Singh v Khan (No 2) [2021] FCA 463

Singh v Khan (No 2) [2021] FCA 463

The applicant's statement of claim was again struck out as it failed to disclose a reasonable cause of action against the first and second respondents, did not adequately plead the constructive trust or set-off causes of action, and contained multiple pleading defects. The only tenable cause of action was a claim for money had and received against the third respondent (Fobupu Pty Ltd) for overpaid rent due to mistake of law regarding withholding tax. However, any recovery would be held on constructive trust for the Commissioner of Taxation; this fact does not defeat the action, but prevents the applicant from recovering beneficially. Leave was granted to replead only the money had and...

Jurisdiction
Australia
Judgment Date
05 May 2021
Procedural Posture
Interlocutory Application (strike Out) / Judgment on Application to Strike Out Statement of Claim
Outcome
Application granted in part; statement of claim struck out; proceeding dismissed against first and second respondents; leave to replead against third respondent on limited grounds; costs reserved.
Legal Topics
['unjust Enrichment' 'constructive Trust' 'money Had and Received' 'withholding Tax' 'pleading Rules' 'strike Out Applications']
['restitution' 'equity' 'taxation' 'practice and Procedure'] ['unjust Enrichment' 'constructive Trust' 'money Had and Received' 'withholding Tax' 'pleading Rules' 'strike Out Applications']

Case Brief

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Procedural Posture

Interlocutory Application (strike Out) / Judgment on Application to Strike Out Statement of Claim

Legal Issues

  1. 1 ['Whether a claim for money had and received on a mistake of law requires pleading of loss or liability to a third party' 'Whether recovery held on constructive trust for a third party can be raised as a defence to a claim for money had and received' 'Whether a constructive trust is imposed where overpayment is made by mistake in the absence of unconscionability' 'Whether the applicant has pleaded a reasonable cause of action against each respondent']

Ratio Decidendi

The applicant's statement of claim was again struck out as it failed to disclose a reasonable cause of action against the first and second respondents, did not adequately plead the constructive trust or set-off causes of action, and contained multiple pleading defects. The only tenable cause of action was a claim for money had and received against the third respondent (Fobupu Pty Ltd) for overpaid rent due to mistake of law regarding withholding tax. However, any recovery would be held on constructive trust for the Commissioner of Taxation; this fact does not defeat the action, but prevents the applicant from recovering beneficially. Leave was granted to replead only the money had and...

Court Disposition

Application granted in part; statement of claim struck out; proceeding dismissed against first and second respondents; leave to replead against third respondent on limited grounds; costs reserved.

Orders

  • ["The applicant's statement of claim filed on 29 March 2021 is struck out." 'The proceeding is dismissed as against the first and second respondents.' 'The applicant has leave to file a new statement of claim by 31 May 2021 to plead a money had and received claim against the third respondent for monies overpaid for...