"[1] The first respondents are liquidators of Bellpac Pty Ltd (Bellpac). They sought to recover $6 million of bonds which were transferred from Bellpac to the appellants between December 2008 and May 2009. The $6 million of bonds were transferred from Bellpac while it was insolvent. They were transferred by one of Bellpac’s directors, Mr Alfred Wong, pursuant to a power of attorney. Mr Wong transferred the bonds as part payment for his own personal debts. Those personal debts included $2 million to his brother in law (Dr Kwok), and $1 million to a man who knew that Mr Wong was “dishonest”.

[2] The appellants’ central submission before the primary judge, and on this appeal, was that the general words in the power of attorney signed by Mr Wong and another director on behalf of Bellpac, gave Mr Wong the power to transfer Bellpac assets for his own personal benefit and to the detriment of Bellpac. The primary judge rejected that submission. The appellants also argued that they could rely upon a statutory estoppel which precluded Bellpac from denying that Mr Wong had authority. The primary judge held that ss 128 and 129 of the Corporations Act 2001 (Cth) (Corporations Act) did not assist the appellants. The appellants also argued that they had a defence of bona fide purchase for value without notice. The primary judge held that they did not provide value and they were not without notice. The appellants also sought to resist an alternative case by the liquidators that the transactions were uncommercial and insolvent transactions entitling them to relief under s 588FF of the Corporations Act. The primary judge held that, if it were necessary to do so, he would have found that the liquidators were entitled to appropriate relief under s 588FF.

[3] The primary judge’s conclusions on each of these grounds should be upheld. We would dismiss the appeal."

"[68] This selection of cases illustrates the substantial authority that supports strict liability, subject to defences, for the receipt by a respondent of a company asset transferred without authority. Some of the cases were brought in equity for specific restitution of the rights transferred. Other cases were brought in equity as personal money claims for restitution. Others were brought at common law for restitution, sometimes still described as a count of money had and received in indebitatus assumpsit. The difference between whether the personal claims are described as “equitable” or as “common law claims” is not a difference of principle because although the claim for money had and received is a common law claim, it has equitable roots: Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516, 548-551 [83]-[89] (Gummow J).

[69] The two claims recognised in equity based simply upon the unauthorised receipt of a benefit from a company are (i) a personal claim for restitution of the value of the benefit and (ii) a proprietary claim for specific restitution. The personal claim has been described as being based upon unjust enrichment: Criterion Properties plc v Stratford UK Properties LLC at 1848 [4] (Lord Nicholls, quoted above). This might also be the underlying basis of the proprietary claim where the recipient obtains legal title from the company without authority: see Burrows A, The Law of Restitution (3rd ed, Oxford University Press, 2011) 432-434; Mitchell C, Mitchell P, and Watterson S, Goff and Jones’ The Law of  Unjust Enrichment  (8th ed, Sweet & Maxwell, 2011) Ch 37, 38. More than a century ago, in his lecture on the origin of uses, Professor Ames described the ethical character of specific equitable relief where pecuniary compensation is inadequate, such as a bill by a bailor for the recovery of a chattel from a defendant in possession after the death of the bailee. He explained that in these cases “the plaintiff is seeking restitution from the defendant, who is trying to enrich himself unconscionably at the expense of the plaintiff”: Ames JB, Lectures on Legal History and Miscellaneous Legal Essays (Harvard University Press, 1913) 234-235. It is unnecessary to explore those foundational issues in this case. There was no submission, for instance, that any of the appellants had any defence of change of position which would raise other issues such as whether a defence of change of position could be effected by an order that specific relief was subject to a condition: see the discussion in Häcker B, Consequences of Impaired Consent Transfers (Mohr Siebeck Tübingen, 2009) 155-156 and Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538."