======================================================================= == Date: Tue, 7 Feb 2006 09:42:36 -0500 Reply-To: "lionel.smith" Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "lionel.smith" Subject: Inaugural Lecture Comments: To: "obligations@uwo.ca" Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit With apologies for cross-posting, and with warm congratulations to Charles, I would like to announce that Professor Charles Mitchell of King's College London will give his inaugural lecture at King's on 21 February, at 6 pm, in the Great Hall on the Strand campus. The title is 'Quantifying Fiduciary Gains'. 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: Fri, 10 Feb 2006 12:48:35 +1100 Reply-To: Jonathon Moore Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Jonathon Moore Subject: The Defence of "Good Consideration" to a claim in unjust enrichment MIME-Version: 1.0 Content-Type: text/plain; format=flowed; charset="iso-8859-1"; reply-type=original Content-Transfer-Encoding: 7bit A statute says that a tenant is "not liable to pay rent" until he receives a disclosure statement from his landlord. No disclosure statement is provided to a tenant. In ignorance of the statute, the tenant pays rent for some time. When informed of the statute, the tenant sues the landlord seeking to recover all the rent paid on the basis of mistake. The landlord defends the claim, raising one defence only - namely, that the tenant received good consideration for the rent (namely, the use and occupation of the premises). Change of position is not relied on by the landlord. Nor does the landlord argue that, as a condition of recovery, the tenant must give counter-restitution for the value of the benefit he received in return for the rent. Who wins? According to the Court of Appeal of Victoria, the landlord: Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 http://www.austlii.edu.au/au/cases/vic/VSCA/2006/6.html. Two of the judges (Chernov and Ashley JJA) say that the defence of good consideration succeeds. The availability of the defence was not excluded by the terms of the statute. The third judge, Nettle JA, seems to say that the tenant had no claim in the first place, because there was no total failure of consideration. I agree with the majority. Total failure is surely dead. All three judges seem to believe (wrongly) that Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 was speaking for the entire Court, for there is much reference in Ovidio Carrideo to Gummow J's "unconscionability", anti-unjust enrichment, explanation of restitutionary claims. I have tried elsewhere to show that Gummow J's view is against High Court and House of Lords authority: (2005) 29 MULR 573. As to the defence of good consideration, until this case I had some real doubts about the existence of such a defence. The proper analysis, I thought, was that either: (a) the defendant had available the defence of change of position; and / or (b) the plaintiff was required to make counter-restitution. But two things suggest that the defence exists. First, it seems to me that the landlord should have a defence without having to positively show a change of position on the faith of the receipt of rent. Such a change of position might be established by evidence from the landlord that "when I got the rent, I thought was entitled to it, so I let the tenant keep occupying the premises", or "if I had not been paid the rent, I would have found out why, and I then would have given the tenant a disclosure statement". But should such evidence really be necessary in order for the landlord to succeed? Secondly, several cases talk of the existence of a separate defence of good consideration - Barclays Bank Ltd v W J Simms Son & Cooke (Southern) Ltd [1980] QB 677 at 695 per Goff J; ANZ v Westpac (1988) 164 CLR 662 at 673; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 378-9. It might be possible to say that the true principle in play is counter- restitution. But it may be better simply to say that, when a benefit is given to the plaintiff by the defendant in return for the money or thing that the plaintiff seeks to recover in unjust enrichment, the defendant has a defence of good consideration to the extent of the value of that benefit. Regards Jonathon Moore PS. Disclaimer of interest: I was junior counsel for the landlord, led by Cliff Pannam QC, on appeal (neither of us appeared for the landlord at trial). It is possible, although, because of a change in the legislation, unlikely, that the tenant will seek to bring the case before the High Court of Australia. ____________________________________________________________________ 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: Fri, 17 Feb 2006 12:40:48 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: wrotham again Comments: To: obligations@uwo.ca Mime-Version: 1.0 Content-Type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: quoted-printable Colleagues -- In the midst of a grey February, some good sense on, & serious analysis of, Wrotham v Parkside, AG v Blake et al in Peter Smith J's long judgment in World Wide Fund for Nature (formerly World Wildlife Fund) v World Wrestling Federation Entertainment Inc [2006] EWHC 184 (Ch) (just out on BAILII). =09Not surprisingly this started many years ago as a trademark / passing off spat between the wildlifers and the wrestlers over the use of all-too-memorable initials. The parties compromised, the wrestlers agreeing not to use the WWF initials or their logo in the course of business, except in particular circumstances. The wrestlers later broke that agreement (see the proceedings at [2000] FSR 32), and there was an enquiry as to damages. In the event the wildlifers put their case on the basis of dilution of the exclusivity of =93WWF=94 and tarnishment by association: faced with the difficulty of proving loss, they asked for a buyout price =E0 la Wrotham Park. The wrestlers said, no possibility. This was a bog-standard breach of contract case; if the wildlifers couldn't prove loss that was just tough; and they shouldn't be allowed to sneak under the wire by recharacterising their claim as a Wrotham Park one. =09Peter Smith J sided with the wildlifers, at least on principle (though he told them to get their pleading act together). He concluded (i) that pace Lord Steyn, damages under Wrotham were essentially compensatory, not unjust enrichment-based; (ii) that since Blake they were available, fairly generally, as a possible remedy in any breach of contract where =93the more traditional bases for compensating an innocent person for breach of contract would provide no or an illusory result.=94 (para 137); (iii) because Wrotham damages were compensatory, the intentionality or other quality of the defendant's wrongdoing was irrelevant (para 169 et seq); and (iv) that they were available, not as of right, but as a matter of judicial discretion (para 137), and hence the court could take into account matters such as whether delay by the claimant in asking for them had lulled the defendant into a false sense of security (para 174). Of these, (i) to (iii) seem spot-on. I'm not so sure about (iv), though. In one way it may make sense to call these damages discretionary =96 i.e. the judge must properly compensate the claimant, but has some leeway in determining what proper compensation is in the individual case. But I can't see why you should take it further than this. We're talking about damages at common law, after all, not an equitable remedy. Furthermore, Peter Smith J said that we give Wrotham damages because traditional damages would provide illusory relief. If so, it seems a little odd that we should tell a claimant that because of the way he has behaved or other discretionary factors, we are going to give him a remedy that is merely illusory after all. In short, elsewhere in the law of damages there's no rule that bad behaviour by a plaintiff should deprive him of the appropriate measure of compensation; and I can't see any reason to apply one here. Best Anhdrew Andrew Tettenborn Bracton Professor of Law, University of Exeter, England Tel: 01392-263189 (int +44-1392-263189) Fax: 01392-263196 (int +44-1392-263196) Cellphone: 07870-130528 (int +44-7870-130528) Snailmail: School of Law University of Exeter Amory Building Rennes Drive Exeter EX4 4RJ England Lawyer (n): One skilled in circumvention of the law. Litigation (n): A machine which you go into as a pig and come out of as a sausage. - Ambrose Bierce (1906). ____________________________________________________________________ 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, .