======================================================================= == Date: Mon, 1 Jan 2007 09:30:47 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: New books Mime-version: 1.0 Content-type: text/plain; charset="ISO-8859-1" Content-transfer-encoding: quoted-printable With holiday greetings to all, I note the appearance last month of two important books in new editions: Goff & Jones: The Law of Restitution, 7th Edition Professor Gareth Jones Price: =A3275.00 ISBN-10: 0421926007 ISBN-13: 9780421926004 http://www.sweetandmaxwell.co.uk/details?prodid=3D156585&unitid=3D15658 5&search= =3D goff%20jones&format=3Dall&publisher=3Dall&subject=3Dall&from=3D1&to=3D5 0 Cases and Materials on the Law of Restitution, 2nd Edition Andrew Burrows, Ewan McKendrick, and James Edelman Price: =A345.00 (Paperback) ISBN-10: 0-19-929651-0 ISBN-13: 978-0-19-929651-4 http://www.oup.com/uk/catalogue/?ci=3D9780199296514 Congratulations to all the authors and best wishes to everyone for 2007, 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, 3 Jan 2007 13:20:32 +0000 Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: 2 holiday cases MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: quoted-printable A couple of instructive, and I think entirely unexceptionable, UE cases=20 over the holiday period. (1) The first is actually very sad. A company, Farepak, runs a Christmas=20 club. You pay so much per month to Farepak's agents (who duly pay=20 Farepak) and you get a hamper of goodies etc on the big day. But then=20 Farepak goes belly-up in October, owing the Revenue a tidy sum.=20 Britain's third world banking bureaucracy is such that it can't stop its=20 agents paying something like =A31 million received from customers into it= s=20 accounts over the next few days. But it does its best by issuing an=20 immediate "trust deed" declaring trusts over future receipts in favour=20 of the customers. Now, clearly the customers can't have a Christmas hamper: but can=20 they perhaps get their money instead? They argue (1) a Quistclose trust;=20 (2) unconscionability under Neste OY v Barclays; (3) the trust deed; and=20 (4) ex parte James. But not with much success. Quistclose won't run for=20 lack of an obligation of segregated accounting. Neste OY is approved for=20 the sake of argument, but doesn't help because here the agents were=20 Farepak's agents and hence the money was received when the agents=20 themselves got it, ie when company was a going concern. The trust deed=20 is probably an unlawful preference; and there is nothing dishonourable=20 under ex p James in an unsecured creditor getting what the law gives=20 him, even unfairly. See Farepak Foods and Gifts Ltd & Ors v Revenue and=20 Customs & Anor Rev 1 [2006] EWHC 3272 (Ch) (18 December 2006) [2006]=20 EWHC 3272 (Ch) (18 December 2006). (2) Does an underwriter suing a wrongdoer under its subrogation rights=20 have to take steps which it, but not the assured himself, could have=20 taken to mitigate its loss? No, and very rightly so. See Bee v Jenson=20 [2006] EWHC 3359 (Comm) (21 December 2006). I couldn't have put it=20 better myself. Happy New Year Andrew --=20 Andrew Tettenborn MA LLB Bracton Professor of Law University of Exeter, England Tel: 01392-263189 / +44-392-263189 (outside UK) Cellphone: 07870-130528 / +44-7870-130528 (outside UK) Fax: 01392-263196 / +44-392-263196 (outside UK) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England Exeter Law School homepage: http://www.law.ex.ac.uk=20 My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml LAWYER, n. One skilled in circumvention of the law (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, . ======================================================================= == Date: Wed, 3 Jan 2007 16:01:42 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re Diplock with a twist In-Reply-To: <002401c6a11a$bb136570$3198de8b@UEA.AC.UK> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Hi Duncan, I have been holding on to this for a long time ... on the principle of better late than never (and zealous New Year's attempts to take care of to-do lists), here are some thoughts. I assume that by contributories you mean those shareholders with rights to whatever property remains after debts have been paid. First, the application to Diplock of the Diplock principle was actually quite novel as regards who were the claimants. What I mean is that in almost all of the cases in the line on which it was based, the claimants were underpaid creditors. Diplock was novel in allowing the Diplock principle to be used by next of kin. In that light, Butler is the right way round and if anyone is the wrong way round, it is Diplock itself (although I don't think it is). In your case the claim against the non-entitled recipients prima facie belongs to the company, which no longer exists, so the claim I suppose vests in the Crown as bona vacantia when the company is dissolved (CA 1985, s 654; in Canadian federal corporate law, CBCA, s. 228). Former shareholders or liquidators can apply to have such assets transferred to them but this is in the discretion of the Crown. It is possible to revive a corporation when it is discovered that it had assets that were overlooked; under the CBCA the property will generally re-vest in the corporation, although in the UK I think it is still discretionary. I don't think the liquidator could have any right personally, nor could the shareholders. Lionel On 6/7/06 12:39, "Duncan Sheehan (LAW)" wrote: > Dear all > > The situation I have in mind is this. Company X goes bust; liquidator > is appointed and proceeds to gather in and distribute the assets. > Unfortunately he disburses money to people who turn out not to have > been entitled to it (I don't think it matters why). Some time later > after the company is wound up this is discovered. The question is what > claims the contributories might have. Presumably there is a claim > against the liquidator for not doing his job properly if nothing else, > but might the contributories have a claim against the payees, and if > so is that a derivative claim through the liquidator? It seems to me > that this far more obviously analogous to Re Diplock than Butler v > Broadhead [1975] Ch 97, where the claimants were creditors, claiming > that the liquidator hadn't paid them and consequently overpaid the contributories, which strikes me as just the wrong way round. > Templeman J though recognised a possible analogy with Re Diplock, but > in the end said, > > "The conclusion I have reached is that there can be no room for the > operation of the principle of Ministry of Health v. Simpson [1951] > A.C. 251 in respect of a claim for which a proof could have been > entered and for which there has been advertisement, not complied > with..." at 111. And that must be right, but doesn't I think cover my facts. > > Thoughts anybody? It may be that we need not invoke Re Diplock > analogies at all. If so I'd be grateful for the answer from those who > know more about insolvency than me. And apologies for the inevitable cross-posting... > > Duncan > > Dr Duncan Sheehan > Director of Admissions > Norwich Law School > University of East Anglia > Norwich NR4 7TJ > United Kingdom > > ____________________________________________________________________ > 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, . > ____________________________________________________________________ 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, 11 Jan 2007 12:06:26 -0500 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: fiscal chaos RIP Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Released this morning is Kingstreet Investments Ltd. v. New Brunswick (Department of Finance), 2007 SCC 1, in which the SCC decides that a claim for restitution of ultra vires taxes is not a claim in unjust enrichment at all, but purely a matter of public law, which has its own principles. Whether or not that is going a bit far, we see that the fiscal chaos doctrine has been rejected, and so also has the defence of passing on. Good news for the little guy. English text is at http://www.canlii.org/ca/cas/scc/2007/2007scc1.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: Tue, 16 Jan 2007 09:52:31 +0000 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Re: ODG: Restitution and unlawful taxes in the SCC Comments: To: Neil Foster , obligations@uwo.ca Comments: cc: Rebecca_A.Williams@pmb.ox.ac.uk In-Reply-To: <45ACB571.7C79.00F0.0@newcastle.edu.au> Mime-Version: 1.0 Content-Type: multipart/alternative; boundary="=====================_-180935030==_.ALT" --=====================_-180935030==_.ALT Content-Type: text/plain; charset="us-ascii"; format=flowed Dear Neil The thesis that claims to recover money paid as tax which is not due should be mediated exclusively through public law actions and should not form the subject matter of private law actions, was recently rejected by the HL in Deutsche Morgan Grenfell plc v IRC [2006] UKHL 49 http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd061025/mor gan-1.htm The most cogent arguments that such claims should be determined by reference to public law principles have been made by Rebecca Williams, whose book on the subject we await with keen interest: http://www.hartpub.co.uk/books/details.asp?isbn=9781841134147 For a flavour of her approach you can read her commentary on the CA's decision in DMG: http://www.hartjournals.co.uk/klj/volumes/16/issues/1/712.html The SCC decision strongly suggests that counsel in DMG missed a trick when he failed to put these arguments to the court in the HL, which largely confined itself to rejecting the empty formalistic reasoning of the CA. Best wishes Charles P.S. I am copying this to Rebecca in case she wants to add anything. At 11:22 16/01/2007 +1100, Neil Foster wrote: >Dear Colleagues; >I'd be interested to hear from colleagues who know about the law of >unjust enrichment, their views on the decision of the Supreme Court of >Canada in Kingstreet Investments Ltd. v. New Brunswick (Department of >Finance), 2007 SCC 1 (11 Jan, 2007) >http://scc.lexum.umontreal.ca/en/2007/2007scc1/2007scc1.html. >The SCC unanimously holds that, where a Province has exacted money >through an unlawful indirect tax (a liquor tax where the price was >presumably passed on the drinking public), the suppliers who pay the >tax can recover the full amount of the tax paid, along with interest, >but only for the last 6 years (due to the limitation statute). A >defence of "passing on" the tax (ie that the suppliers in fact had >passed on the tax to consumer) was rejected, and the tentative views >put forward in an earlier Australian case, Commissioner of State Revenue (Victoria) v. >Royal Insurance Australia Ltd. (1994) 182 C.L.R. 51, by Brennan J in >the HCA, that customers could presumably recover the amounts they paid >from the suppliers, seems to have been accepted. >{In fact Australian colleagues will recall that almost precisely the >same issues arose after the High Court's decision in Ha v NSW (1997) 71 >ALJR 1080 that State alcohol, cigarette and petrol taxes were invalid >under s 90 of the Australian Constitution. Unlike the Canadian SC in Re >Eurig Estate, [1998] 2 S.C.R. 565 (referred to in Kingstreet at [25]) >the HC held that it could not "suspend" its declaration of invalidity >or engage in prospective over-ruling. For whatever reason the SCC does >not refer to Ha and its sequels- see Roxborough v Rothmans of Pall Mall >Australia Ltd (2001) 208 CLR 516 where retailers were held to be >entitled to recover the tax paid, and Campbells Cash and Carry Pty >Limited v Fostif Pty Limited; Australian Liquor Marketers Pty Limited v >Berney [2006] HCA 41 (30 August 2006) >http://www.austlii.edu.au/au/cases/cth/high_ct/2006/41.html where a >"class action" on behalf of various retailers was upheld as valid. As >will be seen, 10 years later there still seems to be a lot of work for >lawyers in the wake of the HC decision!} Is the decision of the SCC in >Kingstreet relevant to private law? That is precisely one of the >interesting aspects of the decision. The SCC effectively seems to say >that this issue is not to be dealt with under the private law of >"restitution", but is subject to special rules derived from >constitutional principles- [32]-[40]. Strikes me that there are a lot >of interesting issues there to do with the connections between "public" >and "private" law. >Regards >Neil Foster > >Neil Foster >Lecturer >School of Law >Faculty of Business & Law >University of Newcastle >Callaghan NSW 2308 >AUSTRALIA >ph 02 4921 7430 >fax 02 4921 6931 > >-- > >This message was delivered through the Obligations Discussion Group, an >international mailing list devoted to all aspects of the law of >obligations. To be added or deleted from the list please send a message >to . To make a posting to all group >members, send a message to . The list is run by >Jason Neyers of the University of Western Ontario, tel. (+1) 519 >661-2111 x. 88435,email . The list is archived at >. Archived messages are not to be >cited in published works without prior approval of the author. ____________________________________________________________________ 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, . --=====================_-180935030==_.ALT Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Neil

The thesis that claims to recover money paid as tax which is not due should be mediated exclusively through public law actions and should not form the subject matter of private law actions, was recently rejected by the HL in Deutsche Morgan Grenfell plc v IRC [2006] UKHL 49 http://www.publications.parliament.uk/pa/l= d200506/ldjudgmt/jd061025/morgan-1.htm  The most cogent arguments that such claims should be determined by reference to public law principles have been made by Rebecca Williams, whose book on the subject we await with keen interest: http://www.hartpub.co.uk/books/details.asp?isbn=3D97 81841= 134147  For a flavour of her approach you can read her commentary on the CA's decision in DMG: http://www.hartjournals.co.uk/klj/volumes/16/issues/1 /712.= html  The SCC decision strongly suggests that counsel in DMG missed a trick when he failed to put these arguments to the court in the HL, which largely confined itself to rejecting the empty formalistic reasoning of the CA.

Best wishes
Charles

P.S. I am copying this to Rebecca in case she wants to add anything.


At 11:22 16/01/2007 +1100, Neil Foster wrote:
Dear Colleagues;
I'd be interested to hear from colleagues who know about the law of
unjust enrichment, their views on the decision of the Supreme Court of
Canada in Kingstreet Investments Ltd. v. New Brunswick (Department of
Finance), 2007 SCC 1 (11 Jan, 2007)
http://scc.lexum.umontreal.ca/en/2007/2007scc1/2007scc1 .html= .
The SCC unanimously holds that, where a Province has exacted money
through an unlawful indirect tax (a liquor tax where the price was
presumably passed on the drinking public), the suppliers who pay the tax
can recover the full amount of the tax paid, along with interest, but
only for the last 6 years (due to the limitation statute). A defence of
"passing on" the tax (ie that the suppliers in fact had passed on the
tax to consumer) was rejected, and the tentative views put forward in an
earlier Australian case, Commissioner of State Revenue (Victoria)=20 v.
Royal Insurance Australia Ltd. (1994) 182 C.L.R. 51, by Brennan J in the
HCA, that customers could presumably recover the amounts they paid from
the suppliers, seems to have been accepted.
{In fact Australian colleagues will recall that almost precisely=20 the
same issues arose after the High Court's decision in Ha v NSW (1997) 71
ALJR 1080 that State alcohol, cigarette and petrol taxes were invalid
under s 90 of the Australian Constitution. Unlike the Canadian SC in Re
Eurig Estate, [1998] 2 S.C.R. 565 (referred to in Kingstreet  at [25])
the HC held that it could not "suspend" its declaration of invalidity or
engage in prospective over-ruling. For whatever reason the SCC does not
refer to Ha and its sequels- see Roxborough v Rothmans of Pall Mall
Australia Ltd (2001) 208 CLR 516 where retailers were held to be
entitled to recover the tax paid, and Campbells Cash and Carry Pty
Limited v Fostif Pty Limited; Australian Liquor Marketers Pty Limited v
Berney [2006] HCA 41 (30 August 2006)
http://www.austlii.edu.au/au/cases/cth/high_ct/2006/41.h tml where a
"class action" on behalf of various retailers was upheld as valid.= As
will be seen, 10 years later there still seems to be a lot of work for
lawyers in the wake of the HC decision!}
Is the decision of the SCC in Kingstreet relevant to private law? That
is precisely one of the interesting aspects of the decision. The SCC
effectively seems to say that this issue is not to be dealt with under
the private law of "restitution", but is subject to special= rules
derived from constitutional principles- [32]-[40]. Strikes me that there
are a lot of interesting issues there to do with the connections between
"public" and "private" law.
Regards
Neil Foster

Neil Foster
Lecturer
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

--

This message was delivered through the Obligations Discussion Group, an= international mailing list devoted to all aspects of the law of= obligations. To be added or deleted from the list please send a message to= <obligations-request@uwo.ca>. To make a posting to all group members,= send a message to <obligations@uwo.ca>. The list is run by Jason= Neyers of the University of Western Ontario, tel. (+1) 519 661-2111 x.= 88435,email <jneyers@uwo.ca>. The list is archived at <http://www.ucc.ie/law/odg/home.htm>. Archived= messages are not to be cited in published works without prior approval of= the author.
____________________________________________________________________ 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>. --=====================_-180935030==_.ALT-- ======================================================================= == Date: Fri, 26 Jan 2007 07:11:42 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: Notice of Conference: Restitution in Commercial Law In-Reply-To: <5.1.0.14.2.20061025102513.0134cbc0@pop.kcl.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; format=flowed INTERNATIONAL CONFERENCE IN NSW ON AUGUST 3-5 2007: RESTITUTION IN COMMERCIAL LAW www.restitution.unsw.edu.au On 3-5 August 2007, the Faculty of Law, University of New South Wales will host a major international conference on Restitution in Commercial Law. Topics covered are those at the cutting edge of commercial law and include: * establishing enrichment * unconscientious dealings and unjust enrichment * choice of law for restitutionary claims *the nature of unjust enrichment and the decision of the House of Lords in October 2006 in Deutsche Morgan Grenfell Group v Commissioners of Inland Revenue [2006] UKHL 49 *tracing and restitution *proprietary responses to unjust enrichment *the nature and operation of the defence of change of position *imputing an agents knowledge in restitutionary claims Speakers include leading Professors from Alberta, Auckland, Cambridge, King's (London), LSE, Melbourne, McGill, Oxford, Trinity College Dublin, University College Cork and many others, including leading judges including from the High Court of Australia, House of Lords, intermediate Australian appellate courts and leading counsel including from the Canadian, London, NSW, and WA bars. The conference is sponsored by Allens Arthur Robinson, Freehills and Mallesons Stephen Jaques. For all the information including the speakers, programme and registration for the conference please go to www.restitution.unsw.edu.au . Dicounted rates are available to academics and those with 5 years practice experience or less and an additional earlybird discount of 10% applies until the end of March 2007 SD and JE Convenors _________________________________________________________________ Join the millions of Australians using Live Search. Try live.com.au http://ninemsn.com.au/share/redir/adTrack.asp?mode=click&clientID=740&r eferral=million&URL=http://live.com.au ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .