Neil,

Apologies in my previous email I meant to say that it is not open to
the payer to prove that the bribe or secret commission was not paid
with any improper motive! e.g. the payer cannot be heard to say that I
honestly believed the commission was known of and agreed to by all
concerned, to defend the claim.

Ger

On 7/17/15, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
> Dear Neil,
>
> Many thanks.
>
> The cause of action against the payer of the bribe or secret
> commission is described as an action for fraud in the authorities,
> though an action in which it is not open to the payer to prove that he
> paid the secret commission with an improper motive.
>
> See Mahesan v Malaysia Government Officers’ Cooperative Housing
> Society Ltd [1979] AC 374 at 381-3 where the law is stated, following
> a review of the previous authorities, of which the Court seems not
> entirely uncritical.
>
> Note however that the Privy Council was there dealing with a claim
> against an agent, who's fraudulent conduct was admitted.
>
> Kind regards
>
> Ger
>
> On 7/17/15, Neil Foster <neil.foster@newcastle.edu.au> wrote:
>> Dear Ger;
>> Not at all sure if this might help, but there may be some comments in Levy
>> &
>> Watt & Anor [2014] VSCA 60 (14 May 2014)
>> http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2014/60.html
>> which may assist. There the court held that in a case of conversion (a
>> strict liability tort of course) that where a thief had stolen a painting
>> but the identity of the thief was not known, that the limitation period
>> did
>> not run until the true owner knew the identity of the thief, on the basis
>> that the very act of secretly stealing something meant that the action
>> had
>> been "fraudulently concealed".
>> I am not sure what action the principal in your example may have against
>> the
>> innocent payer fooled by the dishonest agent, but if there is an action
>> it
>> is possible it would be governed by the decision here and the limitation
>> period not operate as a bar.
>> Regards
>> Neil
>>
>> NEIL FOSTER
>> Associate Professor
>> Newcastle Law School
>> Faculty of Business and Law
>> MC177 McMullin Building
>>
>> T: +61 2 49217430
>> E: neil.foster@newcastle.edu.au
>> <mailto:Firstname.Lastname@newcastle.edu.au>
>>
>> Further details: http://www.newcastle.edu.au/profile/neil-foster
>> My publications: http://works.bepress.com/neil_foster/ ,
>> http://ssrn.com/author=504828
>>
>>
>> The University of Newcastle (UoN)
>> University Drive
>> Callaghan NSW 2308
>> Australia
>>
>> CRICOS Provider 00109J
>>
>>
>> <http://www.newcastle.edu.au/>
>>
>>
>>
>>
>>
>> On 17/07/2015 6:49 am, "Gerard Sadlier"
>> <gerard.sadlier@GMAIL.COM<mailto:gerard.sadlier@GMAIL.COM>> wrote:
>>
>> Dear all,
>>
>> I'd be really grateful for any references to authorities (academic or
>> judicial) on the limitation period applicable where a claim is brought
>> against the briber (payer of secret commission) for loss caused to a
>> principle because a secret commission was paid to his agent.
>>
>> Presumably, if the secret commission was paid and received where both
>> payer and payee were acting dishonestly, the cause of action would be
>> based on
>> fraud (and the limitation period could be extended accordingly).
>>
>> However, what is the position where:
>> (i) the Commission is paid honestly, the payer honestly if wrongly
>> believing that the payment would be (perhaps had already been)
>> disclosed?
>> (ii) Is the matter different if the agent is held to have acted
>> fraudulently but the payer is not? (Is the fraudulent motive of the
>> agent attributable to the payer of the commission)?
>> (iii) If the agent's nondisclosure of the commission is held to be
>> fraudulent concealment for limitation purposes, is that state of mind
>> attributed to the payer, so that the limitation period is extended as
>> against the payer of the secret commission too?
>>
>> Many thanks
>>
>> Ger
>>
>>
>> ====
>>
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>>
>>
>>
>

====

This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.