Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

While reading the recent Victorian Supreme Court case of Andrew Shelton & Co Pty Ltd v. Alpha Healthcare Ltd, I came across an eye-catching statement from Warren J:

"... in Australia it seems at this time that free acceptance is a recognised restitutionary ground".

Much of Warren J's judgment is devoted to findings of fact. The plaintiff (Shelton), contended that the defendant company was obliged to remunerate him for advisory work he had undertaken in facilitating a $30 million transaction, and which the defendant benefited from. Complications arose because:

1. Shelton and the defendant never entered into a formal contract for services; and
2. the majority of Shelton's work had not be done for the defendant, but for a related company which was not a party to the final transaction.

Warren J upheld Shelton's claim based on unjust enrichment. The unjust factor used to support Shelton's argument, was that of free acceptance.

While Shelton also initially claimed in contract, estoppel, breach of confidence and quantum meruit [sic], these were either abandoned or dismissed. Counsel appears not to have made an argument based on failure of consideration.

Only passing reference is made to the debate as to whether free acceptance should found a claim for restitution (in particular the writing of Andrew Burrows). Instead, emphasis is placed on the views of Goff & Jones and Michael Bryan, and interpretations of the Australian cases Pavey & Matthews v. Paul, Brenner and Angelopoulos.

It is also interesting to the note that Gummow J's dicta regarding the place of restitution in Australia (see Roxborough v. Rothmans), seems now to require the attention of first instance judges when reliance is placed on unjust enrichment reasoning.

The case can be found at: http://www.austlii.edu.au/au/cases/vic/VSC/2002/248.html

________________________________
Michael Rush
Magdalen College
Oxford
OX1 4AU
UNITED KINGDOM
________________________________