I entirely agree that "windfall" is generally a loaded and unhelpful term, but I couldn't think of any better way to express the concept.

However, I do think it's interesting that the judge did not go into the precise detail of what Ms K spent the money on - perhaps this reflects the fact it was an appeal from a magistrate. I can't help comparing it with Gertsch v Atsas where the judge went into more detail about what were reversible expenses or not. I always felt rather sorry for the third defendant in Gertsch, to be honest; she genuinely thought she was a beneficiary under the forged will under which she received a legacy. The forger of the will included a legacy for her and the second defendant (both innocent of any fraud whatsoever) to conceal the fact that he had forged it for his own benefit. I suppose that the genuine legatee under the intestacy also had a legitimate interest in the money, but I still felt sorry for her.

Kind regards, Katy
________________________________________
From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@LISTS.MCGILL.CA] on behalf of uctlcm2 [charles.mitchell@UCL.AC.UK]
Sent: Monday, October 10, 2011 7:49 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] Victorian case on restitution and change of position defence

I think that 'windfall' is rather a loaded word. Defendants always get a
'windfall' in COP cases, to the extent that the defence enables them to
enjoy the expenditure of value to which ex hypothesi they were not
entitled.

If Ms K spent the 'surplus' $24,000 on things that she would not otherwise
have spent money on - including generalised lifestyle changes - then the
defence would absolve her of liability to make restitution, and it makes
no difference whether this is money that she would or would not have
received from the agency.

For what it's worth, incidentally, I completely agree with Jamie and Elise
- and with the judge in this case - that the disapplication of estoppel
argument that Robert Walker LJ liked in Scottish Equitable was
misconceived. It is a matter for a defendant to decide which defences she
wants to rely on, and it doesn't follow from the fact that she could
invoke the change of position defence if she wants to that she *must*
invoke it, and *must* therefore be disabled from invoking the defence of
estoppel instead.

Best wishes,
Charles

> Just to complicate the picture further, Jodi Gardner pointed out to me
> that what Ms K would have gotten from her employer was vastly more than
> the amount Centrelink would have been obligated to pay her. She said that
> basic Centrelink benefits are ~$250 per week, whereas it appears that Ms
> Kebakoska was earning over $2,000 a week from her position ($27,300 over
> 12 weeks). So even if the employer sued Centrelink, Centrelink could argue
> that its obligation was vastly less than the mistaken obligation of the
> employer, and accordingly, the amount about which Centrelink was mistaken
> was only ~$3000, which doesn't really cut the mustard as far as the
> employer is concerned. So effectively, Ms K got a windfall of $24,000
> which she wouldn't have received if she received unemployment benefits.
> This raises the question of whether she should have had to pay back the
> $24,000 over and above what she would have received in unemployment
> benefits? Or was her GF COP sufficient to mean she should keep it all?
>
> I note that in Gertsch v Atsas [1999], another Australian case involving
> GF COP, the NSWSC looked at what the third defendant in that case would
> have done if she had not paid off her mortgage with the mistaken will
> payment. She went and studied in reliance upon the receipt, but if she had
> not received it she would have continued working and come close to paying
> off her mortgage in any case. To the extent that she would not have paid
> off her mortgage, she was obligated to repay that amount to the true
> beneficiary under the will. Here, what would Ms K have done if she had not
> received the receipt? She would have received unemployment benefits, but
> arguably, to the extent that her redundancy payment outstripped what would
> have occurred, perhaps there should have been an obligation to restore
> that amount to the employer (if the Gertsch analysis is correct).
>
> Agree with Charles: these three party cases are a killer...particularly
> when the obligations differ according to who the party is!
>
> Cheers, Katy
> ________________________________________
> From: Enrichment - Restitution & Unjust Enrichm

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of unjust enrichment. To subscribe, send "subscribe enrichment" in
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