Restitution Discussion Group Archives
| Sender: |
Jonathon Moore |
| Date: |
Wed, 5 Oct 2005 12:59:43 +1000 |
| Re: |
Recipient liability in the NSW CA |
On 15 September 2005 the New South Wales CA (Mason P
Giles JA Tobias JA) delivered its judgment in Say-Dee
Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309.
The Court adopted Professor Birks' approach to "knowing
receipt" - namely, that it is a claim of strict liability in unjust enrichment
subject to defences. At [232] Tobias JA (with whom Mason P and Giles JA
agreed) said:
But in the absence of any High Court authority to the
contrary, I see no reason why the proverbial bullet should not be bitten
by this Court in favour of the Birks/Hansen approach. In my opinion
there is support for the adoption of the restitutionary approach in
Lipkin in the House of Lords and in the exposition on the subject
by Hansen J in Koorootang at 99-105.
Jonathon Moore
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