Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Mon, 30 Oct 2006 16:36:35 +0000 |
| Re: |
DMG |
Charles wrote
I'm not sure I think that absence of
basis reasoning would allow us to avoid either of the difficulties I
describe under headings 2a and 2b. So far as 2a is concerned, where
C pays correctly believing that a rule of law requires him to do so,
and the rule is subsequently overturned by judicial decision, would
we not still be faced with the question whether the basis for C's payment
should be deemed by application of a legal fiction not to have existed
at the time when the payment was made?
I don't think so. We don't need any fiction on the absence
of basis model. There is no doubt that the law can be changed with retrospective
effect, indeed this can be done by legislation. (A nice example is Commissioner
of State Revenue v Royal Insurance (1994) 182 CLR 51.) If that
change means that there is no legal ground, there is recovery. We don't
have to worry about the fact that at the time of the payment there was
a legal ground. We only need to worry about this if we feel compelled
to squeeze the claim into a mistake analysis.
And so far as 2b is concerned, would
we not still be faced with the problem that the payment made by DMG
was due under a valid statutory section?
Absolutely, indeed the problem is even more obvious.
Robert Stevens
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
