G & H Minard Investments (Aust) Pty Ltd v Investment & Property Choices Pty Ltd; Gooroovadoo v Investment & Property Choices Pty Ltd [2014] NSWCA 418

G & H Minard Investments (Aust) Pty Ltd v Investment & Property Choices Pty Ltd; Gooroovadoo v Investment & Property Choices Pty Ltd [2014] NSWCA 418

Leave to appeal was refused because, although the trial judge made a conceded factual error about whether the applicants had already had the benefit of the $21,307 claimed, correction of that error was not clearly likely to alter the result. The deed lacked clear operative provisions, the identity of the person liable to repay was unclear, the circumstances and timing of any repayment were unclear, the money had and received claim was inadequately particularised, the total failure of consideration claim was untenable, there was no issue of principle or public importance, and the costs of an appeal were disproportionate to the relatively small amount in dispute.

Jurisdiction
Australia
Judgment Date
02 December 2014
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court Judgment
Outcome
Leave to appeal refused; applicants ordered to pay the respondents' costs.
Legal Topics
['leave to Appeal' 'factual Error by Trial Judge' 'construction of Deed and Recital' 'buyer Agreement Fee' 'money Had and Received' 'total Failure of Consideration']
['practice and Procedure' 'contract' 'restitution'] ['leave to Appeal' 'factual Error by Trial Judge' 'construction of Deed and Recital' 'buyer Agreement Fee' 'money Had and Received' 'total Failure of Consideration']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From District Court Judgment

Legal Issues

  1. 1 ['Whether leave to appeal should be granted where the trial judge made a factual error but the amount in issue was small and the proposed appeal had limited prospects of success.' 'Whether Recital C of the deed created a contractual entitlement to repayment of part of the buyer agreement fee.' 'Whether the applicants had an arguable claim for money had and received, including on the basis of total failure of consideration or mistake.']

Ratio Decidendi

Leave to appeal was refused because, although the trial judge made a conceded factual error about whether the applicants had already had the benefit of the $21,307 claimed, correction of that error was not clearly likely to alter the result. The deed lacked clear operative provisions, the identity of the person liable to repay was unclear, the circumstances and timing of any repayment were unclear, the money had and received claim was inadequately particularised, the total failure of consideration claim was untenable, there was no issue of principle or public importance, and the costs of an appeal were disproportionate to the relatively small amount in dispute.

Court Disposition

Leave to appeal refused; applicants ordered to pay the respondents' costs.

Orders

  • ['Refuse the applicant(s) leave to appeal.' "Order that the applicant(s) pay the respondent's costs." 'Reasons reserved.']