03/01/2020
It is a well-established principle of the English common law that when money has been received by one person which in justice and equity belongs to another, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover as for money had and received to his use. The action was, as Lord Mansfield said in Moses v Macferlan, “quasi ex contractu” and founded on an obligation imposed by law and accommodated within the system of formal pleading by means of the fictitious assumpsit or promise.
The principle extends to cases where the money has been paid for a consideration that has failed. Whether the action is based on an implied promise to pay, or on a principle designed to prevent unjust enrichment, the emphasis on justice and equity in both old and modern authority on this subject supports the view that the action will not lie unless the defendant in justice and equity ought to pay the money to the plaintiff.
This was our legal submission to the Supreme Court of NSW- Court of Appeal for our client on a landmark win just few weeks ago; Nagamuthu v Shanmugarajah [2019] NSWCA 288
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15,....
