Dear Colleagues;
Those interested in the interaction between the equitable doctrine of subrogation, and the principles of unjust enrichment, may be interested in the recent decision of the High Court of Australia in Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009) http://www.austlii.edu.au/au/cases/cth/HCA/2009/44.html. After a decision on the issues (can someone who has guaranteed a series of mortgages over the same property, demand that on discharge of the first mortgage the first mortgagee account to the guarantor rather than to the second mortgagee for the excess on the first mortgage? Answer, yes.) the High Court took the opportunity to make it clear that it did not approve of developments in the UK linking subrogation with unjust enrichment- see paras [95] ff, explicitly disagreeing with comments of Lord Hoffman in Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221. And in case other courts in Australia had forgotten what happened in Farah v Say-Dee, they issued a reminder at [86] that in their view there is no "unifying legal concept" of unjust enrichment and that "all other Australian courts are bound accordingly."
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
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