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James' first email asked rhetorically "How could the Defendant possibly claim to have changed his position in good faith?" Following Andrew's response that change of position should indeed be available in the absence of dishonesty, James said "In principle, of course he can", noting however that the quantum of the change may or may not equal the price charge by the defendant for the service.

James' second email, but not the first, seems to me to be clearly right. Change of position in good faith is more than possible.

A very similar situation is currently working its way through the courts in Victoria. An Act requires landlords to give tenants a "disclosure statement" containing certain details about the lease at the commencement of the term. If that is not done, the Act says that: (a) the tenant may withhold rent until the disclosure statement is provided; and (b) the tenant is "not liable" for rent for the period for which there was no disclosure statement.

Several cases have occurred recently where both the landlord and the tenant realised only years down the track that a disclosure statement had not been provided when the lease commenced. The tenant then sought to recover all the rent he had paid in those years. As the Act said nothing about that situation, the tenant's claim was in unjust enrichment for mistake of law. The claim is clearly a good one, but is there a defence of change of position? Or, if there is any practical difference in this situation, can the landlord insist on counter-restitution?

My own view is that, given the right circumstances, one or both of those arguments should be available to the landlord.

Jonathon Moore
Melbourne, Australia

----- Original Message -----
From: James Watthey
Sent: Friday, January 30, 2004 9:39 PM
Subject: [RDG:] Barnet v Anandh

In principle, of course he can, but only to the value that the Court, after hearing evidence on the subject, considers his work to have been worth in all the circumstances. That might be the same as a qualified and registered practitioner, but it might not be. The law should not (and does not) leave a Claimant without a remedy where it is not.

Restitution vs counter-restitution has a necessarily circuitous appearance; that is the unfortunate but inevitable feature of this régime but it does mean that a full account of value is taken and that the "right" result has some chance of being reached. There is in fact no circuity of action; it can all be dealt with in the same proceedings. It is a well-established practice and these days even District Judges are willing to hear extensive argument on it (providing it is properly pleaded and the weather is too bad for golf).