Date: Mon, 2 Apr 2001 12:55:24 -0400 Reply-To: Allan Axelrod Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Allan Axelrod Subject: [Fwd: Re: [RDG:] Just when you thought it was safe to go back to thelist...] MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="------------EA9A8DCEDB8F522B9E322F76" --------------EA9A8DCEDB8F522B9E322F76 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit -------- Original Message -------- Subject: Re: [RDG:] Just when you thought it was safe to go back to the list... Date: Fri, 30 Mar 2001 14:24:28 -0500 From: Allan Axelrod To: Eoin O'Dell References: <3ACD9AA7@ntserver-e2w2.tcd.ie> following on an exchange with eoin o'dell, i think it worthwhile to call the group's attention to two rules that work against reformation [rectification] and perhaps ought to inhibit easy constructive trust remediation of gratuitous transfer mistakes a. [already mentioned] the statute of frauds b 'equity will not aid a volunteer' those rules express a hard-boiled social policy which certainly is not now in vogue, and alien particularly to warm-hearted believers in restitution, to wit: if the proper forms are not observed, and no paid-for expectations at stake, there is not much social interest in moving the windfall back to the person lucky to have been intended as a beneficiary and away from the even luckier person with no entitlement whatsoever except the words of the instrument. the same hard-boiled attitude found expression in a rule which has been overturned at least in sunny california: it used to be that the disappointed beneficiary of a bequest defeated by a scrivener's negligence had no cause of action against the scrivener. --------------EA9A8DCEDB8F522B9E322F76 Content-Type: text/html; charset=us-ascii Content-Transfer-Encoding: 7bit  

-------- Original Message --------
Subject:  Re: [RDG:] Just when you thought it was safe to go back to the list...
Date:  Fri, 30 Mar 2001 14:24:28 -0500
From:  Allan Axelrod <axelrod@email.andromeda.rutgers.edu>
To:  Eoin O'Dell <eodell@TCD.IE>
References:  <3ACD9AA7@ntserver-e2w2.tcd.ie>

 

    following on an exchange with eoin o'dell, i think it worthwhile to call the group's attention to two rules that work against reformation [rectification] and perhaps
ought to inhibit easy constructive trust remediation of gratuitous transfer mistakes

a.   [already mentioned] the statute of frauds
b    'equity will not aid a volunteer'
    those rules express a hard-boiled social policy which certainly is not now in vogue, and alien particularly to warm-hearted believers in restitution, to wit:
        if the proper forms are not observed, and no paid-for expectations at stake, there is not much social interest in moving the windfall back to the person lucky to have been intended as a beneficiary and away from the even luckier person  with no entitlement whatsoever except the words of the instrument.
     the same hard-boiled attitude found expression in a rule which has been overturned at least in sunny california:  it used to be that the disappointed beneficiary of a bequest defeated by a scrivener's negligence had no cause of action against the scrivener. --------------EA9A8DCEDB8F522B9E322F76-- ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 6 Apr 2001 12:00:35 +1000 Reply-To: Simon Evans Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simon Evans Organization: Faculty of Law, University of Melbourne Subject: Discretionary Remedialism Debunked MIME-version: 1.0 Content-type: text/plain; charset=us-ascii Content-transfer-encoding: 7bit The Full Court of the Federal Court of Australia (Black CJ, Kiefel and Finkelstein JJ) has just roundly rejected the proposition that a common intention constructive trust does not come into existence until declared to do so by the court: Parsons and Parsons v McBain [2001] FCA 376 (5 April 2001) http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/376.html. (To my mind, this part of the judgment relies on a rather strong reading of Giumelli v Giumelli (1999) 196 CLR 101.) In doing so, it overruled Re Osborn; Ex parte Trustee of the Property of Osborn (A bankrupt) v Osborn (1989) 25 FCR 547. It also rejected Secretary, Department of Social Security v Agnew (2000) 96 FCR 357 which appears to have held that there is a discretion as to the date on which such a trust comes into existence. Naturally, both holdings are to be regretted!! Simon Evans -- Dr Simon Evans Faculty of Law University of Melbourne VIC 3010 Phone: +61 3 8344 4751 Fax: +61 3 9347 2392 Email: s.evans@unimelb.edu.au WWW: http://www.law.unimelb.edu.au ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 6 Apr 2001 10:38:46 +0000 Reply-To: Hector MacQueen Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Hector MacQueen Subject: South African case Comments: To: Lionel Smith In-Reply-To: <5.0.2.1.2.20010323101509.00a1c220@po-box.mcgill.ca> Interesting decision of the South African Supreme Court of Appeal, McCarthy Retail Ltd v Shortdistance Carriers CC, decided 16 March 2001, can be found at http://www.uovs.ac.za/faculties/law/appeals/16032001McC1.htm Court discusses general enrichment action, improvements and indirect enrichment. Judgment also blessedly short and clear. Hector MacQueen Hector.MacQueen@ed.ac.uk Professor of Private Law University of Edinburgh Edinburgh EH8 9YL UK Tel (UK)-0131-650-2060/2009 Fax (UK)-0131-650-6317 Editor Edinburgh Law Review ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Tue, 10 Apr 2001 16:50:28 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: new articles MIME-version: 1.0 Content-type: text/plain; charset="iso-8859-1"; format=flowed Content-transfer-encoding: quoted-printable Fr=E9d=E9ric Bachand, "Restitution of Unlawfully Levied Taxes: Survey and=20 Comparative Analysis of Developments in Canada, Australia, and England"=20 (2001) 38 Alberta Law Review 960 Ross Grantham and Charles Rickett, "On the Subsidiarity of Unjust=20 Enrichment" (2001) 117 Law Quarterley Review 273. I might also add that the volume Restitution, in the series International=20 Library of Essays in Law and Legal Theory (2d series), is now out from=20 Ashgate. Details are at=20 . (Before=20 anyone asks, I have no royalty interest in the volume...) Lionel ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Thu, 19 Apr 2001 13:30:21 -0400 Reply-To: Simon Claver Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Simon Claver Subject: Restitution: mistaken improvers. Hi I am a final year law student at Otago University as part of my course I have undertaken an 8,000 word essay on the position of mistaken improvers (Greenwood v Bennett type cases )in New Zealand. The areas I specifically looking at are finders and rogues.I am also interested in unjust sacrifice. If any one can point me towards material on the above I would appriciate it. Thanks Simon Claver claver@es.co.nz ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, tel. (+1) 514 398 6645,email . ========================================================================= Date: Fri, 20 Apr 2001 08:22:02 +1200 Reply-To: Paul Michalik Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Paul Michalik Subject: Re RDG and wrongful use damages MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Dear everyone This is a brief summary from a New Zealand Environment Law newsletter, of a case where the New Zealand High Court awarded damages for wrongful use of land in a cause of action based on trespass. It might be of interest to list members. Paul Michalik CPM35-SD96 Roberts, CA (formerly Ardern) -v- Rodney District Council Local Government Act 1974, 16th Schedule 20 pages Judgment Date: 2/2/2001 Barker J; High Court Auckland Appearances: Berman, KW; Manilo, S; Heaney, DJ; Macky, S Keywords: High Court; trespass to land; wrongful useof land; sewer pipe A claim for damages after the Rodney District Council ("the Council") constructed a sewer pipe through a property owned by the plaintiff and her former husband as tenants-in-common. The plaintiff had received no notification of the proposed construction. In a reserved judgment of 2 October 1997, the Court had found that the Council was liable to the plaintiff for trespass to land. The plaintiff claimed the following damages: $556,265 for trespass to land; particular losses scheduled in evidence; and, interests and costs. The plaintiff claimed for damage to a certain part of the property and also for wrongful use. The Court held that a choice had to be made between these remedies. The plaintiff's preference was for wrongful use. The Court found that the plaintiff was entitled to claim for continuing, rather than past wrongful use, given that it had refused to grant an injunction because the balance of convenience had favoured the Council. In looking at the principles of assessing such a claim the Court noted that wrongful use damages are an anomalous measure which assumes that the plaintiff has incurred loss, and the trespasser profit. They include principles of both compensation and restitution. In the Court's view, the correct starting point was the reasonable price for purchasing the right to do what otherwise would be a trespass. In this particular case, determination of a reasonable price involved costing the other options available to the Council at the time it would have negotiated to purchase the right of passage. It was established that the "Ardern option" for routing the sewer pipe was $208, 802 cheaper than the alternative. The Court concluded that half of this amount was a fair and reasonable proportion that a "willing but not anxious" Council would have paid. However, the Court also considered that it was fair to include maintenance costs, which brought the total price payable to the plaintiff to $144,401. The alternative basis on which the plaintiff could have recovered damages was the Council's undertaking to abide by a Court order for damages. As this amount, based on land valuation, was considerably less than damages on the basis of the tort measure, damages were awarded to the plaintiff on the basis of the tort and not the undertaking. The plaintiff was entitled to recover the full amount but was required to account to her former husband for half of it. Costs arguments were to be heard after the judgment. _______________________________________________________ Paul Michalik work Morrison Kent ph 04 - 495 8927 PO Box 10-035 fax 04 - 495 8937 Wellington mob 021 - 251 6834 home Flat 8, 53 Liardet St ph 04 - 389 8885 Vogeltown Wellington New Zealand ###################################################################### This electronic message together with any attachments or the contents thereof is confidential and may be legally privileged or comprise inside information under the securities laws. Use of it or any part of it for other than the intended purposes or in amended form without our written approval is at the sole risk of the user. If you are not the intended recipient, please notify us immediately and erase the original message and attachments received. Except for that purpose, you must not read, use, copy or disclose any of the information to others. 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