Re Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF Mccloy Pty Ltd and Donald Francis Mccloy [1991] FCA 27; (1991) 13 Atpr 41-091/21 Atr 1494; 100 ALR 447 28 FCR 151 (15 February 1991)

FEDERAL COURT OF AUSTRALIA

Re: INN LEISURE INDUSTRIES PTY LTD (Provisional liquidator Appointed)
And: D.F. McCLOY PTY LTD and DONALD FRANCIS McCLOY
No. WA G124 of 1989
FED No. 30
Trade Practices - Mistake - Sales Tax
[1991] FCA 27; (1991) 13 ATPR 41-091/21 ATR 1494
100 ALR 447
28 FCR 151

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Trade Practices - misleading or deceptive conduct - misrepresentation as to law - relevant facts known to both parties - whether mere statement of opinion - liability to sales tax - purchaser of boat claiming transaction exempt - refund of amount of sales tax by manufacturer - misrepresentation as to law generally - no misleading or deceptive conduct.

Mistake - mistake of law - liability for sales tax - manufacturer of luxury boat - refund of part of purchase price to purchaser - all relevant facts known - erroneous belief that exemption applied - common law and equitable exclusion of recovery for mistake of law - special statutory provision - Property Law Act 1969 (WA) s.124 - money recoverable.

Sales Tax - exemptions and classifications - vessels "not including those used principally for purpose of pleasure, sport, recreation" - "used for" - objective characterisation of goods - intention of manufacturer and purchaser - relevance - charter fishing purposes - whether attract exemption - certificate of conditional exemption - nature and function.

Words and Phrases - "used principally for...".

Sales Tax Assessment Act (No. 1) 1930 ss. 17, 19, 20

Sales Tax (Exemptions and Classifications) Act 1935 s.5(1) and Sub-item 119(1) of the Second Schedule

Property Law Act 1969 (WA) ss.124 and 125

Trade Practices Act 1974 s.52

Kerr on Fraud and Mistake, Seventh Edition

Spencer Bower and Turner, The Law of Actionable Misrepresentation, Third Edition

Goff and Jones, The Law of Restitution, Third Edition

Cameron, "Payments made under Mistake" (1959) NZLJ 4

Commissioner of Taxation (SA) v. Ellis and Clark Ltd [1934] HCA 54; (1934) 52 CLR 85

Deputy Commissioner of Taxation v. Lincoln Industrial Cleaners Pty Lt d (1975) 2 NSWLR 499

Federal Commissioner of Taxation v. Hamersley Iron Pty Ltd (1981) 37 ALR 595

Deputy Commissioner of Taxation v. Stewart [1984] HCA 11; (1984) 154 CLR 385

Territorial and Auxiliary Forces Association of the County of London v. Nichols (1949) 1 KB 35

Harse v. Pearl Life Assurance Co. Ltd (1904) 1 KB 558

Phillips v. Royal London Mutual Insurance Co. Ltd (1911) 105 LT 136

Foran v. Wight [1989] HCA 51; (1989) 168 CLR 385

Rashdall v. Ward (1866) LR Eq 750

Beattie v. Lord Ebury (1872) LR Ch App 777

Eaglesfield v. Marquis of Londonderry (1876) 4 Ch D 693

West London Commercial Bank v. Kitson (1884) 13 QBD 360

Oudaille v. Lawson (1922) NZLR 259

Trade Practices Commission v. Lamova Publishing Corp Pty Ltd (1979) 28 ALR 416

Benlist Pty Ltd v. Olivetti Australia Pty Ltd (1990) ATPR 40-043

S.W.F. Hoists and Industrial Equipment Pty Ltd v. State Government Insurance Commission (1990) ATPR 41-045

MacKenzie v. Royal Bank of Canada (1934) AC 468

Henjo Investments Pty Ltd v. Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 79 ALR 83

Bilbie v. Lumley (1802) 2 East 469

Lansdown v. Lansdown [1730] EngR 288; (1730) Mos 364; 25 ER 441

Brisbane v. Dacres [1813] EngR 486; (1813) 5 Taunt 143; 128 ER 641

Kirri Cotton Co. Pty Ltd v. Dewani (1960) AC 192

Werrin v. The Commonwealth [1938] HCA 3; (1938) 59 CLR 150

York Air Conditioning and Refrigeration (A/Asia) Pty Ltd v. Commonwealth [1949] HCA 23; (1949) 80 CLR 11

Mason v. New South Wales [1959] HCA 5; (1959) 102 CLR 108

J. and S. Holdings Pty Ltd v. NRMA Insurance Ltd [1982] FCA 78; (1982) 61 FLR 108

David Securities Pty Ltd v. The Commonwealth (1990) 23 FCR 1

Air Canada v. Queen in Right of British Columbia (1989) 59 DLR (4th) 161

Mercury Machines Importing Corporation v. City of New York (1957) 144 NE 2d 400

Bell Bros Pty Ltd v. Shire of Serpentine-Jarrahdale (1969) WAR 104

South Australian Cold Stores Ltd v. Electricity Trust of South Australia [1957] HCA 69; (1957) 98 CLR 65

Larner v. London County Council (1949) 2 KB 683

HEARING

PERTH
15:2:1991

Counsel for the Applicant: Mr D.S. Ellis

Solicitors for the Applicant: Freehill, Hollingdale and Page

Counsel for the Respondent: Mr C.G. Colvin

Solicitors for the Respondent: Robinson Cox

ORDER

There be judgment for the applicant against the first respondent in the sum of $112,360.00.

The application against the second respondent be dismissed.

The parties have liberty to apply within 7 days for orders as to the costs of the application.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

In August 1986 a boatbuilder carrying on business in Western Australia delivered a newly constructed 17 metre luxury launch called "Condor" to a New South Wales based purchaser. The contract price included an allowance for sales tax payable by the builder. The purchaser maintained, however, that the proposed uses of the boat for charter fishing and corporate entertainment purposes meant that the transaction was exempt from sales tax by virtue of the Sales Tax (Exemptions and Classifications) Act 1935. The boatbuilder did not pay the sales tax and refunded to the purchaser so much of the contract price as had been allocated for that purpose, some $91,484.

2. In 1988, following an audit by the Australian Taxation Office, the boatbuilder conceded that it was liable to pay the sales tax on that and other boats it had built, and following its concession paid the tax and a penalty assessed by the Commissioner of Taxation. The boatbuilder now claims that the purchaser wrongly represented that sales tax was not payable and thereby engaged in misleading or deceptive conduct in contravention of the Trade Practices Act 1974. It claims that the refund made to the purchaser was paid in reliance on the purchaser's representation, and that it is entitled to recover the loss sustained as a result. Alternatively, the boatbuilder says it paid the refund to the purchaser under a mistake of fact or law, and is entitled to recover it for that reason. In that regard it relies upon s.124 of the Property Law Act 1969 (WA). Before turning to the history of the matter in more detail, it is useful to set out the relevant statutory provisions.
Statutory Framework

3. The liability upon a manufacturer of goods to pay sales tax is imposed by ss. 17 and 19 of the Sales Tax Assessment Act (No. 1) 1930. Sub-section 17(1) is in the following terms:
"17(1) Subject to, and in accordance with, the

provisions of this Act, the sales tax imposed by the
Sales Tax Act (No. 1) 1930 shall be levied and paid
upon the sale value of goods manufactured in Australia
by a taxpayer and sold by him or treated by him as
stock for sale by retail or applied to his own use."

It is not in issue in the present case that the Condor constituted "goods manufactured in Australia by a taxpayer and sold by him". Liability is imposed directly by s.19 of the Act, which provides:

"19. Sales tax shall be paid by the manufacturer of
goods manufactured in Australia and -
(a) sold by the manufacturer to an
unregistered person or to a registered
person who has not quoted his certificate
in respect of the sale;
(b) treated by the manufacturer as stock for
sale by retail; or
(c) applied by the manufacturer to his own use."

It is not in issue that the purchaser was an unregistered person for the purposes of this section.

4. The liability imposed by s.19 is qualified by s.20:

"20. Notwithstanding anything contained in section 19,
sales tax shall not be payable under this Act by the
person specified in that section upon the sale value
of goods the sale value of which is, by virtue of the
Sales Tax (Exemptions and Classifications) Act 1935-1973
exempt from sales tax under this Act."

5. The Sales Tax (Exemptions and Classifications) Act 1935 provides in s.5(1):

"Notwithstanding anything contained in any Sales Tax
Assessment Act, sales tax shall not, subject to this
section, be payable upon the sale value of any goods
covered by any item or sub-item in the first column of
the First Schedule, under any Act specified in the
second column of that Schedule opposite that item or
sub-item."

Sub-item 119(1) of the First Schedule to the Act defines the following class of exempt goods:

"119(1) Ships and other vessels, but not including
those to be used exclusively or principally for
purposes of pleasure, sport, recreation, private
transport or accommodation either by the owner thereof
or by any other person or persons, whether or not that
use is to be in accordance with a charter or other
hiring agreement or otherwise for reward."

And the exemption thus established applies to liabilities otherwise imposed under the Assessment Acts 1 to 9. Sub-item 119(1AA) relates to vessels to be used in the course of a business which has as one of its objects the providing, for the public, of transport of passengers for reward otherwise than on sight-seeing tours. Sub-item 119(1A) exempts:

"119(1A) Ships and other vessels licensed to carry not
less than 12 adult passengers and to be used
exclusively or principally -
(a) by the relevant owner or relevant owners;
(b) in the course of a business carried on by
the relevant owner or relevant owners,
being a business having as its object, or
as one of its objects, the providing, for
the public, of transport of passengers for
reward on sight-seeing tours; and
(c) for the purpose of providing, for the
public, transport of passengers for reward
on regular and scheduled sight-seeing tours."

Also relevant for present purposes is s.124 of the Property Law Act 1969 (WA) which provides for recovery of payments made under mistake of law:>

"124(1) Subject to the provisions of this section,
where relief in respect of any payment that has been
made under mistake is sought in any court, whether in
an action or other proceeding or by way of defence,
set off, counterclaim or otherwise, and that relief
could be granted if the mistake were wholly one of
fact, that relief shall not be denied by reason only
that the mistake is one of law whether or not it is in
any degree also one of fact.
(2) Nothing in this section enables relief to be
given in respect of any payment made at a time when
the law requires or allows, or is commonly understood
to require or allow, the payment to be made or
enforced, by reason only that the law is subsequently
changed or shown not to have been as it was commonly
understood to be at the time of payment."

Section 125 of the Act provides for circumstances under which payments under mistake of law or fact are not recoverable or may be recovered by instalments:

"125(1) Relief, whether under section 124 or in equity
or otherwise, in respect of any payment made under
mistake, whether of law or fact, shall be denied
wholly or in part if the person from whom relief is
sought received the payment in good faith and has so
altered his position in reliance on the validity of
the payment that in the opinion of the Court, having
regard to all possible implications in respect of the
parties (other than the plaintiff or claimant) to the
payment and of other persons acquiring rights or
interests through them, it is inequitable to grant
relief, or to grant relief in full.
(2) Where the Court makes an order for the
repayment of any money paid under a mistake, the Court
may in that order direct that the repayment shall be
by periodic payments or by instalments, and may fix
the amount or rate thereof, and may from time to time
vary, suspend or discharge the order for cause shown,
as the Court thinks fit."

Factual Background

6. The applicant company was incorporated in Victoria on 22 October 1982 and subsequently named Inn Leisure (Properties) Pty Ltd. It was then, or became, a subsidiary of one of the Queensland based Quintex group of companies. In December 1984 it was the vehicle for the acquisition of the Perth based boatbuilding business known as Precision Marine and changed its name to Precision Marine Holdings Pty Ltd ("PMH"). The Precision Marine business thus acquired had been carried on previously as a division of a company called "Precision Mouldings Pty Ltd". PMH changed its name to Inn Leisure Industries Pty Ltd on 13 September 1990 and on 12 October 1990 the Supreme Court of Queensland appointed its provisional liquidators. The first respondent, D.F. McCloy Pty Ltd ("DFM"), was incorporated in New South Wales. While the full range of its activities does not emerge from the evidence, it is apparent that as early as 1986 one of them was a boat charter business conducted under the name "Condor Charters". Donald Francis McCloy was at all material times a director of the company.

7. The present proceedings arise out of events following the making of a written agreement entered into on 10 December 1985 between PMH and DFM under which PMH was to construct and supply, by September 1986, a "Precision 17 Metre Off-shore Gamefishing Charter Vessel" for $637,173. The agreement was set out on an order form under the letterhead "Precision Marine", described on the form as "A Division of Precision Mouldings Pty Ltd". This was old stationery which pre-dated the acquisition of the business by Inn Leisure (Properties) Pty Ltd, and it was common ground that it reflected an agreement between the PMH and DFM. It is also common ground that the price of the vessel included an allowance for sales tax payable by PMH in respect of the sale.

8. When the Quintex Group acquired the Precision Marine business and Inn Leisure (Properties) Pty Ltd became PMH, Robert Blom was appointed as a director of the company and manager of its marketing until late 1986, when he became managing director. He had a previous association with the business, having been employed as a commission salesman for about 8 to 10 years until 1980, when he formed his own company, Westcoaster Pty Ltd, to carry on a boat building business in competition with his former employer. He had had extensive experience in negotiating contracts for the sale of boats, some 1,000 or so up to 1990. He had prepared quotes, sometimes including an allowance of sales tax and sometimes not. Blom had negotiated with representatives of DFM for about 5 months prior to the written agreement and largely, it seems, with Donald McCloy. During that time the question of sales tax was not specifically discussed. Blom said that his company's "stance" was that sales tax would be payable unless and until it was satisfied that the vessel could attract an exemption.

9. Construction of the boat pursuant to the agreement commenced, and it is common ground that it was delivered to DFM in August 1986. It was named "Condor" by the purchaser which, as already mentioned, had established a business under the name "Condor Charters". Its operator was to be one of Donald McCloy's sons, Steven, who had a Master's Ticket. During the construction period, various progress payments were made, as evidenced by a "Final Summary of Account" dated 27 August 1986. An increase in the contracted price to $658,687 arose from a number of variations to the original specification. The precise amount paid under the contract was in issue on the pleadings, but in the event was not directly material.

10. Prior to delivery of the vessel and while it was still under construction, Blom had a number of conversations with representatives of DFM, mainly members of the McCloy family, relating to the question whether the sale of the vessel by PMH would attract a liability on its part to pay sales tax. Not long after the contract was signed, Donald McCloy told Blom that he would be seeking an exemption from sales tax in respect of the vessel and that he was taking advice in that regard. Subsequently, in October 1986, according to Blom, Graham McCloy, who was the general manager of DFM at the time, told him that his company claimed an exemption and that PMH should not pay any sales tax to the Australian Taxation Office. No tax had been paid by PMH at that time. The conversation, of which Blom had only a vague recollection, was followed by a letter dated 22 October 1986 from J.R. McCloy who signed as managing director of DFM. It was addressed to The Manager, Precision Marine and marked for Blom's attention. It was in the following terms:

"Further to your telephone conversation with our Graham
McCloy of last week, we ask that you keep us informed
of developments re the Sales Tax position on our vessel.
As discussed it is imperative that no further Sales
Tax be paid on Condor, as we will send you the
required paperwork that gives us our exemption."

Following this letter there was some further discussion between Blom and either Donald or Graham McCloy, in the course of which Blom was told that the McCloys had received advice that the vessel was exempt. He was also told that they were having "a bona fide sales tax certificate" issued to PMH. He had a vague recollection that at that time a firm of accountants, Nelson Wheeler, were carrying out the annual audit for his company. He said he thought he had asked the partner in charge of the audit for his views on the claimed exemption and was told that he was probably bound to accept it. In any event, on 13 November 1986, Donald McCloy sent him a letter addressed to the Commissioner of Taxation in the following terms:

"I hereby certify that the vessel purchased from
Precision Marine (A division of Precision Mouldings
Pty Ltd) on 10th December 1985 is to be used for
business purposes only and exemption is accordingly
claimed under Item No. 119(i) in the first schedule to
the Sales Tax (Exemption and Classification) Act."

The reference to Precision Mouldings Pty Ltd reflected the terms of the letterhead used on the written agreement of 10 December and the date of purchase specified was that of the agreement. Blom responded on 14 November with a fax acknowledging receipt of the letter and advising that "(r)efund of sales tax will be returned in TNT Air Bag on Monday 17th November". It is common ground that on 17 November, PMH sent a cheque for $91,484 to DFM. The way in which that sum was calculated was not expressly addressed on the evidence, but I take it to have been an estimate of that part of the purchase price, as varied, which had been included on the assumption that sales tax would be payable.

11. In the course of discussions with members of the McCloy family during the construction period, Blom was told that the boat was to be chartered to one of the syndicates in the America's Cup Challenge race competition to be conducted off Fremantle in the last quarter of 1986. And that was the fact as evidenced by a written agreement dated 21 September 1986 between DFM trading as "Condor Charters" and the Heart of America Challenge Syndicate. It was signed for DFM by Steven McCloy. Blom also recalled that during discussion with Donald McCloy he was told that the vessel was to be used subsequently for charter fishing operations. He understood charter fishing operations to involve "...say 5 to 10 people, whatever the vessel was licensed to carry, rolling up at a given point, at a given time and paying money and doing a day's fishing". He also said that as he "understood" it the vessel was to be used on a scheduled run from a home port. At another point he was asked whether Donald McCloy's sons had said anything about their positions or roles within the company and the operation of the vessel. He replied:

"Well, I was under the impression it was going to be
used on a scheduled run as a business and it was set
up, you know, purely as a business as such, which a
lot of charter boats are. I think most of the
discussions I probably had was I think with Graham
McCloy who was one of the executives of McCloy Pty Ltd."

There was no more direct testimony than this of any representation that scheduled runs were contemplated. In a memorandum to Blom dated 26 November 1985 from one Nic Doig of Precision Lloyd's in New South Wales in relation to a proposed visit by Don McCloy to Perth, it was said that "Don owns a Cresta 46, regularly fishes at Lizard Island and wants a surveyed gameboat/mothership for his son Steve to run". Blom speculated in evidence that this probably referred to a scheduled run at Lizard Island "which in my eyes would be an exempt vessel and...he wanted a boat to replace that other vessel". I am not satisfied that any specific representation was ever made that the Condor was to be used on scheduled runs. The evidence suggests that it was intended to use the vessel for charter operations, initially in connection with the America's Cup, but subsequently and principally for fishing and corporate entertainment purposes.

12. Blom accepted that it was his company's responsibility as manufacturer to make its own assessment of its liability to pay sales tax. He said he formed the view that the tax was not payable after discussions with Donald and Graham McCloy, John Baldock, a marketing manager with PMH, Michael Sudbury of Nelson Wheeler "and probably the best of my judgment". He said at one point that he "might have been under the impression" that DFM's advisers had obtained a ruling from the Australian Taxation Office in Brisbane. Asked in cross-examination whether he would differ from McCloy's contention that there was no such ruling nor any mention of it, he said:

"No, I would not. As I said (to) you I was very vague
on that, but I probably (had) that belief myself
through other things that might have been mentioned in
that particular point in time. Because it was a fair
while ago, and as I said, you know, when you are
dealing with a thousand contracts over a period of
time, you know, you do not know every individual item."

Blom was familiar with the provisions of the exemption in sub-item 119(1) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935. He had read it, but the only adviser with whom he had discussed it was Sudbury of Nelson Wheeler in 1986. Asked why he thought charter fishing was covered by the exemption, he referred to his own experience with the practice of the Taxation Office in relation to similar vessels in previous years.
The Sales Tax Audit

13. In 1988, the Australian Taxation Office ("ATO") undertook an audit of PMH in relation to its liability for sales tax on vessels built and sold since at least 1985. The precise scope of the audit did not emerge, although it was said to relate to boats for which an exemption from sales tax had been wrongly claimed. It was conducted principally by Michael Wong of the ATO. PMH engaged Messrs. Michael Munro and Russell Maynard of Arthur Andersen and Co. to advise and assist it in connection with the audit. Also involved was Michael Atkinson, an accountant employed as the company's financial controller from May 1988 to September 1989. On 28 September 1988 a list of 25 vessels in contention was prepared by Barry Giles, who was then contract manager for PMH. The list included an estimate of the likely sales tax and additional tax if they were to be payable on each sale. The maximum projected liability on this basis was in excess of $1 million. Michael Munro of Arthur Andersen and Co. had the task of contacting the owners of the various boats to determine the uses to which they had been put after purchase with a view to deciding whether or not they were properly within the exemption for which sub-item 119(1) of the Sales Tax (Exemptions and Classifications) Act 1935 provides. He spoke to Donald McCloy in relation to the Condor, designated as vessel 711. McCloy told him that it had initially been used as a tender boat for the Heart of America Syndicate and to tow its yacht to and from the race area. This use had lasted for a period of about 3 months. In September 1987 it was sent to Cairns where it was used for fishing and business trips off the Barrier Reef. These trips, it was said, were fairly irregular and no regular or scheduled trips were undertaken. McCloy told him that the boat was not used for any pleasure or private purpose. The exemption claimed under sub-item 119(1) was based upon advice from McCloy's accountants. He told Munro he would send him a copy of the advice, but no such copy was ever received.

14. Munro prepared a memorandum dated 17 November 1988 setting out a summary of his inquiries. On 5 December, Maynard and Munro tendered a summary of their work and their discussions with the Australian Taxation office. They put the various transactions under inquiry into three classes:

(a) Where a strong case for exemption was indicated.
(b) Where there was insufficient information to determine
whether an exemption would apply.
(c) Where it seemed unlikely that sales tax exemption would apply.

The McCloy boat was in the third class. Following a summary of the information provided to Munro by McCloy the memorandum went on:

"Accordingly the exemption claimed under Item 119 is
unlikely to apply based on the above use of the vessel."

The memorandum then continued:

"With respect to those vessels upon which a sales tax
liability clearly arises we suggest that Precision
Marine consider lodging a supplementary sales tax
return and pay the outstanding sales tax assessed.
After lodging the supplementary return Precision
Marine can then consider invoicing the purchasers of
those vessels in question to seek recovery of the
amount of sales tax payable."

And further:

"By conceding the sales tax liability on those vessels
where it is clear that a liability exists then the ATO
will be open to negotiation on the other vessels.
With respect to those vessels upon which it is still
not clear as to whether a sales tax liability exists
we may be given more time to resolve the matter. This
would avoid the issue of an assessment being raised by
the ATO for all amounts of sales tax outstanding. The
issue of an assessment by the Taxation Office will
result in additional time and costs in resolving the
matter and as the amount involved will become due and
payable prior to the objection/appeal process being
exhausted this may have adverse cash flow
consequences. We suggest that settlement of the above
matter by negotiation with the Taxation Office may be
the most favourable alternative, provided the ATO in
fact proceed on the basis indicated."

15. According to Blom, he approached Wong on what he described as a "without prejudice" basis and took him to lunch "to arrange a commercial settlement and reduce the fine to Precision Marine". He formed the opinion that Wong had a budgeted figure of what tax to collect from PMH and saw it as his task to reduce that figure. The "bottom line" he said, "really was that they wanted half a million dollars from Precision Marine". He went through the list of boats in contention and conceded that tax should be paid on some of them which he and Wong identified between themselves. He said he did not necessarily have regard to the advice from Arthur Andersen and Co. in the selection he made. In the course of the discussion, Blom conceded that tax was payable in respect of the DFM vessel. Asked why he made the concession to the ATO, he said in his evidence-in-chief that it was "probably just to round the figures up". When he had authorised the refund of sales tax in 1986 he had done so in the belief that the boat was exempt. In answer to a question from the Court, he said that he had not changed his mind about its tax exempt status when he conceded liability:

"It was really a matter of going down through the list
with the Tax Office and saying yes, no, yes, no, yes,
no - a bit of an agreement on: yes, we will allow this
one, and: no."

However, in a memorandum of 19 December 1988 to Atkinson directing the lodgment of a supplementary return in respect of the conceded transactions, he said of the DFM boat that:

"For some unknown reason best known to previous
management, sales tax was paid on this vessel and
subsequently refunded to the client a couple of months
later.
Mr McCloy enjoys leisurely fishing aboard this vessel,
and again, by his own admission to the ATO, the vessel
is not on scheduled runs and is not in line for any
exemption claim. However, an indemnity was given to
us by this client which the Tax Department now wants
us to enforce."

This part of the memorandum was largely self-protective. He accepted in cross-examination that he was covering his own position as the person who had made the decision to refund sales tax to DFM, and that there was no indemnity in the McCloy contract. It is evident that Blom's credibility has to be treated with caution. I accept, however, that there was probably an element of bargaining in his discussions with Wong and that he was concerned to contain the total sales tax liability of his company to a manageable level, rather than to give any close consideration to the position under individual transactions. Having said that, and despite his disclaimer to the contrary, I think it quite likely that the advice from Arthur Andersen and Co. was a factor influencing him to make the concession that PMH was liable to pay sales tax on the McCloy transaction.

16. A Supplementary Sales Tax Return, disclosing a total liability for sales tax of $523,507, was lodged on 16 January 1989. On 15 March 1989, an assessment for additional tax of $108,680.44 issued. The total liability as assessed was $627,982.84, a sum which reflects a discrepancy of $795.40 between the amount shown on the return and the primary liability as assessed. There was no direct evidence of whether, and if so how, the additional tax had been allocated to individual transactions. It is likely that it was assessed globally and by reference to the total primary liability. On 17 April, Atkinson wrote to the ATO requesting an extension of time to pay and offering to make a payment of $300,000 at the end of June 1989 and the balance in August. The proposal was accepted, as evidenced by a reply from the ATO on 17 May. Payments of $300,000 and $327,982.84 were made pursuant to the arrangement.
The Pleaded Case

17. By its further amended statement of claim, PMH pleaded the agreement of 10 December 1985, the construction and delivery of the vessel to DFM and the inclusion of sales tax in the purchase price. All of these facts were admitted. Payment of the purchase price of $658,687 was also pleaded. The refund of that portion of the price of the vessel attributable to sales tax was alleged, although it was said to have been in the amount of $94,411.80 whereas the evidence indicated a payment of $91,484.

18. It was alleged that between 23 October 1986 and 14 November 1986, DFM made certain express representations to PMH, they being:

(a) That the sale of the vessel by PMH to DFM was exempt from
sales tax pursuant to the provisions of Item 119(1) of
the First Schedule to the Sales Tax (Exemptions and
Classifications) Act 1935.
(b) The vessel was intended to be used for business purposes
only.
(c) The sale of the vessel was exempt from sales tax.

The latter representation was said to have been made in the letter of 22 October 1986 from DFM to PMH. The other representations were allegedly made to PMH by delivery to it of a copy of the letter from DFM to the Commissioner of Taxation dated 13 November 1986.

19. Further implied representations were said to have been made by DFM between 23 October and 14 November that:

(a) The vessel was intended not to be used principally or
exclusively for purposes of pleasure, sport, recreation,
private transport or accommodation whether by the owner
or some other person or persons.
(b) The second letter constituted a certificate of exemption
sufficient to satisfy the Commissioner of Taxation that
the sale of the vessel was exempt from sales tax.
(c) The vessel would be used for business purposes only,
whether by the owner or some other person or persons.
(d) The vessel would not be used principally or exclusively
for purposes of pleasure, sport, recreation, private
transport or accommodation, whether by the owner or some
other person or persons.
(e) The use of the vessel by DFM or some other person or
persons for business purposes was sufficient to entitle
the sale of the vessel to exemption from sales tax under
Item 119(1) of the First Schedule to the Sales Tax
(Exemptions and Classifications) Act 1935.

The implications were founded upon the terms of the two letters, and DFM's conduct in forwarding the second letter to PMH and in demanding a refund of sales tax. It was also alleged that Mr Donald McCloy represented that DFM had obtained a ruling from the Commissioner of Taxation that the sale was exempt from sales tax. As to this, I have already noted that there was no reliable evidence of the alleged representation.

20. The pleaded representations were said to have been false, and it was alleged that DFM did not have reasonable grounds for saying that the vessel would be used for business purposes only and that it would not be used principally or exclusively for purposes of pleasure, sport, recreation, private transport or accommodation. The conduct of DFM in making the representations was said to have been misleading or deceptive, in contravention of s.52 of the Trade Practices Act 1974, and to have induced a refund of that part of the price of the vessel attributed to sales tax. The ultimate liability of PMH to pay the tax and the assessment of additional tax was also pleaded. Of the latter, some $21,210.32 is said to have been attributed to the McCloy vessel. PMH's payment to the Commissioner for the sales tax plus additional tax was also pleaded. The amount of primary tax attributed to the McCloy vessel was $94,411, which together with the additional tax made a total of $115,622.12. Damages and interest are claimed under s.82 of the Trade Practices Act 1974 against both DFM and Mr Donald McCloy. The latter is said to have been knowingly involved "in the contravention of the Act".

21. An alternative plea based on contract was not pursued at trial. A further alternative plea, which was pursued, was that PMH refunded the sales tax component of the purchase price to DFM under a mistake. Although the pleading covered mistakes of fact and law, the case as conducted reduced to the contention that the payment was made under a mistake of law, and reliance was placed on s.124 of the Property Law Act (WA).
The Applicability of Sales Tax Exemptions

22. The exemption for which sub-item 119(1) provides is conditional. It applies to "ships and other vessels" subject to the condition that they are not "to be used exclusively or principally" for specified purposes. The purposes are expressed disjunctively, so that if the vessel is "to be used exclusively or principally" for any of them the exemption will not apply. Whether a vessel is "to be used for" a disqualifying purpose is determined at the time of the transaction upon which the liability for sales tax, if any, depends. In this case the relevant transaction was the sale by PMH to DFM, which was the last wholesale sale - Commissioner of Taxation (SA) v Ellis and Clark Ltd [1934] HCA 54; (1934) 52 CLR 85 at 89 (Dixon J). There does not appear to be any reported authority directly on the operation of the words "to be used for" in this context, but the analogous collocation "for use in" has been judicially considered. In Deputy Commissioner of Taxation v Lincoln Industrial Cleaners Pty Ltd (1975) 2 NSWLR 499, Sheppard J held that a carpet cleaning powder with insecticidal properties was within the class of goods exempted from sales tax by item 139 of the First Schedule relating to "preparation and materials for use in the destruction of insect pests". His Honour accepted the submission of the Commissioner that the words "for use in" are intended to denote "some quality apparent in the article itself to persons who know its character which shows that it is specially fit for the particular purpose specified rather than for any other". He rejected the alternative propositions that the purpose of the ultimate purchaser or the manufacturer at the time of manufacture was determinative. Given that the tax is imposed on the last wholesale sale it would be difficult to tie liability to the purchaser's purpose. His Honour went on at p 121:

"It is perhaps not so difficult to approach it upon the
basis of what the manufacturer's purpose was in
manufacturing the article, but I think the third
interpretation of this kind overcomes such problems as
looking at purposes or intentions of users or
manufacturers poses and commits one to look at the
problem more objectively."

23. The Supreme Court of Victoria later commented that it appeared to have made no difference in that case which of the three interpretations was applied. In Federal Commissioner of Taxation v Hamersley Iron Pty Ltd (1981) 37 ALR 595 the question was whether parts purchased by the operator of iron ore mines, for equipment used to mix different types of ore, were "... for use in the mining industry in carrying out mining operations and in the treatment of the products of those operations". A recognition of the relevance of the purposes of manufacturer and purchaser was evident in the judgment of Lush J (Kaye and Brooking JJ. agreeing) at 605:

"The machines in question in this case were intended to
perform, built to the respondent's order to perform,
and did perform particular operations in a continuing
process. The expression 'for use in' is purposive,
and this conjunction of facts, all relevant to
purpose, leads to the conclusion that, if the
operations of the machines constituted in a
significant degree 'treatment', the machines and parts
were 'for use in treatment'."

In Deputy Commissioner of Taxation v Stewart [1984] HCA 11; (1984) 154 CLR 385 the question was whether lottery ticket vending machines which were supplied free of charge, but on a non-exclusive basis, to public benevolent institutions were exempt under item 81(1)(c) as "goods for use... and not for sale, by... a public benevolent institution". Gibbs C.J., with whom Dawson J agreed, observed at 390 that the First Schedule to the Sales Tax (Exemptions and Classifications) Act describes exempted goods in two main ways - by reference to the nature of the goods themselves and by reference to the use to which it is intended to put them:

"In many cases of the second kind the words 'for use'
indicate the purpose to which it is intended the goods
shall be put, rather than the use for which the goods
were designed".

24. It is apparent from his discussion of the facts of the case that Gibbs C.J. regarded the intention of the manufacturer as relevant. Brennan J referred to the intentions of both the manufacturer and the relevant institutions in deciding that the goods fell within the exemption (at 398). Deane J at 401 noted that, in those items where it is required that goods be "for use by" a particular organisation, there is no designation of any person, such as the manufacturer or the purchaser of the goods, by reference to whose purposes or intentions the question whether the relevant requirement is satisfied must be determined:

"While the subjective intentions of manufacturer or
purchaser are relevant and may well be conclusive,
what is required is an objective characterization of
the goods themselves in the light of all the relevant
circumstances. That characterisation must be made as
at the time when liability for sales tax would
otherwise attach. It will, in an appropriate case, be
made with the benefit and in the context of knowledge
of the actual use which was subsequently made of the goods."

25. The dicta cited from these three cases do not yield any clear test for deciding whether goods are made "for use in" a particular way. There are, as Sheppard J pointed out, difficulties in using the intentions of the ultimate purchaser as the criteria. And there is an evident reluctance to tie the question of liability to the subjective intention of the manufacturer. The approach explicitly adopted by Deane J requires some "objective characterisation" of the goods. I take this to mean that characterisation of goods by reference to their purpose or intended use depends upon the view taken by an independent observer having regard to the intrinsic characteristics of the goods (which could be evidence, but not elements, of their purpose), the intention of the manufacturer, and that of the person, if any, for whom the goods are manufactured. This may reduce logically to the imputation of intention or purpose to the manufacturer, for neither can be divorced from some human agency. But that process does not require a judgment based solely upon the manufacturer's subjective intentions. These observations must be subject to the caveat that each item in the First Schedule is to be read according to its own language and that the application of purposive terms in different contexts may differ. But the general approach adopted by Deane J is, in my respectful opinion, the proper one to be taken to the application of the purposive words "to be used for" in the disqualifying condition upon the exemption in item 119.

26. In this case the written agreement indicates that both PMH the manufacturer, and DFM the purchaser, were contemplating the construction and sale of a vessel designed for game fishing purposes. Its general configuration, as appeared from a sketch in evidence, was consistent with that purpose. The charter fishing uses contemplated by the purchaser were disclosed to the manufacturer prior to sale. Applying the objective test to which I have referred, it is clear on the evidence that at the point of sale in August 1986 the vessel was "to be used for" the purposes of pleasure, sport and recreation. The fact that these purposes related to its use under charter arrangements by persons other than the owner does not affect the application of the disqualifying condition. In my opinion the exemption under sub-item 119(1) did not apply to the sale of the Condor, and PMH was liable to pay sales tax on it.

27. The certificate dated 13 November 1986 provided by DFM of itself had no legal effect. The provision of so called certificates of conditional exemption reflects administrative procedures developed by the ATO whereby persons claiming exemption on the basis that goods are for use in exempt circumstances provide certificates to the supplier as evidence that the goods have been sold for exempt use. The purpose of the certificates and the procedures relating to their use are set out in Sales Tax Ruling 2442, issued by the Commissioner of Taxation on 6 October 1988. While that ruling was issued after the events in question in this case, it did not purport to be breaking new ground, and the general purpose of the certificate issued by DFM was consistent with the purpose of such certificates generally.
The Cause of Action in Misleading or Deceptive Conduct

28. It is apparent from the factual history already set out that while the boat was under construction Blom was told by members of the McCloy family on behalf of DFM that:

1. They intended that it would initially be chartered for
use by one of the syndicates participating in the
America's Cup Challenge races off Fremantle in the latter
part of 1986.
2. After the America's Cup races concluded, the vessel would
be used for chartered fishing operations of a sporting or
recreational character. This was consistent with the
description of the boat in the written agreement of 10
December 1985 as a "...17 metre Off Shore Gamefishing
Charter Vessel" (emphasis added).

No representation was pleaded that the vessel would be used for scheduled transport or sightseeing runs. Notwithstanding Blom's evidence to that effect, I am not satisfied that any such representation was made. The statement in the letter of 13 November 1986 from DFM to the Commissioner of Taxation that the vessel was to be used "for business purposes only" was consistent with its proposed principal use as a commercial charter vessel for fishing, sporting or recreational purposes. There is nothing to suggest that the statements made by the controllers of DFM relating to their intended uses of the boat were other than true statements of their intentions. Nor is there anything to suggest that the boat was used other than in accordance with those statements. So far as the factual representations are concerned, there is no evidence of misleading or deceptive conduct. I accept however that Blom was told orally that, on advice received, DFM did not regard the transaction as subject to sales tax and that this opinion was restated in the conditional exemption certificate of 13 November 1986. I am also satisfied that PMH was in law liable to pay the tax. DFM had correctly stated the intended use of the vessel but wrongly asserted that there was no liability to sales tax. The question is whether that representation constituted misleading or deceptive conduct in contravention of s.52 of the Trade Practices Act.

2930. It is said to be a general rule of the common law that misrepresentation on a matter of law is not a ground for relief because the law is presumed to be equally within the knowledge of all the parties. Nor does the principle of relief in equity on the ground of misrepresentation extend to an innocent statement of the law - Kerr on Fraud and Mistake, Seventh Edition pp 39 and 40. In the Third Edition of Spencer Bower and Turner's Actionable Misrepresentation the distinction is drawn between statements of mixed and indivisible law and fact on the one hand and statements of inference of law from given or known facts on the other. It is the latter class into which this case falls and of which the learned author, Sir Alexander Turner, said at para.41:

"In contrast to the above is the class of case where
the facts either (a) being separately stated or (b)
being known to the parties, the representor cannot be
thought to make any representation as to them, and his
representation must be taken as no more than his
opinion as to the legal incidents of those facts, and
the proper legal inference to be drawn from them. In
such cases the matter asserted is only a matter of
opinion on law, and what has been said is no more than
a representation of the fact that the person to whom
the opinion is attributed actually holds it."

The application of a statute to known facts is a particular case of that category. Where there is no more than a statement of the result obtained by applying the provisions of the statute to the circumstances of the particular case, there is no representation of fact - Territorial and Auxiliary Forces Association of the County of London v. Nichols (1949) 1 KB 35 at 50. Fraud, breach of fiduciary duty and unconscionable conduct generally may create grounds for legal or equitable relief where these elements are also present - Harse v. Pearl Life Assurance Co. Ltd (1904) 1 KB 558; Phillips v. Royal London Mutual Insurance Co. Ltd (1911) 105 LT 136 at 137. As to the possibility that estoppel by conduct supporting a cause of action may arise out of a misstatement of law see Foran v. Wight [1989] HCA 51; (1989) 168 CLR 385 at 435 per Deane J. But the basic principle is reflected in the judgment of Wood V.C. in Rashdall v. Ward (1866) LR Eq 750 in which the Reverend Ra.shdall sued company directors for representing wrongly that their company had power to issue a bond:

"There is no attempt to allege fraud or any misleading
of an ignorant man. The case is that of two persons
of equal knowledge and intelligence. They meet and
make a bargain. The Plaintiff alleges a
misrepresentation of a matter of law, and that under
the circumstances he advanced money to people who were
unable to borrow from him - a case extremely analogous
to that of payment made by a man in alleged ignorance
of the law. It seems to me impossible to extend the
principle of relief arising out of misrepresentation,
to a statement of law which turns out to be an
incorrect statement." (at 754)

And in Beattie v. Lord Ebury (1872) LR Ch App 777, another case involving misrepresentation of company powers, Mellish L.J. opined that "anybody would be startled if it was said that if you asked somebody what was the law on a particular point, and he gave you his opinion as to what the law was, and you acted upon it and altered your position, a bill could be maintained against him to make good the representation if his opinion turned out to be wrong" - see also Eaglesfield v. Marquis of Londonderry (1876) 4 Ch D 693 and the pragmatic observation of Bowen L.J. in the Court of Appeal in West London Commercial Bank v. Kitson (1884) 13 QBD 360 at 362 that:

"Where there is a representation made as to a mere
matter of law it is, in nineteen cases out of twenty,
made by a person who does not know the law better than
the person to whom it is made, and at whose risk it is
taken and acted upon."

This was subject to the qualification that it was doubtful whether equity would allow a person to retain a benefit obtained by wilful misrepresentation of the law. The general position was restated in New Zealand by Sim A.C.J. in Oudaille v. Lawson (1922) NZLR 259 at 261:

"The rule is that if a person innocently makes an
incorrect statement with regard to the general law,
that does not give any right to relief...but it is
otherwise if the statement is made with the knowledge
that it is incorrect, for that is fraud... In any
event, however, if a person states his opinion as to
the legal position, and in truth it is not his real
opinion, that is a misrepresentation of fact, and
subject to the ordinary rules on the subject..."

There is in this case no fraud, no breach of fiduciary duty and no oppressive conduct. The parties were in pari delicto. There was no cause of action at common law and no relief available in equity arising out of the misrepresentation.

30. The question remains, has there been a contravention of s.52? The section prohibits corporations from engaging in trade or commerce in conduct which is misleading or deceptive or likely to mislead or deceive. Given that there was no misstatement of fact, the conduct relied upon reduces to the making of the proposition of law implied in the oral statement to Blom and the certificate of 13 November 1986. The generality of s.52 does not support any implied limitation that would exclude from its operation conduct inducing error of law. An early case in which relief was granted to restrain misstatements by a party of its "lawful entitlement" was Trade Practices Commission v. Lamova Publishing Corp. Pty Ltd (1979) 28 ALR 416, although on the distinction developed at common law that might have been seen as a misrepresentation of fact. Section 53, which has narrower application and attracts pecuniary penalties, prohibits, in para.(g), the making of false or misleading representations concerning the existence or exclusion or effect of any condition, warranty, guarantee, right or remedy. And while conduct contravening that paragraph may involve false or misleading representations of fact or mixed fact and law, it is also capable of application to misrepresentations of law simpliciter. Section 53A prohibits false or misleading representations concerning, inter alia, the use to which land which is for sale "is capable of being put or may lawfully be put". In so doing it embraces representations which may involve or reduce to propositions of law - Benlist Pty Ltd v. Olivetti Australia Pty Ltd (1990) ATPR 40-043 at 51,589 (Burchett J.). In S.W.F. Hoists and Industrial Equipment Pty Ltd v. State Government Insurance Commission (1990) ATPR 41-045, an employer sued the State Government Insurance Commission under the Trade Practices Act for incorrect advice that its workers compensation insurance cover would extend to employees injured during work interstate. At 51,607 Von Doussa J. considered a submission that the Commission's advice had been on a question of law and did not amount to an actionable misrepresentation. He held that the representations made were on matters of fact concerning the content of the package of insurances under offer to the applicant. His Honour found in the alternative that the representations were statements as to the private rights of the employer, depending on the application to its business of the law relating to workers compensation and the meaning of the Commission's policies. As such, they amounted to representations of fact - MacKenzie v. Royal Bank of Canada (1934) AC 468 at 474-475 and West London Commercial Bank v. Kitson (1884) 13 QBD 360 at 363 per Bowen LJ. And he went further, referring to the broad range of "conduct" covered by s.52, as discussed by the Full Court in Henjo Investments Pty Ltd v. Collins Marrickville Pty Ltd [1988] FCA 40; (1988) 79 ALR 83, and said at 51,608:

"As the respondent held itself out as an expert in
matters of insurance, and actually gave advice in
relation to the position in Queensland, in my opinion
the oral and written statements of the respondent
would amount to conduct that was misleading or
deceptive or likely to mislead and deceive within the
meaning of s.52 even if the statements are correctly
to be characterised as statements of law."

31. A representation of law may be made in different ways which send different messages to the recipient. It may do no more than convey what is, on the face of it, the untutored opinion of the representor. As such it would be unlikely, if wrong, to constitute misleading or deceptive conduct. If the represented opinion were not in fact held by the representor, then that would be a misrepresentation of fact and able to be characterised as misleading or deceptive conduct. It is on that basis also that a fraudulent misstatement of law may be actionable. Expert advice as to the law may convey the representation that it is based upon an underlying body of knowledge, experience or expertise possessed by the person proffering it or to which that person has access. The situations in which advice, expert or otherwise, as to the law may be misleading or deceptive for the purposes of s.52 will depend upon the context and circumstances in which it is proffered and the representations implied or expressed that accompany it. For present purposes, DFM's assertion that the transaction did not attract sales tax was presented as an opinion based upon unspecified advice. There was nothing to suggest that the opinion was not honestly held or that the advice had not been given. And the fact is that it coincided with Blom's own view of the position although that view was, as it turned out, erroneous. The case can properly be characterised as one in which one party has done no more than express an opinion embodied in a contention of law on known facts. Although the opinion was incorrect, the conduct was not misleading or deceptive, and it was not misleading or deceptive for essentially the same reason that it would not have been actionable at common law. That reason was as expressed in the passage cited earlier from Spencer Bower and Turner that:

"In such cases the matter asserted is only a matter of
opinion on law, and what has been said is no more than
a representation of the fact that the person to whom
the opinion is attributed actually holds it."

This analysis was recently repeated in the context of estoppel by conduct by Deane J. in Foran v. Wight [1989] HCA 51; (1989) 168 CLR 385 at 435. His Honour there saw no valid reason why the doctrine of estoppel by conduct should not apply to a representation relating to the state of the law. But at 436 he said:

"...a representation of future fact and a
representation of law will often, upon analysis,
involve no more, for the purposes of the doctrine of
estoppel by conduct, than a representation of present
opinion. In a case where that is so, any estoppel
founded upon the representation will ordinarily be of
no use to the representee since it will extend no
further than precluding a denial that the represented
opinion was truly held (cf Waltons Stores ((1988) 164
CLR at p 451))."

And on the basis that what was represented in this case was no more than an opinion on advice and that advice had been received, I am of the view that there was no misleading or deceptive conduct on the part of DFM and that the claim in that respect must fail.
Cause of Action for Money Had and Received Under a Mistake of Law

32. PMH contends that the sum of $91,484 paid to DFM was paid under a mistake of law. I accept as a matter of fact that the payment was made under the influence of the erroneous belief held by Blom and attributable to PMH that it would not be liable to pay sales tax on the sale of the Condor to DFM. The question is whether that payment can now be recovered. Payments made under a mistake of law have generally been treated at both law and equity as irrecoverable since Bilbie v. Lumley (1802) 2 East 469. Lord Ellenborough C.J. in that case was reported to have asked Mr Wood, later Baron Wood, counsel for the plaintiff, on an action for money had and received under a mistake of law "whether he could state any case where if a party paid money to another voluntarily with a full knowledge of all the facts of the case he could recover it back on account of his ignorance of the law". No answer being given, his Lordship went on to make the statement of law later, but too late, widely regarded as being wrong, that:

"Every man must be taken to be cognizant of the law;
otherwise there is no saying to what extent the excuse
of ignorance might be not carried. It would be urged
in almost every case."

Apart from the obvious applicability of the floodgates proposition to actions for money had and received under a mistake of fact, the judgment was said to be a misapplication of the maxim "ignorantia juris non excusat" which was limited to excluding ignorance of law as a defence in cases of wrongful or criminal conduct - Lansdown v. Lansdown (1730) Mos364[1730] EngR 288; , 25 ER 441; Brisbane v. Dacres [1813] EngR 486; (1813) 5 Taunt 143, 128 ER 641 at 647 per Chambre J. (dissenting). But the triumph of authority was manifest in the judgment of Mansfield C.J. in the latter case, who accepted the proposition emerging from Bilbie v. Lumley with the observation that:

"Certainly it was not argued, but it is a most positive
decision; and the counsel was certainly a most
experienced advocate, and not disposed to abandon
tenable points."

Despite its doubtful foundations, the authority of Bilbie v. Lumley is entrenched. Whether it was as historically anomalous as has been claimed was doubted in Goff and Jones - The Law of Restitution Third Edition, p 118 n.5. But equity, and the slipperiness of the distinction between law and fact, supplied qualifications to mitigate its injustice. Where there is fraud, compulsion, breach of fiduciary duty or some other ground for equitable relief so that payer and payee are not in pari delicto, the fact that money was paid under a mistake of law will not prevent its recovery. Curial containment of the rule is reflected in the statement of Lord Denning delivering the judgment of the Privy Council in Kiriri Cotton Co. Pty Ltd v. Dewani (1960) AC 192 at 204:

"The true proposition is that money paid under a
mistake of law, by itself and without more, cannot be
recovered back."
(emphasis added)

33. The rule has spread throughout the common law world and forms part of the common law in Australia - e.g. Werrin v. The Commonwealth [1938] HCA 3; (1938) 59 CLR 150; York Air Conditioning and Refrigeration (A/Asia) Pty Ltd v. Commonwealth [1949] HCA 23; (1949) 80 CLR 11; Mason v. New South Wales [1959] HCA 5; (1959) 102 CLR 108. The statement from the passage in the judgment of the Privy Council in Kiriri Cotton Co. Pty Ltd v. Dewani (supra) was approved by the Full Court of the Federal Court in J. and S. Holdings Pty Ltd v. NRMA Insurance Ltd [1982] FCA 78; (1982) 61 FLR 108 at 123. And more recently in David Securities Pty Ltd v. The Commonwealth (1990) 23 FCR 1 the Full Court said at 35:

"...in our view, in this Court it should be accepted
that it is open only to the High Court to remove the
distinction between fact and law in respect of common
law claims for money paid under mistake."

The decision in that case is presently under appeal to the High Court, special leave having been granted on 12 October 1990 on the question whether the Full Court erred in holding that the applicants were precluded from recovering payments made because they were made under a mistake of law.

34. The rule was recently overturned judicially in Canada - Air Canada v. Queen in Right of British Columbia (1989) 59 DLR (4th) 161 - and has been the subject of law reform initiatives in various jurisdictions for more than a century. Limited legislative change was introduced as part of the Field Code in California in 1872 and followed in some other States of the United States, but its interpretation has been restrictive - Goff and Jones (supra) p 118 n.9. In 1942 the Law Revision Commission of the State of New York concluded that the "arbitrary rule distinguishing between mistake of fact and mistake of law with the resulting denial of relief when the mistake is one of law, has no sound basis and should be abrogated". Its recommendation led to the introduction into the New York Civil Code of s.3005:

"When relief against a mistake is sought in an action
or by way of counterclaim, relief shall not be denied
merely because the mistake was one of law rather than
one of fact."

However, the section was interpreted by the New York Court of Appeals in such a way that mistakes of law were not placed "in all respects on a parity with mistakes of fact" - Mercury Machines Importing Corporation v. City of New York (1957) 144 NE 2d 400. In 1958 New Zealand enacted the Judicature Amendment Act 1958 which amended the Judicature Act 1908 by introducing ss.94A and 94B. They are in substantially the same terms as ss.124 and 125(1) of the Property Law Act 1969 (WA) which have been set out earlier. The New Zealand reform followed a recommendation of the Law Revision Committee of New Zealand, and was to some extent conceptually modelled on the New York statute. But while the New York statute extended to cases "when relief against mistake is sought in an action or by way of counterclaim", the New Zealand and Western Australian laws apply to the narrower class "where relief in respect of any payment that has been made under mistake is sought in any Court". It has been said, and I think correctly, that the section extends the action for money had and received to cases where money was received under a mistake of law. It does not appear to affect contracts entered into under a mistake - "Payments made under Mistake" - Cameron (1959) NZLJ 4.

35. Sections 124 and 125 of the Property Law Act 1969 (WA) replicated ss. 23 and 24 of the Law Reform (Property, Perpetuities and Succession) Act 1962 (WA) which had in turn copied ss.94A and 94B of the New Zealand Judicature Act, save for s.24(2) and its successor, s.125(2), which have no equivalent in the New Zealand legislation. At the present time Western Australia remains the only State of Australia in which the reform has been effected. It was recommended for South Australia in 1984 in the Eighty Fourth Report of the Law Reform Committee of South Australia Relating to the Irrecoverability of Benefits Obtained by Reason of Mistake of Law. And in July 1987 the New South Wales Law Reform Commission in its report on Restitution of Benefits Conferred Under Mistake of Law recommended the enactment of a Restitution (Mistake of Law) Bill with provisions differing somewhat from those enacted in Western Australia and recommended in South Australia. Neither South Australia nor New South Wales has yet enacted legislation in accordance with the proposed reforms.

36. As the law in Western Australia presently stands, the money paid by PMH to DFM is recoverable as a payment made under mistake, if at all, only by virtue of the operation of s.124 of the Property Law Act 1969 (WA), displacing the rule in Bilbie v. Lumley. The section has been the subject of consideration in only one reported authority which in fact related to its predecessor, s.23 of the Law Reform (Property Perpetuities and Succession) Act 1962 (WA). This was the judgment of the Full Court of the Supreme Court of Western Australian and Negus J. at first instance in Bell Bros. Pty Ltd v. Shire of Serpentine-Jarrahdale (1969) WAR 104 and 155. But the judgments in that case, which concerned payments made to a local authority under an invalid by-law dealt primarily with the question whether in terms of s.124(2) the law was "commonly understood" to require or allow the payments in question to be made. That issue does not arise in this case.

37. It is not clear from the evidence whether PMH's refund of the sales tax component of the purchase price paid by DFM was made on the basis that there was some relevant contractual obligation. It seems likely that it was at least an implied condition of the contract that if sales tax were not payable, so much of the purchase price as was allocated to that purpose should be refunded. Or it may have been the case that that "component" of the purchase price was, in truth, a pre-payment of sales tax repayable in the event that there was no liability. In my opinion, however, recovery is available whether or not PMH believed through Blom that it was compelled at law to make the refund. In South Australian Cold Stores Ltd v. Electricity Trust of South Australia [1957] HCA 69; (1957) 98 CLR 65, the High Court held that a payment made on a demand without any consideration by the payee of whether facts necessary to support the demand existed, was not a payment under a mistaken belief. But that view did not imply that a payment is only recoverable if made under a mistake of fact which involved a belief that there was a legal obligation to pay. At 75 in the joint judgment, it was said of the action for money had and received in cases of payment by mistake:

"Under that rule the action is available when the payee
cannot justly retain the money paid to him because it
would not have come to his hands if it had not been
for a false supposition of fact on the part of the
payer causing the latter to believe that he was
compellable to make the payment or at all events that
he ought to make it. It is to be noticed that Parke
B. in Kelly v. Solari ((1841) 9 M and W 54; [1841] EngR 1087; 152 ER 24)
defines the requisite mistake as 'the supposition that
a specific fact is true, which would entitle the other
to the money, but which fact is untrue'. According to
the decision of Pilcher J. in Turvey v. Dentons 1923
Ltd ((1953) 1 QB 218) it is too restrictive to say
that the fact would if true have entitled the payee to
the money; and perhaps the word 'specific' may also be
too definite."

And Goff and Jones in The Law of Restitution Third Edition at p 96 cite the decision of the Court of Appeal in Larner v. London County Council (1949) 2 KB 683 as authority for the proposition that "it is not necessary that the mistake should lead the payer to believe that he is legally bound to pay the money. It is enough that the payment is made not as a mere gratuity, but 'as a matter of duty'".

38. There is no reason in principle why the same basis for recovery should not be available in relation to payment made under a mistake of law. It would not matter that the payment was made in the belief, based upon the mistake of law, that there was a moral duty to pay it.

39. For these reasons the sum of $91,484 paid by PMH to DFM is recoverable, and recoverable with interest. I will fix pre-judgment interest at the rate of 14% per annum. But in my opinion that interest should be incurred only from the date at which PMH paid the first instalment of sales tax to the Australian Taxation Office, namely 1 July 1989. On that basis the interest is $20,876 and the judgment inclusive of interest is $112,360.00. There will be judgment against DFM accordingly. The action against Mr McCloy will be dismissed.