goway including by taking bookings and arranging for Goway's retail travel consultants to arrange flights and accommodation. 7. Goway terminated Ms Comito's employment in December 2018.
23. Contrary to the findings in the Decision at [70], [74] and [79], in our view this evidence, when considered with the Tribunal's other findings concerning the dealings of Goway, shows the following: 1. From time to time Ms Comito provided "out-bound/retail travel services to customers of Goway including by taking bookings and arranging for Goway's retail travel consultants to arrange flights and accommodation". She did so as an employee of Goway, having held various roles including Operations Manager. 2. Goway maintained an account titled Family & Friends - GORE270429 into which Ms Comito would direct payments she received from third parties for travel services to be provided by Goway. 3. One person from whom Goway would receive payments was Mr Ide, who arranged travel for himself and others. Some of these payments were made using Mr Ide's own credit card and other credit card numbers that would be notified to Ms Comito by Mr Ide. Ms Comito would then advise the accounts department of Goway to process the transactions and credit the above account using the supplied credit card details. 4. From time to time travel passes and other travel services were provided by Goway to Mr Ide and various people associated with him, including relatives of Mr Thurston. The funds received were used to pay for these services in what might be described as a running account. 5. Ms Comito was acting on behalf of Goway to arrange receipt of monies and directing their crediting to a relevant Goway account. While she may have received notification through her personal email (there being some evidence that she transacted business with clients of Goway through her personal emails) there is no evidence to which we have been referred or which the Tribunal has identified in its Reasons to suggest that Ms Comito provided travel services to third parties independently of Goway. 6. On 27 October 2019, Ms Comito was notified by email of various credit card transactions to be processed at the request of Mr Ide for third parties. This included an amount of $27,000 for Mr Thurston to be paid using Mr Ide's credit card. Mr Ide's email requested three transactions to be processed for three separate people (namely Lawler, Mrdjen and Mr Thurston). 7. By email sent a few minutes after Mr Ide's email, Ms Comito instructed the Goway accounts department to process the Thurston transaction and the other two amounts. At that time Ms Comito had been informed in writing by Mr Ide as to the source of the $27,000, namely Mr Thurston. As evidenced by relevant bank statenments, each of the three amounts recorded in Mr Ide's email, namely $9,000, $18,000 and $27,000 were processed separately on 27 October using the nominated credit card numbers on Mr Ide's emails.
24. We would infer there must have been other communications between Ms Comito with the accounts department additional to the email sent at 12:59 to Muji Gartala. This is because the three transactions were charged to the credit card numbers nominated in Mr Ide's email although this information was not provided in the email from Ms Comito to Muji Gartala.
25. There is no evidence from Ms Comito or Muji Gatala about what happened at this time in relation to the processing of these three payments other than the emails and bank statement to which we have referred. Mr Ide, who was not an employee of Goway, could not have been expected to give evidence about communication between these people who were employees of Goway. There was no reason to reject the contemporaneous documents as recording the circumstances in which Goway received the payment of $27,000.
26. Goway had submitted in the proceedings at first instance that the payment made by Mr Thurston through Mr Ide could not be traced. Reliance was placed on the Court of Appeal decision in Russell Gould Pty Ltd v Ramangkura [2014] NSWCA 310; 87 NSWLR 552 which referred to the decision of Lord Goff of Chieveley in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548, particularly at 572. In part, this submission was based on the fact Mr Thurston had not engaged in a tracing exercise and that the funds had become "mingled", being part of a mixed fund. However, as the email chain makes clear, there was a clear line of payments from Mr Thurston to Mr Ide by credit card who transferred the same funds by credit card to Goway. As Lord Goff said at 573: it is well established that a legal owner is entitled to trace his property into its product, provided that the latter is indeed identifiable as the product of his property.
27. The contemporaneous emails and evidence of Mr Thurston establish this fact.
28. It follows from the above that Goway, through Ms Comito, knew that a payment was made to it on behalf of Mr Thurston for travel passes and received the money on that basis.
29. The evidence of Mr Forno does not displace this conclusion. His evidence does not deal with the circumstances of who authorised the payment to be processed. Further, there is no evidence to which we have been referred otherwise detailing the circumstances in which the relevant credit card payments were processed nor is there evidence to suggest the payment was made otherwise than by Mr Ide on behalf of Mr Thurston and was processed by Goway pursuant to a written direction to Ms Comito as an employee of Goway. The fact Mr Ide received a "backcharge" of $55,748.60 does not affect this conclusion.
30. In these circumstances, the Tribunal's conclusions at [70], [74] and [79] that there was no evidence or no written evidence of a payment having been made by Mr Ide on behalf of Mr Thurston constitute an error of law. Further, and in any event, the decision of the Tribunal in this regard was against the weight of evidence and we are satisfied leave should be granted as the appellant may have suffered a substantial miscarriage of justice.
31. Mr Thurston contended that Goway had been unjustly enriched because it had received his money for which no services were provided.
32. In Equus, French CJ, Crennan and Kiefel JJ said at [30] (citations omitted): [30] In David Securities Pty Ltd v Commonwealth Bank of Australia, this Court explained the part played by unjust enrichment in a claim for money had and received (in that case for recovery of a payment made under mistake of law). That explanation may be expressed, at a fairly high level of abstraction, as an approach to determining such claims. In summary: . recovery depends upon enrichment of the defendant by reason of one or more recognised classes of "qualifying or vitiating" factors; . the category of case must involve a qualifying or vitiating factor such as mistake, duress, illegality or failure of consideration, by reason of which the enrichment of the defendant is treated by the law as unjust; . unjust enrichment so identified gives rise to a prima facie obligation to make restitution; . the prima facie liability can be displaced by circumstances which the law recognises would make an order for restitution unjust. Unjust enrichment therefore has a taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another. In that aspect, it does not found or reflect any "all-embracing theory of restitutionary rights and remedies". It does not, however, exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief. It has been said of Lord Mansfield's judgment in Moses v Macferlan that it was his view that "the grounds for obtaining relief in money had and received were not to be considered static and the remedy could be made available in any case in which money had been paid in circumstances where it was unjust for the defendant to retain it." Nor is the emergence of general principle precluded when "derived from judicial decisions upon particular instances". These appeals, however, focus upon the particular category of case involving "failure of consideration". [31] Failure of consideration is one of the factors that makes retention of a benefit prima facie unjust. It was recognised by Lord Mansfield as a ground for a claim for money had and received. It was a criterion of recoverability which survived the rejection in the United Kingdom and Australia of the implied contract theory. This Court has, on more than one occasion, described failure of consideration in terms set out by the late Professor Birks: "Failure of the consideration for a payment ... means that the state of affairs contemplated as the basis or reason for the payment has failed to materialise or, if it did exist, has failed to sustain itself." [32] As Gummow J pointed out in Roxborough v Rothmans of Pall Mall Australia Ltd, failure of consideration for the purpose of a claim for money had and received is not confined by contractual principles. In that case there had been no failure of performance by Rothmans of any promise it had made. There was no question of repudiation by it of its contractual obligations. The question was whether it was "unconscionable" for Rothmans as the recipient of payments to retain them in circumstances in which it was not specifically intended or especially provided that it should so enjoy them. The question of unconscionability, as his Honour explained, derived from the general equitable notions which found expression in the common law count for money had and received. This Court acknowledged in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation that "contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience" albeit the action itself is not for the enforcement of a trust. The reference to conscionability in this context, however, does not mean that whether enrichment is unjust is to be determined by reference to a subjective evaluation of what is fair or unconscionable. As the Court reiterated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd: "recovery rather depends on the existence of a qualifying or vitiating factor falling into some particular category." (footnote omitted)
33. In Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516, Gleeson CJ, Gaudron and Hayne JJ said at [16] (citations omitted): Failure of consideration is not limited to non-performance of a contractual obligation, although it may include that. The authorities referred to by Deane J, in his discussion of the common law count for money had and received in Muschinski v Dodds, show that the concept embraces payment for a purpose which has failed as, for example, where a condition has not been fulfilled, or a contemplated state of affairs has disappeared. Deane J, referring to "the general equitable notions which find expression in the common law count", gave as an example "a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it". In the case of money paid pursuant to a contract, it would involve too narrow a view of those "general equitable notions" to limit failure of consideration to failure of contractual performance. In the present case, the amount of the net total wholesale cost referable to the tax was, from one point of view, part of the money sum each appellant was obliged to pay to obtain delivery of the tobacco products. But there was more to it than that. The tax was a government imposition, in the form of a fee payable under a licensing scheme. The nature of the scheme was such that the licensed wholesaler, or, if not the wholesaler, then the licensed retailer, would pay the amount referable to particular tobacco products. The respondent, anticipating liability for the fee, required the appellants, when purchasing products by wholesale, to pay an amount equal to the fee. The appellants, in turn, had an interest in the respondent paying the fee to the revenue authorities, for they were thereby relieved of a corresponding liability. There was a purpose involved in the making of the requirement that the appellants pay the amounts described as "tobacco licence fee", and in the compliance with that requirement. To describe those amounts as nothing more than an agreed part of the price (or, to use the language of the parties, cost) of the goods, is to ignore an important aspect of the facts.
34. Neither party contends Mr Thurston received any travel services from Goway. It was for this purpose that the payment of $27,000 was made. On any view, having received money from Mr Thurston, the purpose of the payment has failed. Whether it is because no contract was formed or there was a failure to perform the contract by Goway is unnecessary to decide. It is enough that the payment was made and money received for a purpose that has failed.
35. It follows that the claim for monies had and received is made out.
36. The fact Goway purported to apply the monies received towards travel supplied to Mr Ide and/or to "backcharge" any amount and refund any sums to Mr Ide provides no basis for denying Mr Thurston's claim. There is no evidence to which we have been referred whereby Mr Thurston (or for that matter Mr Ide) made any representation to Goway that the money paid by credit card in accordance with the email dated 27 October 2016 could be applied towards travel undertaken by Mr Ide rather than Mr Thurston.

Costs

1. Mr Thurston sought an order for costs.
2. The amount claimed or in dispute in the proceedings was $27,000. Consequently, s 60 of the NCAT Act applies. That is, each party is to pay their own costs although the Tribunal may award costs if satisfied there are special circumstances.
3. Mr Thurston asserts Goway "withheld evidence" concerning information Mr Forno obtained during his investigation of the internal procedures concerning the issue of staff/family and friends travel passes. Mr Thurston says he "would not have incurred additional legal, air travel etc in excess of $9000 costs in seeking the return of $27,000.
4. What these costs are and how they were incurred is not explained. In any event, there was no obligation on Goway for it or Mr Forno to report upon any investigations which he undertook on behalf of the respondent. It was for Mr Thurston to provide evidence to support his claim and Goway was entitled to provide such evidence in response as it thought fit. There was no general disclosure obligation which Goway had in relation to the proceedings brought by Mr Thurston and no evidence to support the assertion that Goway withheld evidence or acted in an inappropriate manner in its conduct of the proceedings.
5. There are no special circumstances which would warrant the Tribunal exercising its power to award costs in this appeal or in the proceedings at first instance. Consequently the application for costs is dismissed.

Orders

1. The appellant has been successful in his claim. Consequently, the Appeal Panel makes the following orders: 1. To the extent necessary, leave to appeal is granted and the appeal is allowed. 2. The order made 13 November 2019 in application GEN 19/13558 is set aside and in lieu thereof the respondent, Goway Travel Pty Ltd is to pay the applicant Glen Thurston the sum of $27,000, such sum to be paid within 28 days of the date of these orders. 3. The appellant's application for costs is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2020