Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748

Lactos Fresh Pty Ltd v Finishing Services Pty Ltd (No 2) [2006] FCA 748

Applicant is entitled to restitution of the overpaid rent paid under protest, as payments were made under compulsion due to threat of eviction by the landlord, who had no right under the lease to increase rent via invalid notice. The threat constituted duress sufficient to found a claim for money had and received. Leave to amend pleadings for the first respondent post-judgment is refused due to low prospects of success and need for finality. Costs apportioned: first respondent to pay 20% of applicant's costs, no indemnity costs for second respondent.

Parties
Applicant: Lactos Fresh Pty Ltd; First Respondent: Finishing Services Pty Ltd; Second Respondent: Colliers International (Victoria) Pty Limited
Jurisdiction
Australia
Judgment Date
15 June 2006
Procedural Posture
Commercial/restraint of Trade / Post Judgment Orders and Costs Disposition
Outcome
Applicant entitled to restitution of overpaid rent from first respondent, with interest; leave to amend pleadings refused; costs apportioned as specified; no indemnity costs; no variation to orders as between applicant and second respondent.
Legal Topics
Money Had and Received, Unjust Enrichment, Lease/rent Review, Costs Apportionment, Pleading Amendment
Restitution Contract Practice and Procedure Money Had and Received Unjust Enrichment Lease/rent Review Costs Apportionment Pleading Amendment

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Parties

Lactos Fresh Pty Ltd

Applicant

Finishing Services Pty Ltd

First Respondent

Colliers International (Victoria) Pty Limited

Second Respondent

Procedural Posture

Commercial/restraint of Trade / Post Judgment Orders and Costs Disposition

Legal Issues

  1. 1 Whether the applicant is entitled to restitution of overpaid rent paid under protest
  2. 2 Whether threat to evict constitutes compulsion for restitution
  3. 3 Whether leave to amend pleadings for first respondent post-judgment should be granted

Ratio Decidendi

Applicant is entitled to restitution of the overpaid rent paid under protest, as payments were made under compulsion due to threat of eviction by the landlord, who had no right under the lease to increase rent via invalid notice. The threat constituted duress sufficient to found a claim for money had and received. Leave to amend pleadings for the first respondent post-judgment is refused due to low prospects of success and need for finality. Costs apportioned: first respondent to pay 20% of applicant's costs, no indemnity costs for second respondent.

Court Disposition

Applicant entitled to restitution of overpaid rent from first respondent, with interest; leave to amend pleadings refused; costs apportioned as specified; no indemnity costs; no variation to orders as between applicant and second respondent.

Orders

  • First respondent's application to file and serve amended defence and cross-claim refused.
  • First respondent to repay applicant overpaid rent (as defined in reasons), with interest calculated per judgment.