======================================================================= == Date: Tue, 3 Jan 2006 12:27:42 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Tracing in the Ont CA Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Re Graphicshoppe Ltd. [2005] O.J. No. 5184, 2005 CanLII 45183, online at http://www.canlii.org/on/cas/onca/2005/2005onca10831.html deals with whether the lowest intermediate balance rule can eliminate a trust claim in a bankruptcy of the trustee. The decision has some Canadian constitutional elements, no doubt of less interest to an international audience (a line of cases on whether provincial deemed trusts can create priority in bankruptcy, which is a federal field). It seems to me, however, that these are basically beside the point. I think that the majority decision represents a re-affirmation of the importance of the lowest intermediate balance rule in tracing through bank accounts, and an attempt perhaps to distance the Court somewhat from its earlier decision in LSUC v TD Bank (1998) 42 OR (3d) 257. 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, . ======================================================================= == Date: Wed, 4 Jan 2006 17:23:00 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Unjustly enriched executive Mime-version: 1.0 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable "Former HealthSouth Corp. chief executive officer Richard Scrushy has been ordered by a judge to repay his former company more than $47.8 million in bonuses, according to published reports. ... Judge Allwin E. Horn III of Jefferson County Circuit Court in Birmingham, who made the ruling as part o= f a summary judgment in a shareholder lawsuit, determined that Scrushy is not entitled to the payments =8B whether or not he participated in the fraud or knew about the scheme." "While the company initially reported profits during the period, Horn wrote= , HealthSouth really lost money, making Scrushy and other executives ineligible for any bonuses." "'Knowledge is immaterial under the law of unjust enrichment,' the judge reportedly wrote. 'Scrushy was unjustly enriched by these payments to the detriment of HealthSouth. And to allow Scrushy to retain the benefit of these payments would be unconscionable.' " http://www.cfo.com/article.cfm/5354197 http://www.nytimes.com/aponline/business/AP-HealthSouth-Scrushy.html 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, . ======================================================================= == Date: Wed, 4 Jan 2006 20:36:51 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: VL for breach of duty of loyalty Comments: To: obligations@uwo.ca Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit 3464920 Canada Inc. v. Strother, 2005 BCCA 385 was released in July 2005 and is available at http://www.canlii.org/bc/cas/bcca/2005/2005bcca385.html It involved a breach of fiduciary duty by a lawyer (Strother) at one of Vancouver's leading firms. There was a conflict inasmuch as he advised his client that a change in tax law made the client's business no longer sustainable; he then took a financial interest in an undertaking in the same area. The client, who had suffered no loss, sued for the profits (said to exceed $60 million) and won against the lawyer (2005 BCCA 35, http://www.canlii.org/bc/cas/bcca/2005/2005bcca35.html). In the later holding, the client argued that the firm was liable as well. The careful judgment holds that the firm was not directly liable as a knowing assistant. Was it vicariously liable for the profits acquired by Strother? In general, no, since the profits were not acquired in the ordinary course of the partnership's business and such an order would go beyond disgorgement. But the firm had to return to the client all fees (not disbursements) it had paid to the firm after the breach, and it had to disgorge to the client all of the fees it had received from the newly formed entities. Leave to appeal to the SCC was granted in December 2005 from both CA holdings (against the lawyer & entities, and against the firm). 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, . ======================================================================= == Date: Wed, 18 Jan 2006 15:52:59 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Altruism in Private Law/Subrogation Comments: To: "obligations@uwo.ca" Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Recently published by OUP is a monograph, Altruism in Private Law, by Jeroen Kortmann. It is a comparative study of liability for non- feasance and of the legal regulation of unrequested intervention in another's affairs. Also, although it goes back a little bit, I have only recently seen Johann Dieckmann's article in (2004) 8 Edinburgh Law Review 329, "Scots Influence on English Law: the Guarantor's Right to Derivative Recourse (Subrogation)". This comparative study contrasts the unjust enrichment approach to subrogation with other understandings. 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, . ======================================================================= == Date: Thu, 19 Jan 2006 11:06:11 +0000 Reply-To: Michael Rush Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Michael Rush Subject: Restitution of money paid under a void contract In-Reply-To: <1122989855.42ef771f33b54@impmail.kcl.ac.uk> Content-Type: text/plain Content-Disposition: inline MIME-Version: 1.0 Content-Transfer-Encoding: base64 QSBkZWNpc2lvbiBvZiB0aGUgU3VwcmVtZSBDb3VydCBvZiBTb3V0aCBBdXN0cmFsaWEsIEJ s ZWJ5IEosIHdhcyB5ZXN0ZXJkYXkgDQpoYW5kZWQgZG93biBpbiB0aGUgY2FzZSBvZiBFdGh u aWMgRWFydGggdiBRdW9pbiBUZWNobm9sb2d5IFsyMjA2XSBTQVNDIDcuDQoNClF1b2luIFR l Y2hub2xvZ3kgKFFUKSBlbnRlcmVkIGludG8gYSBzYWxlIG9mIGJ1c2luZXNzIGFncmVlbWV u dCB3aXRoIEV0aG5pYyANCkVhcnRoIChFRSkuIFRoZSB0b3RhbCBwdXJjaGFzZSBwcmljZSB 3 YXMgJDM5NiwwMDAuIFR3byBpbml0aWFsIHBheW1lbnRzLCANCnRvdGFsaW5nICQxNTAsMDA w IHdlcmUgcGFpZCBieSBFRSB0byBRVC4gDQoNCkEgc3Vic2VxdWVudCB2YXJpYXRpb24gb2Y g dGhlIGNvbnRyYWN0IHJlbmRlcmVkIHRoZSBhZ3JlZW1lbnQgdm9pZCB1bmRlciBzIDYNCig x KSBMYW5kIGFuZCBCdXNpbmVzcyBBY3QgMTk5NCAoU0EpLiBUaGF0IHNlY3Rpb24gc3RhdGV z OiBhIGNvbnRyYWN0IGZvciB0aGUgDQpzYWxlIG9mIGEgYnVzaW5lc3MgdGhhdCBwcm92aWR l cyBmb3IgdGhlIHBheW1lbnQgb2YgcGFydCBvZiB0aGUgcHVyY2hhc2UgcHJpY2UgDQpvZiB 0 aGUgYnVzaW5lc3MgKGV4Y2VwdCBhIGRlcG9zaXQpLCBiZWZvcmUgdGhlIGRhdGUgb2Ygc2V 0 dGxlbWVudCwgaXMgdm9pZC4NCg0KRUUgYnJvdWdodCBhIGNsYWltIHNlZWtpbmcgcmVzdGl 0 dXRpb24gb2YgdGhlICQxNTAsMDAwIGl0IGhhZCBwYWlkLiBJdCByZWxpZWQgDQpvbiB0aGU g YXV0aG9yaXRpZXMgb2YgRGF2aWQgU2VjdXJpdGllcywgUGF2ZXkgJiBNYXR0aGV3cyBhbmQ g QmFyY2xheXMgQmFuayB2IA0KU2ltbXMgKGFtb25nIG90aGVycykuIA0KDQpUaGUgZm9sbG9 3 aW5nIHBvaW50cyBvZiBpbnRlcmVzdCBjb3VsZCBiZSBzYWlkIHRvIGVtYW5hdGUgZnJvbSB 0 aGUgZGVjaXNpb246DQoNCjEuIFs2Ml0gRmF1bHQgaW4gdW5qdXN0IGVucmljaG1lbnQgY2F z ZXMgaXMgaXJyZWxldmFudC4NCg0KMi4gWzYzXSBUaGUgaW1wbGllZCBjb250cmFjdCB0aGV v cnkgaXMgdG8gYmUgcmVqZWN0ZWQgaW4gZmF2b3VyIG9mIHRoZSANCnVuaWZ5aW5nIGxlZ2F s IGNvbmNlcHQgb2YgdW5qdXN0IGVucmljaG1lbnQuDQoNCjMuIFs2NV0gQSBjbGFpbSBpbiB 1 bmp1c3QgZW5yaWNobWVudCB3aWxsIGJlIGVzdGFibGlzaGVkIGlmIHRoZSBwbGFpbnRpZmY g DQplc3RhYmxpc2hlcyB0aGF0IHRoZSBkZWZlbmRhbnQgaGFzIGJlZW4gZW5yaWNoZWQsIGF 0 IHRoZSBleHBlbnNlIG9mIHRoZSANCnBsYWludGlmZiwgcHVyc3VhbnQgdG8gYW4gZWxlbWV u dCBvZiBpbmp1c3RpY2UuDQoNCjQuIFs2OV0gUGVyIFByb2Zlc3NvciBCdXJyb3dzIGFuZCB H b2ZmIEogaW4gQmFyY2xheXMgQmFuaywgY2xhaW1zIGZvciByZWNvdmVyeSANCm9mIG1vbmV 5 IHBhaWQgdW5kZXIgYSB2b2lkIGNvbnRyYWN0IGFyZSBiZXN0IHRyZWF0ZWQgYXMgaW5zdGF u Y2VzIG9mIG1pc3Rha2UgDQpvciBhcyBiYXNlZCBvbiBhIHBvbGljeSBtb3RpdmF0ZWQgZmF j dG9yLCBub3QgZmFpbHVyZSBvZiBjb25zaWRlcmF0aW9uLg0KDQo1LiBbNzEtNzRdIEVFknM g Y2xhaW0gYmFzZWQgb24gbWlzdGFrZSBzaG91bGQgZmFpbCBiZWNhdXNlIHdoZW4gdGhlIHR 3 byANCnBheW1lbnRzIHdlcmUgbWFkZSB0aGUgY29udHJhY3Qgd2FzIGVuZm9yY2VhYmxlLiB U aGUgb2JsaWdhdGlvbiB0byBwYXkgdGhlIA0KcHVyY2hhc2UgcHJpY2Ugb25seSBjZWFzZWQ g dXBvbiBhZ3JlZW1lbnQgb2YgYSBzdWJzZXF1ZW50IHZhcmlhdGlvbiBvZiB0aGUgDQpjb25 0 cmFjdC4NCg0KNi4gWzc4LTg0XSBUaGVyZSB3YXMgbm8gZmFpbHVyZSBvZiBjb25zaWRlcmF 0 aW9uLg0KDQo3LiBbODUtODddIElmIGFuIHVuanVzdCBmYWN0b3Igd2VyZSBtYWRlIG91dCw g UVQgd291bGQgbm9uZXRoZWxlc3MgYmUgZW50aXRsZWQgDQp0byByZWx5IG9uIHRoZSBkZWZ l bmNlIG9mIGNoYW5nZSBvZiBwb3NpdGlvbiAoaXQgaGFkIHBhcnRlZCB3aXRoIGJ1c2luZXN z IA0KYXNzZXRzIGFuZCBleHRlbmRlZCB0aW1lIGZvciBjb21wbGV0aW9uIGZvbGxvd2luZyB y ZWNlaXB0IG9mIHRoZSB0d28gcGF5bWVudHMgDQpmcm9tIEVFKS4NCg0KDQpUaGUgZGVjaXN p b24gY2FuIGJlIGZvdW5kIGF0IA0KaHR0cDovL3d3dy5hdXN0bGlpLmVkdS5hdS9hdS9jYXN l cy9zYS9TQVNDLzIwMDYvNy5odG1sIA0KDQpNaWNoYWVsDQo= ======================================================================= == Date: Fri, 27 Jan 2006 11:57:28 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_1846591484==_.ALT" --=====================_1846591484==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed The question has often arisen where money has been paid as tax which is not due, whether a common law claim in UE to recover the money is expressly or impliedly excluded by a statute which imposes a regime to resolve disputes between the parties. A similar issue has now arisen in relation to a claim to recover money mistakenly overpaid to a sewerage undertaker in Ministry of Defence v Thames Water Utilities Ltd [2006] EWHC 66 (TCC) - on-line at: http://www.bailii.org/ew/cases/EWHC/TCC/2006/66.html CM Professor Charles Mitchell 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, . --=====================_1846591484==_.ALT Content-Type: text/html; charset="us-ascii" The question has often arisen where money has been paid as tax which is not due, whether a common law claim in UE to recover the money is expressly or impliedly excluded by a statute which imposes a regime to resolve disputes between the parties.  A similar issue has now arisen in relation to a claim to recover money mistakenly overpaid to a sewerage undertaker in Ministry of Defence v Thames Water Utilities Ltd [2006] EWHC 66 (TCC) - on-line at: http://www.bailii.org/ew/cases/EWHC/TCC/2006/66.html

CM


Professor Charles Mitchell
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 <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. --=====================_1846591484==_.ALT--