Full Court Minute Books

Case S163/2013

Australian Financial Services and Leasing Pty Limited v. Hills Industries Limited and Anor

Case No.


Case Information

Lower Court Judgment

4/12/2012 Supreme Court of New South Wales (Court of Appeal) (Bathurst CJ, Allsop P, Meagher JA)

[2012] NSWCA 380


Equity – Restitution – “Change of position” defence – AFSL paid money to Hills and another company to enable a third party to purchase certain equipment from Hills and the other company and then lease that equipment to the third party – The third party fabricated documents and contrary to AFSL’s belief no equipment was acquired – AFSL commenced proceedings in restitution against Hills and the other company – Trial Judge found for AFSL on basis that Hills gave no consideration for monies received from AFSL and Hills had not suffered detriment arising out of a speculative change of its position after receiving those monies – Decision reversed on appeal – Court of Appeal held that by discharging debts owed to Hills by the third party Hills had given up opportunity to enforce payment of those debts – Whether defence of “change of position” in claims for money paid to third party by financier under mistake of fact extends to this situation – Whether in order to make out defence of change of position defendant is required to point to specific and quantifiable expenditure or financial loss because of mistaken payment?

Short Particulars


16/08/2013 Hearing (SLA, Sydney)

30/08/2013 Notice of appeal

20/09/2013 Written submissions (Appellant)

20/09/2013 Chronology (Appellant)

11/10/2013 Written submissions (First Respondent)

18/10/2013 Written submissions (Second Respondent)

01/11/2013 Reply

11/02/2014 Hearing (Full Court, Canberra) (Audio-visual recording)

07/05/2014 Judgment  (Judgment summary)