========================================================================= Date: Mon, 1 Jul 2002 13:33:00 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Hammond v Osbourn Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Members of the group may be interested to read Hammond v Osbourn, a presumed undue influence case which for once has nothing to do with wives' guarantees. the case is available on-line at: http://www2.bailii.org/~jury/cases/EW/EWCA_Civ_2002_885.html The defendant Mrs Osbourn was made a gift of some =A3300,000 by an elderly neighbour which the CA ordered her to return on the ground that she had failed to rebut a presumption of UI. Of particular interest, in light of the HL's frequent loose references in Etridge to the 'wrongfulness' of defendants' behaviour in UI cases, is Sir Martin Nourse's statement at para 32 that: >Even if it is correct to say that Mrs Osborn=92s conduct was unimpeachable and that there was nothing > sinister in it, that would be no answer to an application of the presumption. As Cotton LJ said in Allcard v > Skinner (see para 1 above), the court does not interfere on the ground that any wrongful act has in fact > been committed by the donee but on the ground of public policy, which requires it to be affirmatively > established that the donor=92s trust and confidence in the donee has not been betrayed or abused On the same theme, Ward LJ said at para 61 that: =20 > I am quite prepared > to accept Mrs Osborn was not guilty of any reprehensible conduct but I am satisfied that she has failed to > discharge the burden of proof which lay upon her.=20 Charles ________________________________________________________________________ Dr Charles Mitchell Lecturer in Law School of Law=20 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: Tue, 9 Jul 2002 00:25:44 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Twinsectra and Quistclose Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all, I have just read Alistair Speirs "Escape from the Tangled Web" casenote on the House of Lords judgment in Twinsectra v Yardley [2002] UKHL 12. Alistair writes that their lordships "were unanimous in holding that the Court of Appeal was correct to reverse Carnwath J on the question of whether the loan, coupled with Sims' undertaking, created a trust. The only speech to provide a detailed analysis of this question was that of Lord Millett (HL, paras. 68-103) ... Lord Hoffmann's less detailed analysis reached the same conclusions as Lord Millett's and is in no way inconsistent with it (see HL, para.13)". To the extent that Alistair is arguing here that Millett wrote for a unanimous House on the issue of the Quistclose trust, I don't think that I can agree. In particular, I think that Millett and Hoffmann were doing very different things. I agree with Alistair that Millett chose to treat the trust as a Quistclose trust, and that he took an essentially intentionalist approach to it which he then undercut it all by insisting that it is resulting on Chambers pattern. However - as I read Twinsectra, and here I would differ from Alistair - I think that _only_ Millett chose to treat it as a Quistclose trust. In my view, Hoffmann treated the relevant trust simply as express (see paras 13-17; for example, according to Hoffmann in para 13, in a classic express trust comment, everything turned on the terms of the undertaking) and, as Alistair himself observes, in this Slynn and Steyn concurred (see paras 2 and 7). I think that what Hoffmann did is to say that the kind of trust which arose in the case itself is an express trust. Now, this means either that he didn't really direct his mind to or enter onto the Quistclose debate or that he thought that that the Quistclose trust is an express trust. I think the first explanation is the more plausible. Either way, his approach is fundamentally different from Millett's resulting trust approach. Confusingly, Hutton agreed with the reasons of both Hoffmann and Millett (para 25), but since their approaches are so different, I can get nothing from this. If this is right, then Millett=92s views do not form part of the ratio of Twinsectra. Consequently, the Court of Appeal in the subsequent Carlton v Goodman [2002] EWCA Civ 545 was quite right to treat the whole thing as an open question. I'd like to know what others think on this issue. Eoin. 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: Tue, 9 Jul 2002 10:06:57 +0100 Reply-To: "Todd P.N." Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Todd P.N." Subject: Re: Twinsectra and Quistclose Comments: To: Eoin O'Dell MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" I agree that Lord Hoffman's reasoning is in terms of an express, not a Quistclose trust, coupled with a power. He also thought, but did not explain (at para. 13) that "Sims also owed fiduciary obligations to Mr Yardley in respect of the exercise of the power", whereas the logic of Lord Millett's speech is otherwise. Paul Todd -----Original Message----- From: Eoin O'Dell [mailto:eodell@TCD.IE] Sent: 09 July 2002 00:26 To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Twinsectra and Quistclose Hello all, I have just read Alistair Speirs "Escape from the Tangled Web" casenote on the House of Lords judgment in Twinsectra v Yardley [2002] UKHL 12. Alistair writes that their lordships "were unanimous in holding that the Court of Appeal was correct to reverse Carnwath J on the question of whether the loan, coupled with Sims' undertaking, created a trust. The only speech to provide a detailed analysis of this question was that of Lord Millett (HL, paras. 68-103) ... Lord Hoffmann's less detailed analysis reached the same conclusions as Lord Millett's and is in no way inconsistent with it (see HL, para.13)". To the extent that Alistair is arguing here that Millett wrote for a unanimous House on the issue of the Quistclose trust, I don't think that I can agree. In particular, I think that Millett and Hoffmann were doing very different things. I agree with Alistair that Millett chose to treat the trust as a Quistclose trust, and that he took an essentially intentionalist approach to it which he then undercut it all by insisting that it is resulting on Chambers pattern. However - as I read Twinsectra, and here I would differ from Alistair - I think that _only_ Millett chose to treat it as a Quistclose trust. In my view, Hoffmann treated the relevant trust simply as express (see paras 13-17; for example, according to Hoffmann in para 13, in a classic express trust comment, everything turned on the terms of the undertaking) and, as Alistair himself observes, in this Slynn and Steyn concurred (see paras 2 and 7). I think that what Hoffmann did is to say that the kind of trust which arose in the case itself is an express trust. Now, this means either that he didn't really direct his mind to or enter onto the Quistclose debate or that he thought that that the Quistclose trust is an express trust. I think the first explanation is the more plausible. Either way, his approach is fundamentally different from Millett's resulting trust approach. Confusingly, Hutton agreed with the reasons of both Hoffmann and Millett (para 25), but since their approaches are so different, I can get nothing from this. If this is right, then Millett's views do not form part of the ratio of Twinsectra. Consequently, the Court of Appeal in the subsequent Carlton v Goodman [2002] EWCA Civ 545 was quite right to treat the whole thing as an open question. I'd like to know what others think on this issue. Eoin. 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 . ____________________________________________________________________ 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: Wed, 10 Jul 2002 16:00:38 +1000 Reply-To: "Thomas, David" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Thomas, David" Subject: Re: Twinsectra and Quistclose MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Mallesons Stephen Jaques www.mallesons.com Confidential communication At [2002] 2 WLR 806 Lord Hoffman writes: "[I]f Mr Yardley went bankrupt before the money had been so applied, it would not have formed part of his estate, as it would have done if Sims had held it in trust for him absolutely. The undertaking would have ensured that Twinsectra could get it back. It follows that Sims held the money in trust for Twinsectra, but subject to a power to apply it by way of loan to Mr Yardley in accordance with the undertaking." At [2002] 2 WLR 830 Lord Millett writes: "Contrary to the opinion of the Court of Appeal, it is the borrower who has a very limited use of the money, being obliged to apply it for the stated purpose or return it. He has no beneficial interest in the money, which remains throughout in the lender subject only to the borrower's power or duty to apply the money in accordance with the lender's instructions". When compared in this way, Lord Hoffman and Lord Millett appear to have characterised the trust in similar, rather than fundamentally different, terms. Lord Hutton's expression of approval for the reasoning of both Lord Millett and Lord Hoffman then makes perfect sense. David Thomas Mallesons Stephen Jaques Sydney T +61 2 9296 2374 F +61 2 9296 3999 david.thomas@mallesons.com -----Original Message----- From: Eoin O'Dell [mailto:eodell@TCD.IE] Sent: Tuesday, 9 July 2002 9:26 AM To: ENRICHMENT@LISTS.MCGILL.CA Subject: [RDG:] Twinsectra and Quistclose Hello all, I have just read Alistair Speirs "Escape from the Tangled Web" casenote on the House of Lords judgment in Twinsectra v Yardley [2002] UKHL 12. Alistair writes that their lordships "were unanimous in holding that the Court of Appeal was correct to reverse Carnwath J on the question of whether the loan, coupled with Sims' undertaking, created a trust. The only speech to provide a detailed analysis of this question was that of Lord Millett (HL, paras. 68-103) ... Lord Hoffmann's less detailed analysis reached the same conclusions as Lord Millett's and is in no way inconsistent with it (see HL, para.13)". To the extent that Alistair is arguing here that Millett wrote for a unanimous House on the issue of the Quistclose trust, I don't think that I can agree. In particular, I think that Millett and Hoffmann were doing very different things. I agree with Alistair that Millett chose to treat the trust as a Quistclose trust, and that he took an essentially intentionalist approach to it which he then undercut it all by insisting that it is resulting on Chambers pattern. However - as I read Twinsectra, and here I would differ from Alistair - I think that _only_ Millett chose to treat it as a Quistclose trust. In my view, Hoffmann treated the relevant trust simply as express (see paras 13-17; for example, according to Hoffmann in para 13, in a classic express trust comment, everything turned on the terms of the undertaking) and, as Alistair himself observes, in this Slynn and Steyn concurred (see paras 2 and 7). I think that what Hoffmann did is to say that the kind of trust which arose in the case itself is an express trust. Now, this means either that he didn't really direct his mind to or enter onto the Quistclose debate or that he thought that that the Quistclose trust is an express trust. I think the first explanation is the more plausible. Either way, his approach is fundamentally different from Millett's resulting trust approach. Confusingly, Hutton agreed with the reasons of both Hoffmann and Millett (para 25), but since their approaches are so different, I can get nothing from this. If this is right, then Millett's views do not form part of the ratio of Twinsectra. Consequently, the Court of Appeal in the subsequent Carlton v Goodman [2002] EWCA Civ 545 was quite right to treat the whole thing as an open question. I'd like to know what others think on this issue. Eoin. 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 . ____________________________________________________________________ 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, 16 Jul 2002 19:30:25 +0100 Reply-To: Arianna Pretto Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Arianna Pretto Subject: breach of trust Comments: cc: richard@hartpub.co.uk Content-Type: text/plain Mime-Version: 1.0 Richard Hart has asked me to tell the members of the RDG that he is offering them 'Breach of Trust' with a 20% discount on the cover price. His email is richard@hartpub.co.uk The book was published earlier on this month. There are many chapters of special RDG interest, not least Charles Mitchell's definitive study of 'Knowing Assistance', Lionel Smith's analysis of 'Transfers' in breach and Robert Chambers' very important account of trustees' liability. As a co-editor I have an interest to declare. Arianna ____________________________________________________________________ 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, 16 Jul 2002 23:13:16 +0000 Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: A novel application of unjust enrichment? MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: quoted-printable Unjust enrichment, an interesting case. I have a case which is proceeding quite happily on other grounds, namely ne= gligent misrepresentation. However during the course of reading James Ede= lman's book on Gain Based Damages, it occurred to me that it may also fit= into the sphere of unjust enrichment. Here is the situation: A is a tenant. B is his son. C is a local council which owned a number of p= roperties let as secure tenancies under the 1985 housing act. D is a hous= ing association to whom the properties were transferred under provisions = in the 1985 act making it a primarily 1988 housing act tenancy. The resul= ting tenancy granted to A allowed for rights of succession from which if = B was informed could have benefited him if he exercised them correctly, i= n which case he would have the benefit of a valuable tenancy, with the ri= ght to buy at a substantial discount. That much is common ground. There are disputes as to the detail of what fol= lowed, and I won't go into that. However the following is also not in dis= pute. A died. For what ever reason B did not exercise his rights correctly. As a = result D ended up with a windfall, in that the property it owned with cer= tain costly obligations it now owned with out those obligations. Further = more the value of B's assets took a substantial hit in that he no longer = enjoyed valuable rights. All these rights have finite financial value, an= d they are equivalent in that the value B has lost D has gained. The question is then has D become unjustly enriched at the expense of B ass= uming that there is no clear attributable fault. It is B's failure to act= for whatever reason that has caused the transfer of value. If this enric= hment is unjust can B recover his losses through the doctrine of unjust e= nrichment? Any thoughts? Kind regards Benedict White ____________________________________________________________________ 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: Wed, 17 Jul 2002 12:49:56 +0100 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: A novel application of unjust enrichment? Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" >X-Mailer: NetMail ModWeb Module >X-Sender: benedict >Date: Tue, 16 Jul 2002 23:13:16 +0000 >Reply-To: Benedict White >Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues >From: Benedict White >Subject: [RDG:] A novel application of unjust enrichment? >To: ENRICHMENT@LISTS.MCGILL.CA Isn't D's enrichment justified by the terms of the Housing Act? That says (in effect), No notice - or whatever -, no valuable tenancy. Is there anything unjust about relying on the clear terms of a statute, which would be nullified if B had a claim? Andrew > >Unjust enrichment, an interesting case. > >I have a case which is proceeding quite happily on other grounds, namely negligent misrepresentation. However during the course of reading James Edelman's book on Gain Based Damages, it occurred to me that it may also fit into the sphere of unjust enrichment. > >Here is the situation: > >A is a tenant. B is his son. C is a local council which owned a number of properties let as secure tenancies under the 1985 housing act. D is a housing association to whom the properties were transferred under provisions in the 1985 act making it a primarily 1988 housing act tenancy. The resulting tenancy granted to A allowed for rights of succession from which if B was informed could have benefited him if he exercised them correctly, in which case he would have the benefit of a valuable tenancy, with the right to buy at a substantial discount. > >That much is common ground. There are disputes as to the detail of what followed, and I won't go into that. However the following is also not in dispute. > >A died. For what ever reason B did not exercise his rights correctly. As a result D ended up with a windfall, in that the property it owned with certain costly obligations it now owned with out those obligations. Further more the value of B's assets took a substantial hit in that he no longer enjoyed valuable rights. All these rights have finite financial value, and they are equivalent in that the value B has lost D has gained. > >The question is then has D become unjustly enriched at the expense of B assuming that there is no clear attributable fault. It is B's failure to act for whatever reason that has caused the transfer of value. If this enrichment is unjust can B recover his losses through the doctrine of unjust enrichment? > >Any thoughts? > >Kind regards > > >Benedict White > >____________________________________________________________________ > 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: Wed, 17 Jul 2002 13:03:31 +0000 Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: Re: A novel application of unjust enrichment? MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: quoted-printable >> Isn't D's enrichment justified by the terms of the Housing Act? >> There are two housing acts which have some effect, the 1985 and 1988 acts. = D had the benefit of the property transfered to him by C as a result of a= consultation process in which A took part. In order for the tarnsfer to = take place a majority of tenants had to vote yes. This led to a tenacy ag= reement which gave B rights in the event of A's death and so had provisio= ns in it made with B specificly in mind. These terms are above and beyond= the statutary rights under the 1988 act which then governed most of the = provisions of the tenancy. So in that sense no D is not justified under t= he housing act. Kind regards Benedict White ____________________________________________________________________ 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: Wed, 17 Jul 2002 09:29:31 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: A novel application of unjust enrichment? In-Reply-To: <1026911011.58021ff7benedict@myrealbox.com> MIME-version: 1.0 Content-type: text/plain; format=flowed; charset=us-ascii My thought would be that there is no answer of principle to this question, but everything turns on a matter of inference as to the intention of the legislature. I recently wrote something which included this passage: "Frequently the law of unjust enrichment reverses the effects that seem to be dictated by other parts of the law. In a mistaken payment, for example, the law of property says that the money belongs to the payee. Restitution for unjust enrichment reverses this. It must be right that this happens sometimes; it is the function of unjust enrichment. Unjust enrichment seems to contradict the disposition given by property law, but the contradiction is not significant because unjust enrichment is not undermining any significant policy that the property disposition protects. The property disposition makes it clear that the defendant has been enriched, and the disposition might have important implications for third parties, but it is not undermined by the existence of an obligation to make restitution of an equivalent sum. Sometimes, however, the legal disposition that creates the defendant's enrichment goes beyond that role, and also provides a legal justification for the enrichment. For example, if the plaintiff enriches the defendant by providing building services, but the contract is void due to a lack of formality, there is a serious question whether the disposition that makes the contract void should also go further and exclude any claim in unjust enrichment. It is largely a matter of inference to determine on which side of the line a particular case falls. This phenomenon has been particularly noticed in the literature as regards illegal and unenforceable transactions, but in fact it is a general concern. It particularly applies to defective wills. The law of wills identifies, as a matter of form, what counts as the testator's intentions as to the disposition of his property. This can lead to the enrichment of the "wrong" beneficiaries. If it be proven that the testator had changed his mind before death, we might think that the enrichment was unjust. But a contrary argument would be that the legislative decision about the form of wills goes beyond determining who gets the property (in a way which might be reversed by a claim in unjust enrichment), and actually implies that this person or persons get the benefit in a way that the law of unjust enrichment is not to reverse." Comments welcome. I think the Germans have got somewhat further along this analytical road than the common lawyers. So in the case posited by Benedict White, it is not enough to say that B did not intend to enrich D, nor is quite enough to say that D's enrichment is justified by the Act. We have to figure out (almost certainly as a matter of inference) whether the statutory disposition which gives the result that D is enriched was intended also to proof that enrichment against the kind of claim B wants to make. The same thing happens when a person mistakenly discharges a mortgage and promotes a subsequent mortgagee. The statute clearly says the subsequent mortgagee now has priority. The Ontario CA has said this provision is not intended to oust a claim in ue and does not do so. Lionel At 01:03 PM 17/7/02 +0000, Benedict White wrote: > >> >Isn't D's enrichment justified by the terms of the Housing Act? > >> >There are two housing acts which have some effect, the 1985 and 1988 acts. >D had the benefit of the property transfered to him by C as a result of a >consultation process in which A took part. In order for the tarnsfer to >take place a majority of tenants had to vote yes. This led to a tenacy >agreement which gave B rights in the event of A's death and so had >provisions in it made with B specificly in mind. These terms are above and >beyond the statutary rights under the 1988 act which then governed most of >the provisions of the tenancy. So in that sense no D is not justified >under the housing act. > >Kind regards > > >Benedict White ____________________________________________________________________ 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: Wed, 17 Jul 2002 14:09:03 +0000 Reply-To: Benedict White Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Benedict White Subject: Re: A novel application of unjust enrichment? MIME-Version: 1.0 Content-Type: text/plain; charset="UTF-8" Content-Transfer-Encoding: quoted-printable -----Original Message----- From: Lionel Smith To: ENRICHMENT@LISTS.MCGILL.CA Date: Wed, 17 Jul 2002 09:29:31 -0400 Subject: Re: [RDG:] A novel application of unjust enrichment? >> My thought would be that there is no answer of principle to this question, but everything turns on a matter of inference as to the intention of the legislature.=20 >> Interesting points. >> So in the case posited by Benedict White, it is not enough to say that B did not intend to enrich D, nor is quite enough to say that D's enrichment is justified by the Act. We have to figure out (almost certainly as a matter of inference) whether the statutory disposition which gives the result that D is enriched was intended also to proof that enrichment against the kind of claim B wants to make.=20 >> It is difficult to see into the mind of politicians, but as there are two m= ain acts, kets look at them. On the one hand there is the 1985 act. This eems clearly there to give righ= ts to council house tenants particularly the right to buy. It also has pr= ovision for the transfer of properties to housing associations if the ten= ants so desire. The 1988 act brings along a new form of tenancy (assured) which provides mo= re housing association friendly terms, particularly as far as succession = rights are concearned (Which is what B is fighting for). It also says tha= t a transferred tenancy cannot be a secure tenancy. So upon transfer the = legislator clearly intended to strip B of some of his rights.=20 However, in order to make the transfer happen, there had to be a consultati= on process, in which promises were made, including a promise to treat the= succession rights as per the 1985 act. There also had to be approval of = the Secretary of State for the Enviroment, and follows things like tenant= s garantees which all also pointed to preserving succession rights simila= r to the 1985 act, rather than the more restrictive 1988 act (Spouse only= succession rights). So a vote of the tenants was made on the basis of th= e promises made in the consultation document. Those include B's right of = succession. So the position of the legislature is not clear. What does seem clear to me is that if the consultation document is seen to = be not worth the paper it is written on then it is going to become increa= singly difficult to get these transfers to happen, which would be against= the public interest. Also there is an implied promise which has been broken. It cannot have been= the intent of parliament that this happen. Kind regards Benedict White ____________________________________________________________________ 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, 25 Jul 2002 21:47:34 +0100 Reply-To: Steve Hedley Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Steve Hedley Subject: SPTL 2002 - Restitution section Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Speakers: Helen Scott (Oxford) "Mistake of Law: A comparison between the English and South African approaches" Stephen Watterson (Bristol) "Election and Restitution" Rafal Zakrzewski (Oxford) "The Classification of Remedies" Eoin O'Dell (Dublin) "Riders on the Storm: The Many Quistclose Trusts." Convenor: Francis Rose Faculty of Law, University of Bristol, Wills Memorial Building, Bristol BS8 1RJ Francis.D.Rose@bris.ac.uk Conference venue: De Montfort University, Leicester Monday Sept 9th 2pm - Tuesday 10th 3.30pm Further details at: http://www.soton.ac.uk/~law/sptlsls2002/groupa_h.html Steve Hedley ============================================= FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE e-mail : steve.hedley@law.cam.ac.uk ansaphone : +44 1223 334931 www.stevehedley.com fax : +44 1223 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: Wed, 31 Jul 2002 13:59:18 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Interest on restitutionary awards; change of position Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Two new(-ish) cases which may interest members of the group: In Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600, NSWCA, Mason P takes a leaf from Lord Goff's book and approves his own discussion of interest awards in restitutionary claims in Mason and Carter. In Niru Battery Manufacturing Co v Milestone Trading Ltd [2002] EWHC 1425 (Comm), Moore-Bick J breathes new life into the good faith / bad faith / actual knowledge / constructive knowledge / duty to enquire / negligence distinctions beloved of all knowing receipt / dishonest assistance enthusiasts, in the course of discussing the good faith requirement for the C of P defence. His judgment is available on-line at: http://www2.bailii.org/~jury/cases/EW/EWHC_Commercial_2002_1425.html The best bit is para 135: 'In the light of these observations, and having regard to the nature of the principles underlying the right to restitution in the case of a mistaken payment and the defence of change of position, I do not think that dishonesty in the sense identified in Twinsectra Ltd v Yardley is the sole criterion of the right to invoke the defence of change of position. I do not think that it is desirable to attempt to define the limits of good faith; it is a broad concept, the definition of which, insofar as it is capable of definition at all, will have to be worked out through the cases. In my view it is capable of embracing a failure to act in a commercially acceptable way and sharp practice of a kind that falls short of outright dishonesty as well as dishonesty itself. The factors which will determine whether it is inequitable to allow the claimant to obtain restitution in a case of mistaken payment will vary from case to case, but where the payee has voluntarily parted with the money much is likely to depend on the circumstances in which he did so and the extent of his knowledge about how the payment came to be made. Where he knows that the payment he has received was made by mistake, the position is quite straightforward: he must return it. This applies as much to a banker who receives a payment for the account of his customer as to any other person: see, for example, the comment of Lord Mersey in Kerrison v Glyn, Mills, Currie & Co. (1912) 81 L.J.K.B. 465 (H.L.) at page 472. Greater difficulty may arise, however, in cases where the payee has grounds for believing that the payment may have been made by mistake, but cannot be sure. In such cases good faith may well dictate that an enquiry be made of the payer. The nature and extent of the enquiry called for will, of course, depend on the circumstances of the case, but I do not think that a person who has, or thinks he has, good reason to believe that the payment was made by mistake will often be found to have acted in good faith if he pays the money away without first making enquiries of the person from whom he received it. ' Niru is also interesting because counsel picked up on Lord Steyn's statement in Royal Brompton Hospital NHS Trust v Hammond [2002] UKHL 14, that Auld LJ was wrong in the Friends' Provident case to hold that contribution claims lie under the Civil Liability (Contribution) Act 1978 between parties, at least one of whom owes a restitutionary liability rather than a wrong-based liability. At para 150, Moore-Bick J adjourned for further argument on the implications of this. Personally I suspect that that the implications of it are that the parties will be left high and dry where one of them owes a wrong-based liability and the other a liability in UE, since claims between wrongdoers do not lie at common law, and claims between people who are not wrongdoers do not lie under the 1978 Act. Best wishes to all, 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: Wed, 31 Jul 2002 17:43:18 +0100 Reply-To: Eoin O'Dell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Eoin O'Dell Subject: Unjust enrichment, Irish style - The decision on appeal Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Hello all Members of the list might recall my previous messages about an interesting Irish claim of unjust enrichment by wrongdoing: That message concerned Dun Laoghaire-Rathdown Co Co v Shakleton (High Court, 23 January 2002; archived on Steve Hedley=92s site at ). The applicant had argued that if the Flood Tribunal =96 which was investigating the circumstances in which the land was rezoned =96 found that the rezoning had come about as a result of improper financial contributions, the payment of any compensation would amount to the unjust enrichment of the landowners. In the High Court, O=92Sullivan J granted an interlocutory injunction to the applicant - pending the final report of the Flood Tribunal - restraining the first named respondent from proceeding with an arbitration to determine the amount of compensation payable by the applicants in respect of their compulsory acquisition of the landowners=92 property. The respondents announced that they would appeal: The Supreme Court has recently allowed the appeal: (17 June 2002, ex tempore, archived on Steve Hedley=92s site at ). In Keane CJ=92s view, the plaintiff had failed to show that there was any case at all to be tried between the parties. Any claim of unjust based on the possible outcome of a tribunal sometime in the future was too vague. Eoin. 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 .