Restitution Discussion Group Archives
| Sender: |
Andrew Dickinson |
| Date: |
Wed, 11 Aug 1999 09:07:23 |
| Re: |
Change of Position |
This seems right
(at least to me).
CATS' defence would seem to be no stronger than the "honest
receipt" defence rejected in KB -v- Lincoln.
In effect, CATS was saying that "If you TGTL had investigated
and drawn our attention to the fact that we had not complied with the
condition for your payment, we would have made sure that our non-compliance
was corrected." Although the summary below does not give details of the
terms of the contract, I presume that there was no obligation on TGTL
to do this and, presumably, CATS was in a better position to ascertain
its completeness - indeed, somebody (CATS' agent?) must have been aware
that it was not ready. In the circumstances, CATS should be regarded has
bearing the risk that the pipeline was not ready and the monies repayable.
Andrew
-----Original Message----- From: Robert Stevens In Amoco v TGTL the Court of Appeal refused to allow
the defence of change of position to be invoked. The CATS parties built
a pipeline for gas. Before the pipeline had been built they entered
into an agreement with TGTL by which TGTL reserved part of the capacity
of the pipeline for themselves. TGTL were obliged to pay in instalments
for the capacity reserved from the commencement date, April Fool's day
1993, regardless of whether they used the pipe. The price of gas fell
sharply in 1994. TGTL wanted to get out of the deal. TGTL started paying
from 1 April 1993 but stopped at the end of September 1994 arguing that
the date for commencement had not begun. They argued that the pipeline
was not ready for use and that no monies were consequently due. Before
Langley J. this argument was rejected but the CA allowed TGTL's appeal
and ordered CATS to repay the money paid under mistake. CATS argued
change of position. If they had known that the pipeline was not ready
or if TGTL had refused to pay the instalments they would have quickly
insured that the pipeline was ready so that payments became payable.
Tuckey L.J. rejected the change of position defence
as "the change of position must relate to the receipt of money" and
that the CATS parties had merely "mistakenly believed that they had
complied with the contract when they had not." Comments anyone? ******************************************
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Sent: Wednesday, August 11, 1999 9:44 AM
To: restitution@maillist.ox.ac.uk
Subject: RDG: Change of Position
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