Restitution and Unjust Enrichment in the Supreme Court: Reflections on Bank of Cyprus UK Ltd v Menelaou

2016 ◽  
Author(s):  
Graham Virgo
Keyword(s):  
Supreme Court ◽  
Unjust Enrichment ◽  
The Supreme Court

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

SUBROGATION AS A REMEDY FOR UNJUST ENRICHMENT IN THE SUPREME COURT

2016 ◽  
Vol 75 (2) ◽  
pp. 209-212 ◽  
Author(s):  
Stephen Watterson
Keyword(s):  
Supreme Court ◽  
Purchase Price ◽  
Unjust Enrichment ◽  
Security Interest ◽  
The Supreme Court

WHERE claimant C is responsible for discharging a liability of debtor D to creditor X, secured over D's assets, C is sometimes entitled to be subrogated to X's extinguished security interest. Typically, C is a lender, who loaned money to enable D, the borrower, to purchase property or refinance existing borrowing from X, in return for some agreed security. If that security proves defective, the courts commonly find that C is subrogated to X's security, which was paid off via the loan. Where C's loan funded a valid purchase transaction, that commonly entails subrogation to the “unpaid vendor's lien”, which the vendor held as security for payment of the purchase price. Why might C acquire these rights? Banque Financière de la Cité v Parc (Battersea) Ltd. [1999] 1 A.C. 221 suggested a bold new rationalisation: such subrogation is a “restitutionary remedy” which prevents or reverses “unjust enrichment”. The Supreme Court had its first opportunity to explore the implications of this insight in Menelaou v Bank of Cyprus Plc [2015] UKSC 66; [2016] A.C. 176.

scholarly journals The Law of Contribution – An Equitable Doctrine or Part of the Law of Unjust Enrichment?

2017 ◽  
Vol 48 (3) ◽  
pp. 471
Author(s):  
Victoria Stace
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Enrichment Analysis ◽  
The Other ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
The Law ◽  
Significant Change

This article looks at the changes made to the equitable doctrine of contribution by the New Zealand Supreme Court in a 2016 decision, Hotchin v New Zealand Guardian Trust Co Ltd. The approach now favoured by the Supreme Court is that to establish a claim for contribution by one defendant against another, there is no need to find any greater degree of coordination between the liabilities other than that the plaintiff could pursue either defendant for its loss and either would be liable for it, in whole or in part. The underlying rationale is that by paying the plaintiff, the defendant who was pursued not only discharges itself but also discharges the other defendant's liability. If mutual discharge is established, the court then determines the amount of contribution based on what is just and reasonable in the circumstances. The Supreme Court's approach to the doctrine of equitable contribution, which is a significant change to previous law, bears similarities to the approach proposed in the leading text on unjust enrichment, raising the issue of whether a future claim for contribution could be approached using an unjust enrichment analysis.

scholarly journals Constructive Trusts in Canada

1969 ◽  
Vol 37 (1) ◽  
pp. 173 ◽  
Author(s):  
Robert Chambers
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Breach Of Duty

In this article, the author discusses the role of constructive trusts in Canada, examining the connection between unjust enrichment and the constructive trust. In particular, the author focuses on the Supreme Court of Canada decision in Soulas v. Korkontzilas and argues that constructive trusts respond to two main categories of events, the acquisition of assets in breach of duty and intentions to benefit others.

INDIRECT ENRICHMENT IN THE SUPREME COURT

2017 ◽  
Vol 76 (3) ◽  
pp. 490-492
Author(s):  
Rajiv Shah
Keyword(s):  
Supreme Court ◽  
Unjust Enrichment ◽  
Investment Trust ◽  
The Supreme Court ◽  
Economic Reality ◽  
Customer Purchases ◽  
Court Of Appeal

A customer purchases services from a supplier to which VAT at the applicable rate is added but VAT was not actually due. Is the customer able to recover these payments by bringing an unjust enrichment claim against the Revenue and Customs Commissioners? “Yes”, answered the Court of Appeal, on the basis that as a matter of “economic reality” the Commissioners were enriched at the expense of the customers, and that such an enrichment was unjust because VAT was not actually due. Lord Reed, giving the unanimous judgment of the Supreme Court, reversed that decision: Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2017] UKSC 29; [2017] 2 W.L.R. 1200. The customers did not have an unjust enrichment claim against the Commissioners because their enrichment was not “at the expense of” the customers.

scholarly journals The Role of the Supreme Court in the Development of a Canadian Law of Restitution

1994 ◽  
Vol 32 ◽  
pp. 557
Author(s):  
Nicholas Rafferty
Keyword(s):  
Supreme Court ◽  
General Principle ◽  
Supreme Court Of Canada ◽  
Significant Progress ◽  
Full Spectrum ◽  
Unjust Enrichment ◽  
Leading Role ◽  
Canadian Law ◽  
The Supreme Court

In this essay, the author examines the emerging law of restitution and the peculiar and powerful contribution of the Supreme Court of Canada to its development and maturation. It is argued that the Supreme Court has assumed a leading role in fashioning the modern law of restitution in the Commonwealth. The first part of the paper traces the adoption and elaboration by the Canadian courts of a general principle of unjust enrichment with respect to both personal and proprietary claims. This involves an examination of specific cases in which the Supreme Court has embraced both the principle of unjust enrichment and the independent nature of the law of restitution. The essay then analyzes the contribution of the Supreme Court in applying that general principle across the full spectrum of restitutionary liability. Particular attention is focused upon the recognition of a defence of change of position, the recovery of benefits conferred under mistake, contribution among concurrent wrongdoers and the development of the remedial constructive trust. The author concludes that, despite the significant progress made by the Supreme Court, there are a number of areas in which further work is required to develop fully the principle of unjust enrichment.

scholarly journals IN DEFENCE OF UNJUST ENRICHMENT

2019 ◽  
Vol 78 (3) ◽  
pp. 521-544
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Central Area ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Central Argument ◽  
The Law ◽  
The Impact

AbstractThis article seeks to defend the law of unjust enrichment against the recent influential attacks of Robert Stevens (“The Unjust Enrichment Disaster” (2018) 134 LQR 574) and Lionel Smith (“Restitution: A New Start?” in Devonshire and Havelock, The Impact of Equity and Restitution in Commerce (2018), ch. 5). A central argument here put forward is that there is a law of unjust enrichment, embodying a cause of action in unjust enrichment, which unites what Stevens and Smith see as disparate categories. A linked but separate argument is that, within the central area of unjust enrichment, Stevens is incorrect to regard the defendant's acceptance of performance as being necessary to trigger restitution albeit that acceptance may be relevant in establishing that the defendant has been enriched. A further, and more specific, argument is that, with great respect, the overruling, as a matter of principle, of Sempra Metals Ltd. v IRC [2007] UKHL 34, [2008] 1 A.C. 561, by the Supreme Court in Prudential Assurance Ltd. v HMRC [2018] UKSC 39, [2018] 3 WLR 652, seems unfortunate and appears to have been influenced by Stevens's excessively narrow approach to the meaning of “at the expense of”.

scholarly journals Making Sense of Juristic Reasons: Unjust Enrichment after Garland v. Consumers' Gas

1969 ◽  
pp. 399
Author(s):  
Mitchell McInnes
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Civil Law ◽  
Supreme Court Of Canada ◽  
Unjust Enrichment ◽  
Making Sense ◽  
The Supreme Court

This article considers the effect of the recent decision of the Supreme Court of Canada in Garland v. Consumers' Gas. The author suggests that lacobucci J. 's judgment replaces the traditional common law approach, which relies on the presence of unjust factors, with a unique version of the traditional civil law approach, which relies on the absence of juristic reasons. That decision is criticized as being contrary to precedent and principle. The author then suggests how, with slight modifications, the new test of restitutionary liability may be made more workable and coherent.

scholarly journals The Position of Consideration in Nepal: A Study of Theories, Cases, and Laws

2021 ◽  
pp. 35-49
Author(s):  
Laxmi Sapkota
Keyword(s):  
Supreme Court ◽  
Contract Theory ◽  
Research Paper ◽  
Essential Elements ◽  
Civil Code ◽  
Realistic Interpretation ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Definition Of ◽  
The Cost

Lawful consideration is one of the essential elements of a valid contract. However, The National Civil Code, 2017 A.D. (2074 B.S.) has not included a definition of consideration, and it has not stated the necessity of consideration in Nepal in a particular section. Nevertheless, it seems that the Code has realized the importance of lawful consideration in the provisions of contracts of rent, wage and hire purchase. The Code has also stated unjust enrichment, under which one party should not enrich himself or herself at the cost of others or other’s property. Conversely, the now-repealed Contract Act, 2000, in its section 2(d), had defined consideration and stated that consideration must be lawful in section 13(k). In the cases decided by the Supreme Court of Nepal (Bhagwan Lal Shah v. Harka Lal Giri and Chitra Bahadur Karki; Proprietor of Manakamana Construction and Concerns Pvt. Ltd v. Maniram Aggrawal, Proprietor of Aggrawal Industries Pvt. Ltd.), the Supreme Court has issued the precedent stating the importance of consideration in Nepal in regard to Contract Act, 2000 which has now been repealed and replaced by The National Civil Code 2017. Additionally, different theories of the contract like bargain theory, realistic interpretation, theory of reciprocity, ‘nundum pactum’ theory and ‘no consideration no contract’ theory also emphasize the importance of consideration in Contract. Finally, this research paper has proven that consideration is essential in Nepal, thereby stating the theories of consideration, the legislative provisions, and the cases. Furthermore, the researcher came to the conclusion that the lawful consideration is essential in Nepal and it should be dealt with like oxygen to humans and whether written or not, must be implicitly understood. The word ‘consideration’ not explicitly being mentioned in law should not create confusion that a contract can happen without lawful consideration.

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