Vesna Kebakoska was made redundant by her employer of 10 years, TRA Global. She received a severance package which included a redundancy payment of AUS$27,000 representing 12 weeks’ pay. Kebakoska reported the payment when she applied for unemployment benefits, which were denied because she had received it; she spent the money on living expenses while she was unemployed. TRA later realised it had paid Kebakoska too much, so when she sued her former employer for a foregone bonus entitlement, it counterclaimed for restitution of the mistaken payment.

The Victoria trial judge and, on appeal, the state supreme court found for Kebakoska on the grounds that her change of position after receipt of the money was a defence to the claim for unjust enrichment. Also available to her was the alternative defence of estoppel by misrepresentation: TRA could not go back on its representation as to her severance entitlement. The defence of estoppel, a complete defence to TRA’s counterclaim, was not displaced by the doctrine of change of position (some Newfoundland authority to the contrary).

TRA Global Pty Ltd v Kebakoska, [2011] VSC 480. [Link available here].