Comments on: Nature abhors a vacuum…

By: Club Troppo » Missing Link Daily

Club Troppo » Missing Link Daily — Mon, 21 Jul 2008 23:00:28 +0000

[...] Eagle manages to make the principles of unjust enrichment accessible and almost [...]

By: Andrew Reynolds

Andrew Reynolds — Tue, 24 Jun 2008 00:51:03 +0000

SL,
I would agree. The nature of the contract between the client and lawyer should be no business of the court. Unless, of course, it amounts to unjust enrichment…

By: skepticlawyer

skepticlawyer — Mon, 23 Jun 2008 09:17:05 +0000

The failure to provide security for costs leading to injustice (or just plain silliness, as here) is something that - I think - could be remedied through permitting contingency fees.

By: Legal Eagle

Legal Eagle — Mon, 23 Jun 2008 04:10:02 +0000

Pedro, I would have to disagree about Farah: IMO it doesn’t add to commercial certainty at all, and in fact, has clouded the waters of accessorial liability.

Andrew, I’d have to agree with you - it’s a crazy case. I would certainly agree with Lord Goff’s statements in Pan Ocean that you can’t just ignore the contractual matrix of a case when applying restitutionary principle.

It seems highly unjust that Builders recover from the Lumbers when they had not first sued Sons (albeit not for want of trying - they just couldn’t provide security for costs).

Therefore I think the HCA’s result is correct, but I wish they’d just refrain from the cheap digs at restitution lawyers!

By: Andrew Reynolds

Andrew Reynolds — Mon, 23 Jun 2008 03:14:24 +0000

Personally, I cannot see how this case got as far as it did. On the facts presented, Lumbers were not even aware of Builders existence - nevermind that they had any involvement in the building of their house. nor that they had not paid full value on the build.
Were the liquidators just trying to justify or increase their fees?

By: pedro

pedro — Sat, 21 Jun 2008 23:32:44 +0000

That should be “was at school”. Just read Farah, good decision I think. The commercial certainty argument is exactly right.

By: pedro

pedro — Sat, 21 Jun 2008 20:42:35 +0000

When I was at school the lecturers thought restitution was the future of contract law. Thank god they were wrong. Working with contracts everyday means you find yourself scratching around looking for certainty. I expect that the HC has been sensible enough to recognise that. The problem with top down reasoning is that the common law makes bigger jumps.

By: Abstraction » Nature abhors a vacuum…

Abstraction » Nature abhors a vacuum… — Fri, 20 Jun 2008 20:00:13 +0000

[...] Nature abhors a vacuum… The application of a framework for analysis expressed only at the level of abstraction adopted in this case, by reference to “benefit… [...]

By: Legal Eagle

Legal Eagle — Thu, 19 Jun 2008 23:56:48 +0000

Yes - Pavey & Matthews v Paul is also a building case involving an oral contract - but as the HCA point out - the difference is that there was a direct agreement between the house owner and the builder, and the owner actually asked for the builder to do the work. The problem for the builder was that oral contracts were not enforceable due to NSW legislation. Hence restitution came to the rescue.

Oxford is THE place for restitution lawyers. Funnily enough, when I got into the BCL, I got into Lady Margaret Hall. Alas for a lack of available cash to help me get over there - I was never able to take it up.

Re the current High Court - nothing lasts forever… that’s what I keep telling myself. As a colleague and I were discussing yesterday, however, we don’t think any more restitution cases will be going up to the High Court in the foreseeable future.

By: skepticlawyer

skepticlawyer — Thu, 19 Jun 2008 13:14:56 +0000

This is an area of the law I wish I knew more about - it pretty much stopped at quantum meruit for me - IIRC the relevant case there involved builders as well. It’s very much an Oxford thing - lots of people here are heavily into restitution/unjust enrighment (in fact, Brasenose is pretty much the ‘restitution college’ - I’m the odd party out, what with evidence and jurisprudence and all).

At least one Oz BCL-er at Brasenose decided to give restitution a miss based on the HCA attitude towards it, though.