The objective of this essay is to evaluate the effectiveness of the defence of change of position in protecting a defendant from hardship. The defence of change of position is made available to a defendant who has been unjustly enriched, but in good faith of the receipt of the enrichment, later suffers some changes in their personal circumstances. Unjust enrichment is not based on a wrong. Its imposition of strict liability is merited so long as an innocent defendant is not required to ‘put its hands in its pockets’. This makes sense so long as the defendant is overall no worse off by having received the initial enrichment. The defence of change of position is one that is concerned with a loss of benefit, also known as disenrichment and not with the general hardship of the defendant. It can be viewed as the same as estoppel minus the representation. The defendant must have detrimentally relied on the benefit being his to keep. Birks wrote that the defendant succeeds if he can show that he acted to his detriment on the faith of the receipt. It will not apply in circumstances where a defendant is initially enriched and subsequently encounters a loss or detriment so that overall the defendant had not been enriched. For example, a defendant, unjustly enriched, receives a sum of money and later loses the money due to unavoidable circumstances, cannot be made to pay the claimant for the initial unjust enrichment. The defendant would face a hardship or difficulty to pay the claimant, however, this does not constitute a defence to restitution. The defence ensures that the defendant is no worse off by having to make restitution. While disenrichment is to some extent dealt with by the traditional estoppel defence, that defence does not go...
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...the correctness of the wide view, provided that the need for a sufficient causal link is clearly recognized.. In my view, Mr Moriarty was right to make that concession. Taking a wide view of the defence, facilitates ‘a more generous approach.. To the recognition of the right to restitution.”
National Bank of New Zealand Ltd v. Waitaki International Processing (NI) Ltd. D had had told the bank of the mistake and, despite the bank’s insistence, believed throughout that it was not entitled to the money. The defendant then lost the money by investing it, without security, in a company that become insolvent. Given the defendant’s belief that he was not entitled to the money he could not be said to have ‘altered his position in reliance on the validity of the payment’. In contrast, the defendant could rely on the non-statutory change of position defence put up forward
Liability in restitution with disgorgement of profit is an alternative to liability for contract damages measured by injury to the promisee.” (2011)
Plea bargaining is a tool used in the court system for the benefit and detriment of the accused for numerous reasons. Additionally, the Crown will use plea bargaining for their benefit as well. For the purposes of this paper I intend to focus on the benefits and risks for an accused person to accept a plea bargain.
Another powerful opinion yearning to be exposed, is the one held by Henry Drummond, the defense’s attorney. The lawyer undoubtedly came to d...
The intent of this summary is to bring up some key factors relating to the case and how, more than a simple judgment or emotional response, defend my understanding that this case has many different angles of approach.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
Syme, D. (1997). Martin Bryant's Sentence- What the judge said, Retrieved 5 July, 2003, from http://www.geniac.net/portarthur/sentence.htm. 7. The Australian Encyclopaedia.
A fraud is a wrong action, which is basically deprivation of the legal rights from an individual. Fraud is seen at various instances of life. There are a number of frauds that occur and every case has different rights being deprived from an individual. When frauds take place, some legal authority has to intervene and take the necessary action. The legal authority is granted with the power to decide the right that has been taken from the victim and identify the compensation to be given to the individual on behalf of the party, which has made the fraud. In this report, I will discuss some cases in which fraud caused some issues and deprivation of the basic legal rights of an individual thus resulting in
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
there must have been a wrongful act committed and the plaintiff must have suffered. (Cannell)
Tort, one of the crucial subjects of study when analyzing common law jurisdictions. Tort, is an action which causes another person or party to suffer harm or loss []. The person who has committed a tortious act is called the tortfeasor while the person who suffered harm or loss from such act is called the injured party or the victim. Although crimes may be torts, torts may not be crimes [] simply because a tort may not have broken a law. In fact, one must understand that the key idea of tort is not to punish the tortfeasor(s) but rather to compensate the victim(s).
Throughout the history of television, it has been evident that certain news stations have portrayed their news in a way that aligns itself with a certain viewpoint or political position. For example, today one can see how stations like Fox take a conservative stance on most issues while CNN takes a more liberal perspective on the same issues. Much of the influence that the media could have on people, especially during elections, was a cause of alarm for many people. This led to the creation of the Fairness Doctrine in 1949.
On Bloodsworth’s appeal he argued several points. First he argued that there was not sufficient evidence to tie Bloodsworth to the crime. The courts ruled that the ruling stand on the grounds that the witness evidence was enough for reasonable doubt that the c...
The distinction between an unfair prejudice petition and a statutory derivative action has always been in the nature of remedy sought by the claimant. This is arguably the point where a distinction is drawn as to whether a statutory derivative action or an unfair prejudice petition should be pursued. A d...
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...