From: Colin Liew <colinliew@gmail.com>
To: ODG <obligations@uwo.ca>
Date: 02/06/2010 14:44:16 UTC
Subject: Haugesund Kommune & anor v Depfa ACS Bank
Dear all,

The English CA has recently released a judgment dealing with a number of restitution issues: Haugesund Kommune & anor v Depfa ACS Bank [2010] EWCA Civ 579. Among other things, the CA lays to rest Sinclair v Brougham, Aikens LJ saying at [87]:

My conclusion is that the majority of the House of Lords in WLG [Westdeutsche Landesbank Girozentrale v Islington LBC] did depart from the decision in Sinclair v Brougham that a lender under a borrowing contact that is void because ultra vires the borrower, cannot recover the sum lent in a restitutionary claim at law. As a result of the decision of the majority of the House of Lords in WLG such a claim can be advanced. It is, of course, not a claim based on any implied contract or promise and it does not indirectly enforce an ultra vires contract, for the reasons given by Lord Goff at page 688G-H of WLG.Moreover, I respectfully agree with him that any such restitutionary claim must be subject, where appropriate, to any available restitutionary defences, including any that can legitimately be based on public policy. If I am correct then Sinclair v Brougham can "fade into history" as Lord Goff hoped it would.