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REU05

Restitution Update

NZ $50.00
incl GST
Charles Cato Tim Mullins
Charles Cato
Barrister
Auckland
Tim Mullins
LeeSalmonLong
Auckland

Published: 31 August, 2005
Pages: 150

Introduction

This seminar is timely. In recent years, there has been considerable focus on the subject “restitution”, both from a theoretical and practical aspect. The last survey of case law and developments was presented for the New Zealand Law Society by Professor Watts and Stephen Kós in 1990. Since then, both here and in other jurisdictions, there has been a significant number of cases which are relevant to an understanding of modern restitution.

Restitution as a subject had its origins many years ago in the famous dicta of Lord Mansfield in Moses v Macferlan (1760), a case involving the common law remedy of monies had and received. Other distinguished jurists such as Lord Wright in Fibrosa (1942) , a case on frustration and contract, and Lord Denning in Nelson v Laholt [1948], a case of knowing receipt of misappropriated trust monies, spoke of restitution. However, it was not until Goff and Jones published their seminal work The Law of Restitution in 1966 that restitution as a subject was given a sound theoretical basis or foundation in English law. The great contribution of these writers lay in their collection of both common law and equitable remedies under an overarching umbrella of unjust enrichment. In this sense, they achieved for English lawyers what the Restatement of the Law of Restitution (1937) did for the subject in the United States.

In recent times, there has been a good deal of theoretical debate on the basis for and the boundaries of restitution. In this booklet we mention some of these themes. However, we are keen to convey the message that restitution as a subject now has a strong foothold in the common law, and no doubt over a period of years its ambit and scope will be gradually settled. With the fusion of law and equity, we see restitution as an appropriate practical vehicle to collect both cases resulting in gain-based remedies arising under a broad conception of unjust enrichment, and, if we allow ourselves a measure of indulgence, also cases where such remedies are crafted to address the consequences of unconscionable dealing.

We are conscious of the fact that Professors Berryman and Watts, and Stephen Kós, have recently presented an NZLS seminar on contractual remedies which incorporates a comprehensive discussion of restitution within that framework. We have accordingly chosen to limit our discussion in that area, and in other areas involving contractual obligation, such as mistake, frustration and illegality. We summarise the New Zealand statutory overlay, much of which is directed to contract, from the point of view of restitution. In the time permitted we will present certain selected topics where modern restitution has had a significant role to play, in addition to an overview of the subject as a whole. These topics include mistake and money payments, duress, undue influence and unconscionable bargains, fiduciary obligations, restitution for wrongs, and proprietary remedies, all of which are important areas in practice.

Above all, we see modern restitution, as Lord Wright said in Fibrosa, as a subject worthy of study, we submit, for practitioners and students alike.

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