Restitution Discussion Group Archives
| Sender: |
Jonathon Moore |
| Date: |
Tue, 20 Dec 2005 16:36:53 +1100 |
| Re: |
Mistake of Law |
Thanks to Michael for this.
I thought Ormiston JA's treatment of Professor Birks
in para [18] was unfair and / or inaccurate. His Honour said:
The concepts behind the respondents' claim in restitution
are by no means fully worked out, whether one goes to authorities binding
on this Court or to the works of the many text writers who have attempted
to expound the principles applicable in this new "field" of
the law. Relevant principles are none the clearer when one knows that
a respected writer, such as Professor Birks, published his original work
on the subject under the title An Introduction to the Law of Restitution
(in 1985), but wrote his final work on the subject in 2003, shortly before
his untimely death, calling it Unjust Enrichment, at the same
time stating[1] in his preface to the latter work that, "Almost everything
of mine now needs calling back for burning". To add to the theoretical
difficulties, what Professor Birks ultimately saw as a new and preferable
insight into these problems, the existence of a basic, overriding principle
of unjust enrichment, was effectively rejected by the High Court in David
Securities.[2] As was there stated by the majority, the "submission
that the [plaintiff] must independently prove 'unjustness' over and above
the mistake cannot therefore be sustained", for, if a payment has
been caused by mistake, that is "sufficient to give rise to the prima
facie obligation on the part of the [defendant] to make restitution".
The burden then rests on the defendant to point to circumstances which
the law will recognise as making such an order for restitution unjust.[3]
------------------------------------------------------------
[1] See p.xiv of the preface (1st ed). A second, posthumous
edition has been published this year with even further changes in approach.
His reasons for preferring the expression "unjust enrichment"
appear succinctly also in his chapter (together with Charles Mitchell)
on that subject in vol. II of English Private Law (Oxford 2000):
see paras.15.01 to 15.10.
[2] By the majority (Mason, C.J., Deane, Toohey, Gaudron
and McHugh, JJ.) at 378-379.
[3] See also per Mason, C.J., Wilson, Deane, Toohey and
Gaudron, JJ. in Australia and New Zealand Banking Group Ltd. v. Westpac
Banking Corporation (1988) 164 C.L.R. 662 at 673. My gripe is three-fold. First, it was obviously a gross
exaggeration, borne of modesty, for Professor Birks to say that "Almost
everything of mine now needs calling back for burning". To isolate that
passage for citation, as if it were literally true, is unwarranted.
Secondly, and more importantly, I think it is quite wrong
for Ormiston JA to say "what Professor Birks ultimately saw as a new and
preferable insight into these problems, the existence of a basic, overriding
principle of unjust enrichment, was effectively rejected by the High Court
in David Securities. The suggestion seems to be that Professor
Birks had said that, pursuant to an "overriding principle of unjust enrichment",
it was necessary for the plaintiff to "independently prove 'unjustness'
over and above the mistake". Professor Birks never said anything of the
sort.
Thirdly, I doubt the accuracy of the suggestion that
the second edition of Unjust Enrichment published this year contained
"even further changes in approach". Others will know better than I, but
my impression was that nothing of great moment changed between the first
and second editions.
Jonathon
----- Original Message ----- The Victorian Court of Appeal today
upheld a decision awarding the plaintiffs restitution based on a mistake
of law.
The dispute arose following a horse
race. The defendant owned a horse that came second past the post. However,
when the winning horse was subsequently disqualified (it tested positive
for a banned substance), the defendant's horse was elevated to first
place. The plaintiffs then paid the defendant prize money on the basis
that his horse was the legal winner.
At the time of paying the prize money
to the defendant, the plaintiffs were not aware that the owners of the
first horse had a right of appeal. That right of appeal was exercised,
and the stewards' decision overturned. The defendant's horse was relegated
to second place. The plaintiffs sought recovery of the additional $76,500
it paid to the defendant.
The defendant was ordered to return
the money to the plaintiffs. Both defences of 'voluntary payment' and
'honest receipt' were rejected.
From: "Michael Rush"
Sent: Tuesday, December 20, 2005 3:53 PM
Subject: [RDG] Mistake of Law
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
