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The Privy Council has reversed the NZCA's decision in Waikato Regional Airport Ltd v A-G [2002] 3 NZLR 433 and restored Wild J's decision at first instance [2001] 2 NZLR 670. Lord Nicholls' speech contains some rather inconclusive discussions of passing on and the Air Canada 'serious disruption of public finances' defence, neither of which were open to the defendant on the facts. Also, at paras 79-80, Lord Nicholls appears to construe Lord Goff's observation in Woolwich, that recovery should be allowed because 'no consideration' was given for Woolwich's payment, to mean that restitutionary recovery should be denied in a Woolwich type case if the claimant has received a benefit from the defendant in exchange for money paid pursuant to the defendant's ultra vires demand; Lord Nicholls then proceeds to reject this approach, stating that in principle 'their Lordships can see no reason to deny a restitutionary remedy on [the ground that the claimant has received consideration in a 'normal commercial sense']'. The case can be found at:

http://www.privy-council.org.uk/files/other/waikato.rtf-adv.rtf

Charles