Envelope-to: swh10@hermes.cam.ac.uk Date: Fri, 4 Jan 2002 12:43:41 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Waikato Regional Airport Ltd v A-G [2001] 2 NZLR 670 Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Under the NZ Biosecurity Act, certain NZ airports may not operate international flights without border control services provided by the NZ Ministry of Agriculture and Fishery (MAF). To some extent these services are funded by the NZ Parliament, but to the extent that the costs of the services exceed the parliamentary appropriation, the Biosecurity Act authorises the Director-General of MAF to recover these costs from the airports in question. MAF adopted a policy of recovering these costs from some of the airports caught by the legislation but not others, which policy the affected airports have now successfully challenged in an action for judicial review. In the same case they have also been allowed to recover a portion of the money which they paid to MAF, under the doctrine of colore officio. Two aspects to Wild J's decision strike me as interesting: 1) At 712 the judge followed G & J at p 322 to hold that the airports could not recover their payments by invoking the rule in Woolwich v IRC because they had received something in exchange for their payments, viz the border control services - i.e. Wild J approved G & J's argument that it follows from Lord B-W's statement in Woolwich at [1993] AC 197, that Woolwich could recover its payments because these had been made 'without consideration', that a claimant who is illegitmately compelled by a public authority to pay for services performed by the authority cannot invoke Woolwich to recover, and must instead rely on the colore officio doctrine. 2) At 714-5, Wild J held that although public authorities generally find it hard to raise the change of position defence because they generally find it impossible to prove that any particular expenditure has been incurred in reliance on a particular receipt, 'this is one of those rare cases where the government can prove expenditure in reliance on [the claimants'] payments to MAF.' However, he then proceeded to follow Andrew Burrows' suggestion that C of P should be ruled out where a public authority is more at fault than the claimant, e.g. because it has used its power to compel the claimant's payment in the face of the claimant's protests (Burrows, 'Public Authorities, Ultra Vires and Restitution' in Burrows (ed), Essays on the Law of Restitution (1991), at 39). In Wild J's view, 'the Crown (MAF) was more - much more at fault - than was [the claimant], and was in the wrong to the extent that it is debarred from relying on the defence of change of position.' Wild J does state that the government is 'perhaps not accurately categorised as a "wrongdoer"', but still his conclusion seems to me rather a surprising application of Lord Goff's statement in Lipkin Gorman that c of p should be withheld from wrongdoers. It also seems to me to take us into relative fault type arguments of the kind that the NZCA considered appropriate as a matter of general law in Waitiki, but which the PC has more recently ruled out in Dextra v Bank of Jamaica. A happy New Year to all readers! Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law King's College London Strand LONDON WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 7 Jan 2002 07:35:24 +1300 Reply-To: Charles Rickett Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Rickett Subject: Re: Waikato Regional Airport Ltd v A-G [2001] 2 NZLR 670 Comments: To: Charles Mitchell In-Reply-To: <3.0.6.32.20020104124341.007c2670@law-mail.kcl.ac.uk> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit This decision, full of embarrassing dictya, was appealed by the Ministry. That appeal was heard before 5 judges in November. I will ensure that you are notified when judgment is released. Happy New Year Charles Rickett on 5/1/02 1:43 AM, Charles Mitchell at charles.mitchell@KCL.AC.UK wrote: > Under the NZ Biosecurity Act, certain NZ airports may not operate > international flights without border control services provided by the NZ > Ministry of Agriculture and Fishery (MAF). To some extent these services > are funded by the NZ Parliament, but to the extent that the costs of the > services exceed the parliamentary appropriation, the Biosecurity Act > authorises the Director-General of MAF to recover these costs from the > airports in question. MAF adopted a policy of recovering these costs from > some of the airports caught by the legislation but not others, which policy > the affected airports have now successfully challenged in an action for > judicial review. In the same case they have also been allowed to recover a > portion of the money which they paid to MAF, under the doctrine of colore > officio. > > Two aspects to Wild J's decision strike me as interesting: > > 1) At 712 the judge followed G & J at p 322 to hold that the airports could > not recover their payments by invoking the rule in Woolwich v IRC because > they had received something in exchange for their payments, viz the border > control services - i.e. Wild J approved G & J's argument that it follows > from Lord B-W's statement in Woolwich at [1993] AC 197, that Woolwich could > recover its payments because these had been made 'without consideration', > that a claimant who is illegitmately compelled by a public authority to pay > for services performed by the authority cannot invoke Woolwich to recover, > and must instead rely on the colore officio doctrine. > > 2) At 714-5, Wild J held that although public authorities generally find it > hard to raise the change of position defence because they generally find it > impossible to prove that any particular expenditure has been incurred in > reliance on a particular receipt, 'this is one of those rare cases where > the government can prove expenditure in reliance on [the claimants'] > payments to MAF.' > > However, he then proceeded to follow Andrew Burrows' suggestion that C of P > should be ruled out where a public authority is more at fault than the > claimant, e.g. because it has used its power to compel the claimant's > payment in the face of the claimant's protests (Burrows, 'Public > Authorities, Ultra Vires and Restitution' in Burrows (ed), Essays on the > Law of Restitution (1991), at 39). > > In Wild J's view, 'the Crown (MAF) was more - much more at fault - than was > [the claimant], and was in the wrong to the extent that it is debarred from > relying on the defence of change of position.' > > Wild J does state that the government is 'perhaps not accurately > categorised as a "wrongdoer"', but still his conclusion seems to me rather > a surprising application of Lord Goff's statement in Lipkin Gorman that c > of p should be withheld from wrongdoers. > > It also seems to me to take us into relative fault type arguments of the > kind that the NZCA considered appropriate as a matter of general law in > Waitiki, but which the PC has more recently ruled out in Dextra v Bank of > Jamaica. > > A happy New Year to all readers! > > Charles > ________________________________________________________________________ > > Dr Charles Mitchell > Lecturer in Law > School of Law > King's College London > Strand > LONDON WC2R 2LS > > tel: 020 7848 2290 > fax: 020 7848 2465 > > ____________________________________________________________________ > 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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 10 Jan 2002 11:39:41 +0800 Reply-To: S'pore J of Legal Stu LAWSJLS Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: S'pore J of Legal Stu LAWSJLS Subject: New Articles on the SJLS Comments: cc: Michael Hor , Tang Hang Wu MIME-Version: 1.0 Content-Type: text/plain; charset="gb2312" Content-Transfer-Encoding: quoted-printable Members of the restitution discussion group may be interested in the following article and case notes in December 2001 issue of the = Singapore Journal of Legal Studies: Articles WRONG AND REMEDY : A STICKY RELATIONSHIP By David Wright Abstract This article critiques Birks=A1=AF =A1=B0The Law of Unjust Enrichment: = A Millennial Resolution=A1=B1. It attempts to articulate the problems inherent in = Birks=A1=AF proposed taxonomy for today=A1=AFs legal system. It puts forward an = alternative model of the relationship between wrong and remedy - allowing for flexibility and the concept of appropriateness. Wrong and remedy are = not completely independent from each other. They exist in a = =A1=B0sticky=A1=B1 relationship that guides the relief granted in each situation. A hard = and fast taxonomy is doomed to failure. This article presents a solution = to this problem where taxonomy is based on a loose and dynamic federation = of remedies. Case Notes: Damages to Protect Performance Interest And the Reasonableness = Requirement=20 Alfred McAlpine v. Panatown by Alexander FH Loke Grounds of Economic Duress - Further Clarification or Further = Confusion? Sharon Global Solutions Pte Ltd v LG International (Singapore) Pte Ltd by Daniel Tan The Singapore Journal of Legal Studies invites submissions from the = members of the Restitution Discussion Group. All enquiries on overseas = subscription and submissions should be sent to: lawthw@nus.edu.sg. The Singapore = Journal of Legal Studies website can be found at http://law.nus.edu.sg/sjls/index.htm Tang Hang Wu Assistant Professor Faculty of Law National University of Singapore 13 Law Link Singapore 117590 ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Thu, 17 Jan 2002 13:32:11 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Annual Lecture in Jurisprudence and Public Policy MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed It gives me great pleasure to announce that on Thursday 14 March 2002, Professor Peter Birks will give the Annual Lecture in Jurisprudence and Public Policy at the Faculty of Law of McGill University. The title of the lecture is "Conscientious Enemies of the Rule of Law". All are welcome. 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 6635,email . ========================================================================= Date: Fri, 18 Jan 2002 11:03:30 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Re: Annual Lecture in Jurisprudence and Public Policy Comments: To: Lionel Smith MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 7bit Will you pay our fares? Francis D. Rose Professor of Commercial Law Faculty of Law University of Bristol Wills Memorial Building Queen's Road Bristol BS8 1RJ (Tel: 0117-954-5318) -----Original Message----- From: Lionel Smith To: ENRICHMENT@LISTS.MCGILL.CA Date: 17 January 2002 18:35 Subject: [RDG:] Annual Lecture in Jurisprudence and Public Policy >It gives me great pleasure to announce that on Thursday 14 March 2002, >Professor Peter Birks will give the Annual Lecture in Jurisprudence and >Public Policy at the Faculty of Law of McGill University. The title of the >lecture is "Conscientious Enemies of the Rule of Law". All are welcome. > >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 6635,email > . > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Sat, 19 Jan 2002 13:02:31 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Annual Lecture in Jurisprudence and Public Policy In-Reply-To: <5.1.0.14.2.20020117115601.00a55da0@po-box.mcgill.ca> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" At 13:32 17/01/02 -0500, Lionel wrote: >It gives me great pleasure to announce that on Thursday 14 March 2002, >Professor Peter Birks will give the Annual Lecture in Jurisprudence and >Public Policy at the Faculty of Law of McGill University. The title of the >lecture is "Conscientious Enemies of the Rule of Law". All are welcome. This was puzzling at first, given the lack of any obvious connection with restitution. But then I realised that a title like that is meant as a challenge to our collective ingenuity. Having thought long and hard, I can only see two possibilities. Perhaps the talk is really about restitution on frustration of contract. In fact, the title conceals a succinct summary of the issues in the leading case of BP v. Hunt [1979] 1 WLR 783. It is an anagram of: "Oil flow safe? Cut! O no! I see enrichment! Sue!" On the other hand, the talk might really be a critique of the notoriously unsatisfactory law on restitution for wrongs. For the title is also an anagram of: "Loot enrichment, felon? I sue, we sue. Fiasco!" Obviously I could be missing something here, and others may have noticed a more satisfactory solution. I throw the matter open for general discussion. Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : (01223) 334900 www.stevehedley.com fax : (01223) 334967 Christ's College Cambridge CB2 3BU ============================================= ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 21 Jan 2002 09:37:42 -0000 Reply-To: Francis Rose Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Francis Rose Subject: Re: Annual Lecture in Jurisprudence and Public Policy MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" I suspect Mr Hedley may have just confirmed our growing suspicions about him. FDR -----Original Message----- From: Steve Hedley To: ENRICHMENT@LISTS.MCGILL.CA Sent: 1/19/02 1:02 PM Subject: [RDG:] Annual Lecture in Jurisprudence and Public Policy At 13:32 17/01/02 -0500, Lionel wrote: >It gives me great pleasure to announce that on Thursday 14 March 2002, >Professor Peter Birks will give the Annual Lecture in Jurisprudence and >Public Policy at the Faculty of Law of McGill University. The title of the >lecture is "Conscientious Enemies of the Rule of Law". All are welcome. This was puzzling at first, given the lack of any obvious connection with restitution. But then I realised that a title like that is meant as a challenge to our collective ingenuity. Having thought long and hard, I can only see two possibilities. Perhaps the talk is really about restitution on frustration of contract. In fact, the title conceals a succinct summary of the issues in the leading case of BP v. Hunt [1979] 1 WLR 783. It is an anagram of: "Oil flow safe? Cut! O no! I see enrichment! Sue!" On the other hand, the talk might really be a critique of the notoriously unsatisfactory law on restitution for wrongs. For the title is also an anagram of: "Loot enrichment, felon? I sue, we sue. Fiasco!" Obviously I could be missing something here, and others may have noticed a more satisfactory solution. I throw the matter open for general discussion. Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : (01223) 334900 www.stevehedley.com fax : (01223) 334967 Christ's College Cambridge CB2 3BU ============================================= ____________________________________________________________________ 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 6635,email . ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 21 Jan 2002 15:58:59 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Big Time Restitution/Disgorgement: Updates MIME-version: 1.0 Content-type: text/plain; charset="us-ascii"; format=flowed Three updates on large scale cases: 1. Authorson v. Canada. This class action was brought by veterans who were or became unable to manage their own affairs. They alleged that for many years the agencies of the federal Crown had systematically mismanaged the veterans' pension & benefits assets, in particular by not investing the funds or even paying interest. In Oct 2000 the trial judge held that the Crown was liable. The quantum was to be decided separately but is estimated at between Can$1.6 and Can$3.6 billion (or between six and fourteen US dollars). More details in my posting of 23 Nov 2000. There has been a lot of activity in this file, including interventions and various interlocutory orders. I believe the plaintiff class has also been expanded to cover the estates of veterans who died before this action was started (raising the potential liability to US$18). The Ont CA has yet to decide the Crown's appeal on liability, so far as I know, although I believe the appeal was argued last year. 2. On 21 December 1999 the Canadian federal government launched a lawsuit in US federal court against RJR-Macdonald, alleging that they were involved in smuggling cigarettes into Canada and seeking $1 billion, much of that as disgorgement of profits. The action was brought under RICO, under which civil damage awards are tripled. This was posted to the list in Jan 00 and sparked some debate. The federal district court (SDNY) dismissed the claim on the basis that it was barred by the "revenue rule" (no enforcement of another country's tax laws). This has now been affirmed on appeal: AG of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103. Judge Guido Calabresi (of "One View of the Cathedral" fame) dissented; the opening line of his judgment is: "On its face, and despite the considerable confusion created by defendants' able arguments, the revenue rule has nothing to do with this case." 3. Garland v. Consumers' Gas Co. [2001] O.J. No. 4651 (C.A.). This is a class action brought by those who paid late payment fees on their gas bills. It was argued that the automatic late fee violated the Criminal Code as potentially exceeding an interest rate of 60% p.a. The Supreme Court of Canada held that it did violate the code and the case went back to trial (more details in my posting of 3 Nov 98). The trial judge held nonetheless that the class plaintiffs could not have restitution (more details in my posting of 1 Nov 00). He gave summary judgment for the defendants. The Ont. C.A. has now affirmed that judgment, but with a vigorous dissent by Borins JA. I am also happy to note that Steve Hedley told me in advance that this posting would be no 1000 since the RDG began in Sept 95. In addition to this milestone, we also recently passed 300 subscribers. 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 6635,email . ========================================================================= Date: Thu, 24 Jan 2002 13:32:29 +0000 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Unjust enrichment, Irish style Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable >From today=92s Irish Times, an interesting claim of unjust enrichment by wrongdoing: =93Council gets court order stopping arbitration Dun Laoghaire-Rathdown County Council has secured a High Court order preventing an arbitrator from hearing a claim for compensation by Jackson Way Properties Ltd (JWP). The claim concerns the compulsory acquisition of some 22 acres of its land for the construction of Dublin=92s south-eastern motorway. =85 In his decision granting the council's application for an interlocutory order, the judge [O=92Sullivan J] said the council had submitted that the compensation claim, which was predicated on a rezoning of the lands from agriculture to industrial in the 1998 County Development Plan, constituted a claim for "unjust enrichment". The basis of that claim was information made known by the Flood tribunal. The tribunal had received information that certain monies were paid to elected members of Dublin County Council by and on behalf of Paisley Park Investments Ltd and/or JWP to secure the rezoning of land, including that being compulsorily acquired from JWP, before the 1993 County Development Plan and the current Dun Laoghaire-Rathdown Development Plan. =85 The council had argued that if the allegation of bribery was proved against JWP, the claim and any award on foot of it would constitute "unjust enrichment" of JWP. Any such alleged bribery was strongly denied by and on behalf of JWP.=94 The full story is at: http://www.ireland.com/newspaper/ireland/2002/0124/80368433HMCTJWP.html The Flood Tribunal is investigating political corruption, especially in relation to planning mattes. The Irish Times pages on the tribunal are at: http://www.ireland.com/special/tribunals/ The Flood Tribunal=92s homepage is at: http://www.flood-tribunal.ie/ EOIN O'DELL BCL(NUI) BCL(Oxon) Editor, Dublin University Law Journal. Barrister, Lecturer in Law, Trinity College, Dublin 2, Ireland. (353/0 1) 608 1178 (w) 677 0449 (fx); eodell@tcd.ie (All opinions are personal. No legal responsibility whatsoever is accepted.) ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 28 Jan 2002 13:59:44 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: change of position and liability incurred Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable A nice case in the CA last Nov (I don't think it's been picked up on RDG yet): how do you deal with change of position where a liability is incurred but not yet paid? In Pearce v Lloyds Bank (Casetrack, 23/11/01), Fraudster buys gold bullion for =A390k from Pearce, a jeweller, by causing a forged transfer into Pearce's account at Lloyds of that amount (all amounts approx). The bullion has been bought for =A390k by Pearce (ie no profit on the deal), but he buys VAT free for =A380k, being in due course accountable to Customs for the =A31= 0k VAT element. Pearce is running on a shoestring, and Customs eventually get their =A310k from him 5 years later. The balloon duly goes up, and Lloyds claims to debit Pearce's account by =A390k. Writs fly. Pearce is held entitled to change of position re =A380k: no problems. But what about the =A310k? Pearce says he's entitled to have the whole entry reversed as at the time of trasfer into his account (and hence he shouldn't have to pay o/d interest on the 10k). Lloyds say, No: pay interest until you actually paid Customs, since otherwise you get a free five-year o/d of =A310k from us. CA say: Lloyds are right, and can charge him interest, provided they accept liability for the =A310k as and when paid.=20 Is this the best way to deal with the problem? It seems harsh that you get no relief for an item which appears on your balance sheet straight away. Also, Pearce is effectively forced to give credit to Lloyds - OK perhaps with a bank, but not necessarily where the payer is less solid. For these reasons, might a better way be to give Pearce relief immediately for his liability to Customs, subject to a deduction for interest between the time the =A310k was credited to Pearce and the time he paid it over to Customs? Any thoughts? Andrew =20 Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Mobile: 07813-478102 Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 28 Jan 2002 09:38:40 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Broker's Lost Commission Split Recovered in Quasi Contract Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed While we are digesting Andrew Tettenborn's case... Allan Axelrod drew to my attention the following decision, here summarized in a US real estate newsletter, in which the 6th Circuit CA deals with the 3d party contract rule and concludes that a plaintiff can sue a beneficiary in ue even where the enrichment was conferred pursuant to the plaintiff's contract with a (now insolvent) third party. Note that the link to the text of the case is good, but it will not work as a direct click if your mail program splits it across more than one line (as mine did): you will need to cut and paste a bit. It is interesting to note the Court's understanding of Ohio law regarding the relationship between quasi-contract and unjust enrichment. The judgement is also refreshingly terse. Lionel >Daily Development for Thursday, January 24, 2002 > >by: Patrick A. Randolph, Jr. > >Elmer F. Pierson Professor of Law > >UMKC School of Law > >Of Counsel: Blackwell Sanders Peper Martin > >Kansas City, Missouri > >dirt@umkc.edu > > > >BROKERS; COMMISSIONS; UNJUST ENRICHMENT: Where > >landlord's broker has reached a commission splitting agreement with a > >tenant's broker and has successfully completed a lease deal prior to a > >judicial determination that the landlord had no commission liability to its > >broker due that broker's malfeasance, the tenant's broker is entitled to a > >recover from the landlord under an unjust enrichment theory. > > > >Reisenfeld & Co. v. The Network Group, Inc., (6th Cir. 1/18/02) > > > >http://www.michbar.org/opinions/home.html?/opinions/us_appeals/2002/01180 > 2/13618.html > > > >BSI was interested in selling, subletting or leasing vacant K Mart stores. > >It entered into an agreement with The Network Group to carry out this > >process in a certain region. With respect to one store location, Network > >dealt with Reisenfeld, a broker representing Dick's Sporting Goods, > >relating to the sublease of the store to Dick's. Reisenfeld's commission > >agreement with Network was that Reisenfeld would receive $1 per > >square foot if a deal was concluded with Dick's. Dick's did complete the > >deal, and Reisenfeld's commission share would have been $163,000. > > > >In the meantime, however, it was disclosed that the principle of Network > >had deal dishonestly with BSI. This party was convicted of criminal > >behavior, and a court ordered Network to disgorge all commissions paid > >to it by BSI and relieved BSI of any further liability to Network for > >unpaid commissions. > > > >The result was that Reisenfeld was out in the cold, since there was no > >commission to split, unless it could collect from Network, which was > >appearing very much like a dry well. > > > >Reisenfeld brought suit against Network and BSI.... >It stated that under > >the law of restitution (unjust enrichment), a party is liable to pay the > >value of a benefit conferred when it is aware that another party is > >providing that benefit and it accepts the benefit. Reisenfeld argued that >it > >fit this description, and the court agreed. BSI argued that Reisenfeld had > >a duty to demonstrate that BSI was guilty of some inequitable conduct to > >justify imposing the burden of restitution. The court disagreed. It > >acknowledged that some cases in other jurisdiction might require > >evidence of inequitable conduct in these cases, but that in Ohio, the > >operative jurisdiction, the only requirement was receipt of a benefit > >where the party receiving the benefit knows that a third party is > >responsible for the benefit and accepts the benefit under circumstances in > >which it would be unjust to retain the benefit without paying for it. > >Here, the injustice in BSI's keeping the benefit, the court concluded, was > >manifest, since it never had to pay anything to Network and it was > >completely aware that Reisenfeld, innocent of the wrongdoing of > >Network, was laboring to produce the sublease benefit. > > > >The court noted, however, that the degree of compensation was not > >determined by the commission agreement between Network and > >Reisenfeld, and remanded for a determination of the amount of unjust > >enrichment. > > > >Editor's Comment 1: Is it possible that the unjust enrichment would > >exceed the commission agreement price? Unlikely, since this would not > >be "just" treatment of Reisenfeld, which expected at a maximum the > >agreed amount. > > > >Is it possible that the unjust enrichment will be less than the commission > >agreement price? Absolutely. In fact, if it is determined that a reason > >that BSI was alleviated of commission obligations to Network was that it > >had suffered losses due to Network's activities, it may be unjust to > >require BSI to pay here. The Network fraud, however, came in other > >deals, and the court does not appear to be focussing on those deals. In > >any event, the real rationale for denying the commission appears to be > >that there was a breach of the broker's duties of loyalty and honesty. > > > >Editor's Comment 2: In the Editor's experience, lawyers often miss the > >restitution claim, at least early in the analysis of a problem. There >often > >is a vein to be exploited in this area. > > ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Mon, 28 Jan 2002 15:11:36 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: Broker's Lost Commission Split Recovered in Quasi Contract Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" My instinct is that this must be wrong. Isn't the answer here the fact that there's nothing unjust about BSI's enrichment? The first reason, which is admittedly controversial, is that there's nothing wrong about accepting a benefit from someone who took the risk of a third party's solvency. But quite apart from that, we have here a provision of Ohio law that allows the employer of a dishonest agent to keep his services for nothing. That may or may not be a good thing (no doubt in England some trumpery argument might be raised against it on human rights grounds and the Wilson case). But surely the effect of such a law is to legitimise BSI in paying nothing, even Reisenfeld's share, for the benefit of having got a tenant for the K mart store. Andrew >X-Sender: lionel.smith@staff.mcgill.ca >X-Mailer: QUALCOMM Windows Eudora Version 5.1 >Date: Mon, 28 Jan 2002 09:38:40 -0500 >Reply-To: Lionel Smith >Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues >From: Lionel Smith >Subject: [RDG:] Broker's Lost Commission Split Recovered in Quasi Contract >To: ENRICHMENT@LISTS.MCGILL.CA > >While we are digesting Andrew Tettenborn's case... > >Allan Axelrod drew to my attention the following decision, here summarized >in a US real estate newsletter, in which the 6th Circuit CA deals with the >3d party contract rule and concludes that a plaintiff can sue a beneficiary >in ue even where the enrichment was conferred pursuant to the plaintiff's >contract with a (now insolvent) third party. > >Note that the link to the text of the case is good, but it will not work as >a direct click if your mail program splits it across more than one line (as >mine did): you will need to cut and paste a bit. > >It is interesting to note the Court's understanding of Ohio law regarding >the relationship between quasi-contract and unjust enrichment. The >judgement is also refreshingly terse. > >Lionel > > > >Daily Development for Thursday, January 24, 2002 >> >by: Patrick A. Randolph, Jr. >> >Elmer F. Pierson Professor of Law >> >UMKC School of Law >> >Of Counsel: Blackwell Sanders Peper Martin >> >Kansas City, Missouri >> >dirt@umkc.edu >> > >> >BROKERS; COMMISSIONS; UNJUST ENRICHMENT: Where >> >landlord's broker has reached a commission splitting agreement with a >> >tenant's broker and has successfully completed a lease deal prior to a >> >judicial determination that the landlord had no commission liability to its >> >broker due that broker's malfeasance, the tenant's broker is entitled to a >> >recover from the landlord under an unjust enrichment theory. >> > >> >Reisenfeld & Co. v. The Network Group, Inc., (6th Cir. 1/18/02) >> > >> >http://www.michbar.org/opinions/home.html?/opinions/us_appeals/2002/01180 >> 2/13618.html >> > >> >BSI was interested in selling, subletting or leasing vacant K Mart stores. >> >It entered into an agreement with The Network Group to carry out this >> >process in a certain region. With respect to one store location, Network >> >dealt with Reisenfeld, a broker representing Dick's Sporting Goods, >> >relating to the sublease of the store to Dick's. Reisenfeld's commission >> >agreement with Network was that Reisenfeld would receive $1 per >> >square foot if a deal was concluded with Dick's. Dick's did complete the >> >deal, and Reisenfeld's commission share would have been $163,000. >> > >> >In the meantime, however, it was disclosed that the principle of Network >> >had deal dishonestly with BSI. This party was convicted of criminal >> >behavior, and a court ordered Network to disgorge all commissions paid >> >to it by BSI and relieved BSI of any further liability to Network for >> >unpaid commissions. >> > >> >The result was that Reisenfeld was out in the cold, since there was no >> >commission to split, unless it could collect from Network, which was >> >appearing very much like a dry well. >> > >> >Reisenfeld brought suit against Network and BSI.... >>It stated that under >> >the law of restitution (unjust enrichment), a party is liable to pay the >> >value of a benefit conferred when it is aware that another party is >> >providing that benefit and it accepts the benefit. Reisenfeld argued that >>it >> >fit this description, and the court agreed. BSI argued that Reisenfeld had >> >a duty to demonstrate that BSI was guilty of some inequitable conduct to >> >justify imposing the burden of restitution. The court disagreed. It >> >acknowledged that some cases in other jurisdiction might require >> >evidence of inequitable conduct in these cases, but that in Ohio, the >> >operative jurisdiction, the only requirement was receipt of a benefit >> >where the party receiving the benefit knows that a third party is >> >responsible for the benefit and accepts the benefit under circumstances in >> >which it would be unjust to retain the benefit without paying for it. >> >Here, the injustice in BSI's keeping the benefit, the court concluded, was >> >manifest, since it never had to pay anything to Network and it was >> >completely aware that Reisenfeld, innocent of the wrongdoing of >> >Network, was laboring to produce the sublease benefit. >> > >> >The court noted, however, that the degree of compensation was not >> >determined by the commission agreement between Network and >> >Reisenfeld, and remanded for a determination of the amount of unjust >> >enrichment. >> > >> >Editor's Comment 1: Is it possible that the unjust enrichment would >> >exceed the commission agreement price? Unlikely, since this would not >> >be "just" treatment of Reisenfeld, which expected at a maximum the >> >agreed amount. >> > >> >Is it possible that the unjust enrichment will be less than the commission >> >agreement price? Absolutely. In fact, if it is determined that a reason >> >that BSI was alleviated of commission obligations to Network was that it >> >had suffered losses due to Network's activities, it may be unjust to >> >require BSI to pay here. The Network fraud, however, came in other >> >deals, and the court does not appear to be focussing on those deals. In >> >any event, the real rationale for denying the commission appears to be >> >that there was a breach of the broker's duties of loyalty and honesty. >> > >> >Editor's Comment 2: In the Editor's experience, lawyers often miss the >> >restitution claim, at least early in the analysis of a problem. There >>often >> >is a vein to be exploited in this area. >> > > >____________________________________________________________________ > 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 6635,email > . > Andrew Tettenborn MA LLB Bracton Professor of Law Tel: 01392-263189 / +44-392-263189 (international) Mobile: 07813-478102 Fax: 01392-263196 / +44-392-263196 (international) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England [ Homepage: http://www.ex.ac.uk/law/ ]. ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 29 Jan 2002 16:52:22 +0000 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: Broker's Lost Commission Split Recovered in Quasi Contract In-Reply-To: <3.0.5.32.20020128151136.00828500@pop.ex.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" I agree with Andrew. The court treated the question of injustice as essentially discretionary: 'Defining a given situation as either just or unjust is subjective and not necessarily open to a clear and decisive answer; as one court explained, "[t]he notion of what is or is not 'unjust' is an inherently malleable and unpredictable standard." ... ' In deciding this issue, the main factors in the defendants' favour seem to have been: * that they did not act improperly; and * that they had suffered considerable losses at Network's hands. But this was apparently outweighed by the points that: * they had not paid Network on this particular contract; and * their losses 'were "soft" losses of additional profits they might have made, rather than quantifiable losses (due, for example, to theft)'. I would be very surprised if an English court had as much, or indeed any, sympathy for the plaintiff. Both parties voluntarily gave credit to an individual who turned out to be a fraudster. Both lost as a result. There is nothing to show that the defendants were any more at fault than the plaintiff. And the defendants can only be presented as having 'gained' by arbitrarily confining our attention to the transactions the plaintiff seeks to focus attention on; overall, the defendants lost considerably, as the court acknowledged. I do not understand the argument about the type of loss; but then I have never understood the argument that a claim to redress an unjust enrichment is more worthy or deserving than a 'merely' contractual claim. At 15:11 28/01/02 +0000, Andrew Tettenborn wrote: >My instinct is that this must be wrong. Isn't the answer here the fact that >there's nothing unjust about BSI's enrichment? The first reason, which is >admittedly controversial, is that there's nothing wrong about accepting a >benefit from someone who took the risk of a third party's solvency. But >quite apart from that, we have here a provision of Ohio law that allows the >employer of a dishonest agent to keep his services for nothing. That may or >may not be a good thing (no doubt in England some trumpery argument might >be raised against it on human rights grounds and the Wilson case). But >surely the effect of such a law is to legitimise BSI in paying nothing, >even Reisenfeld's share, for the benefit of having got a tenant for the K >mart store. Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : (01223) 334900 www.stevehedley.com fax : (01223) 334967 Christ's College Cambridge CB2 3BU ============================================= ____________________________________________________________________ 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 6635,email . ========================================================================= Date: Tue, 29 Jan 2002 14:17:05 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: The biggest mistaken payment ever? Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable Talk about fiscal chaos ... from today's online Globe and Mail,=20 www.globeandmail.com : =3D=3D=3D=3D=3D Provinces overpaid by $3.3-billion By OLIVER MOORE Globe and Mail Update The federal government has paid four provinces around $3.3-billion too much= =20 due an accounting error that could date back 30 years, it was revealed=20 Tuesday. Government ministers speaking in Ottawa following cabinet meetings= =20 sought to downplay the importance of the error. "These adjustments are made regularly. Sometimes we have overpayment,=20 sometimes we have underpayment," Prime Minister Jean Chr=E9tien told=20 reporters, adding that the problem does seem "bigger" than usual this time. National Revenue Minister Elinor Caplan said the important thing to note is= =20 that the error has been fixed "on a go-forward basis." Ms. Caplan ascribed the problem to an accounting practice dating to 1972,=20 and that investigators are now going back "as best we can" through decades= =20 of records. "Provincial legislation requires that we deduct from the provincial=20 revenues the refund for capital-gains for mutual funds, and that deduction= =20 was actually taken from federal funds, that refund, and therefore resulted= =20 in overpayment." The problem is related to government-to-government transfers and does not=20 affect individual taxpayers or mutual fund trusts or their investors, she=20 added. Finding the problem "at this time was a big surprise for everyone,=20 especially me on my first day," said Ms. Caplan, who served as Immigration= =20 and Citizenship Minister until Mr. Chr=E9tien's recent cabinet shuffle. No decision can be made on a mechanism for retrieving the money until all=20 the facts are known, Ms. Caplan said. The government has invited the=20 provincial auditors of the four provinces involved =97 Ontario, Alberta,=20 Manitoba and B.C. =97 to assist the federal auditor-general in her= investigation. =3D=3D=3D=3D=3D=3D "The problem ... does not affect individual taxpayers" ... hmmm. 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 6635,email . ========================================================================= Date: Thu, 31 Jan 2002 11:08:43 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: biggest mistake cont. Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: quoted-printable The update from the Globe "Provinces may be asked to reimburse Ottawa, PM hints By HEATHER SCOFFIELD, RICHARD MACKIE and KRISTA FOSS From Thursday's Globe and Mail Prime Minister Jean Chr=E9tien hinted Wednesday that four provinces may be= =20 asked to pay back the $3.3-billion that the federal government mistakenly=20 handed out to them during the 1990s. Any demand for repayment is bound to start a vicious fight with the=20 provinces, especially Ontario, which would have to repay $2.8-billion of=20 the total and has already vowed not to do so. But if Ottawa forgives and forgets about the overpayments, provinces that=20 did not receive any extra money, notably Quebec, would no doubt be equally= =20 outraged over what amounts to a $2.8-billion subsidy to Ontario. The Prime Minister pointed out Wednesday that accounting errors are usually= =20 corrected at year-end, with the recipient of the extra money paying it back. "Usually adjustments are needed in circumstances like that every year. For= =20 many years, because of the reports we have been receiving on income tax=20 levels and so on, we have to make further payments to the provinces. In=20 other circumstances they have to make payments to the Canadian government,"= =20 Mr. Chr=E9tien said in Question Period. However, Liberal ministers said the government was still studying the=20 problem and had not come to a final conclusion. "When we have (the) facts, we will make the decisions that are required. We= =20 will do so in conjunction with discussions with the provinces," Finance=20 Minister Paul Martin told opposition critics, who called the error a=20 "boondoggle" that shows the government to be "incompetent." Revenue Minister Elinor Caplan owned up on Tuesday to the $3.3-billion=20 mistake, which was discovered by officials in her department after a=20 seven-month investigation. The final amount will likely be much more than=20 that because the accounting error goes back 30 years, and the $3.3-billion= =20 figure accounts for only the mistakes made from 1993 to 1999. It does not=20 include at least $300-million made in extra equalization payments to the=20 poorer provinces as a result of the accounting error. The federal Auditor General will be working with her provincial=20 counterparts and government accountants for at least the next couple of=20 months to determine the full cost of the error. Only then will Ottawa=20 decide whether to demand repayment, and how. More is at stake than just maintaining Ottawa's relationship with Ontario=20 and Quebec. Ontario is also threatening to pull out of the Tax Collection=20 Agreement with the federal government, and Ontario Finance Minister Jim=20 Flaherty said Wednesday he is in discussions with other provinces to pull=20 out too. "If they continue to insist on (repayment), yes, I would conduct a separate= =20 tax collection process on behalf of the province of Ontario. We might join= =20 with Quebec. We might join with other provinces. And we've had discussions= =20 about that already," Mr. Flaherty told reporters after a speech in Ottawa. Ottawa wants to continue collecting provincial tax on behalf of the=20 provinces to make sure that all have the same definition of taxable income.= =20 (Quebec collects its own taxes, but abides by the federal definition of=20 taxable income.) Otherwise, Ottawa fears some provinces would market=20 themselves as tax-free zones to the detriment of other provinces. Surprisingly, Nova Scotia does not want Ottawa to demand repayment for the= =20 error. That's because the provincial government there benefited from=20 slightly higher equalization payments stemming from the error, and can't=20 afford to have that money clawed back, said Rob Batherson, spokesman for=20 Premier John Hamm." Lionel =20 ____________________________________________________________________ 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 6635,email .