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My response to Nicholas Briggs (requesting arguments in support of estoppel) is that there is a need in the law of restitution for a broad, flexible defence which is not limited in its scope to identifying payments causally connected to the receipt of the mistaken payment. Whether such a broad defence is applied using estoppel principles, or by treating change of position itself as a broad equitable defence allowing for a balancing of the equities between the parties (as the NZ CA did in Bank of NZ v Waitaki [1999] 2 NZLR 211) may not be overly important (one benefit of the latter approach is that it does not require the identification of a "representation" by the payer; one benefit of estoppel is that it may be more grounded in established principle and authorities). The important thing is that the courts should take into account factors such as the following.

(1) The emotional distress and turmoil induced by a request to repay money, say, many years after its receipt. (Cf Commonwealth v Verwayen, where some members of the HC of Australia considered that the detriment suffered if a representor were not estopped from denying the representation would include the "stress and anxiety" suffered by the representee if the representation/assumption were not made good: eg Gaudron J 170 CLR 394 at 487). I would think that in Australia, at least, the estoppel defence would not necessarily operate in an all or nothing way, the courts being able to shape the remedy according to the minimum equity needed to do justice between the parties. This may mean that in some circumstances, the remedy may be limited to reversing the detriment incurred in reliance upon the representation. It does not mean, however, that the detriment suffered in consequence of the denial of the representation is necessarily limited to and measured by the financial losses incurred in reliance upon or causally connected to, the receipt of the money.

(2) Related to this point is the fact that an unqualified and authoritative representation may lead payees to hold expectations the denial of which may have detrimental consequences which can not necessarily be measured by reference to financial expenses incurred (but which detriment is more than merely the disappointment of not having one's expectation fulfilled.

(3) Any negligence of both payers and payees must also be relevant (cf Waitaki). It would be odd if in our system of law, carelessness (or "contributory negligence"?) were not a relevant consideration. The theory that even gross negligence on the part of the payer in making or insisting upon the payment is irrelevant has always struck me as counter-intuitive.

(4) Any other relevant factors, such as "risk allocation" between the parties and relative fault, need to be considered (Thomas J in Waitaki at 229). In Scottish Equity itself, the gross negligence of the payer and the unqualified representation that the payee was entitled to the payment ought to have been taken into account in balancing the equities between the parties. I for one do not think that the payee ought to be liable to repay the money used for mortgage payments in that case. At least in relation to those payments, the payee's expectations ought to be made good, for if they are not and the payee is required to repay them, I think it is accurate to say that the payee will be worse off than if the mistaken payment had never been received. There are some considerable similarities to Verwayen's case.

In relation to the point made by Robert Stevens:

However, having read the following passage [in Scottish Equitable] it seems to me that it can now be argued that the existence of the defence of change of position prevents the defendant, in the usual case, from establishing that he has detrimentally relied upon the claimant's statement:

'A pays £1000 to B, representing to him "I have carefully checked all the figures and this is all yours". B spends £250 on a party and puts £750 in the bank. A discovers that he has made a mistake and owed B nothing. He learns that B has spent £250 and he asks B to repay £750.

B: "You are estopped by your representation on which I have acted to my detriment."

A: "You have not acted to your detriment. You have had a good party, and at my expense, because I cannot recover the £250 back from you."'