======================================================================= == Date: Thu, 6 Jul 2006 17:39:20 +0100 Reply-To: Duncan.Sheehan@uea.ac.uk Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: "Duncan Sheehan (LAW)" Organization: University of East Anglia Subject: Re Diplock with a twist Comments: To: obligations@uwo.ca MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit Dear all The situation I have in mind is this. Company X goes bust; liquidator is appointed and proceeds to gather in and distribute the assets. Unfortunately he disburses money to people who turn out not to have been entitled to it (I don't think it matters why). Some time later after the company is wound up this is discovered. The question is what claims the contributories might have. Presumably there is a claim against the liquidator for not doing his job properly if nothing else, but might the contributories have a claim against the payees, and if so is that a derivative claim through the liquidator? It seems to me that this far more obviously analogous to Re Diplock than Butler v Broadhead [1975] Ch 97, where the claimants were creditors, claiming that the liquidator hadn't paid them and consequently overpaid the contributories, which strikes me as just the wrong way round. Templeman J though recognised a possible analogy with Re Diplock, but in the end said, "The conclusion I have reached is that there can be no room for the operation of the principle of Ministry of Health v. Simpson [1951] A.C. 251 in respect of a claim for which a proof could have been entered and for which there has been advertisement, not complied with..." at 111. And that must be right, but doesn't I think cover my facts. Thoughts anybody? It may be that we need not invoke Re Diplock analogies at all. If so I'd be grateful for the answer from those who know more about insolvency than me. And apologies for the inevitable cross-posting... Duncan Dr Duncan Sheehan Director of Admissions Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ======================================================================= == Date: Thu, 6 Jul 2006 14:17:25 -0400 Reply-To: John Swan Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: John Swan Subject: Re: Re Diplock with a twist Comments: To: Duncan.Sheehan@uea.ac.uk, obligations@uwo.ca MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C6A128.6F04C359" This is a multi-part message in MIME format. ------_=_NextPart_001_01C6A128.6F04C359 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Duncan, =20 This case may be far removed from what you may have had in mind. It comes with my brief summary of the facts: =20 Sidaplex-Plastic Suppliers, Inc. v. Elta Group Inc. (1998), 40 O.R. (3d) 563, 162 D.L.R. (4th) 367, 43 B.L.R. (2d) 155 (Ont. C.A.) Judgment creditor accepted lc as security. The lc was, by mistake, limited and not irrevocable. The corporation sold its assets and used the proceeds of the sale to pay the bank. This payment discharged the liability of the sole shareholder and director under a guarantee. The creditor brought an application under the oppression remedy. The failure of the judgment debtor to renew the lc was oppressive of the creditor. Oppression remedy available against the corporate debtor and its sole director. Neither bad faith nor "want of probity" necessary for oppression remedy. Since the sale of the corporation's assets had not complied with the Bulk Sales Act and though creditor was not a creditor from whom provisions had to be made for payment under the Act, the creditor was entitled to apply to have the sale set aside. The sale was, accordingly, void. Since it was unclear whether the creditor had waived non-compliance with s. 16(2) of the Act (giving the creditor a right against the buyer), the issue had to be set down for trial =20 John Swan=20 -----Original Message----- From: owner-obligations@uwo.ca [mailto:owner-obligations@uwo.ca] On Behalf Of Duncan Sheehan (LAW) Sent: Thursday, July 06, 2006 12:39 PM To: enrichment@lists.mcgill.ca; obligations@uwo.ca Subject: ODG: Re Diplock with a twist Dear all The situation I have in mind is this. Company X goes bust; liquidator is appointed and proceeds to gather in and distribute the assets. Unfortunately he disburses money to people who turn out not to have been entitled to it (I don't think it matters why). Some time later after the company is wound up this is discovered. The question is what claims the contributories might have. Presumably there is a claim against the liquidator for not doing his job properly if nothing else, but might the contributories have a claim against the payees, and if so is that a derivative claim through the liquidator? It seems to me that this far more obviously analogous to Re Diplock than Butler v Broadhead [1975] Ch 97, where the claimants were creditors, claiming that the liquidator hadn't paid them and consequently overpaid the contributories, which strikes me as just the wrong way round. Templeman J though recognised a possible analogy with Re Diplock, but in the end said, "The conclusion I have reached is that there can be no room for the operation of the principle of Ministry of Health v. Simpson [1951] A.C. 251 in respect of a claim for which a proof could have been entered and for which there has been advertisement, not complied with..." at 111. And that must be right, but doesn't I think cover my facts. Thoughts anybody? It may be that we need not invoke Re Diplock analogies at all. If so I'd be grateful for the answer from those who know more about insolvency than me. And apologies for the inevitable cross-posting... Duncan Dr Duncan Sheehan Director of Admissions Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom -- This message was delivered through the Obligations Discussion Group, an international mailing list devoted to all aspects of the law of obligations. To be added or deleted from the list please send a message to . To make a posting to all group members, send a message to . The list is run by Jason Neyers of the University of Western Ontario, tel. (+1) 519 661- 2111 x. 88435,email . The list is archived at . Archived messages are not to be cited in published works without prior approval of the author. ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------_=_NextPart_001_01C6A128.6F04C359 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Message
Duncan,
 
This case may be far = removed from=20 what you may have had in mind.  It comes with my brief summary of = the=20 facts:
 
Sidaplex-Plastic Suppliers, Inc. v. = Elta Group=20 Inc. (1998), 40 O.R. (3d) 563, 162 D.L.R. (4th) 367, 43 B.L.R. (2d) = 155=20 (Ont. C.A.) Judgment creditor accepted lc as security. The lc was, by = mistake,=20 limited and not irrevocable. The corporation sold its assets and used = the=20 proceeds of the sale to pay the bank. This payment discharged the = liability of=20 the sole shareholder and director under a guarantee. The creditor = brought an=20 application under the oppression remedy. The failure of the judgment = debtor to=20 renew the lc was oppressive of the creditor. Oppression remedy available = against=20 the corporate debtor and its sole director. Neither bad faith nor "want = of=20 probity" necessary for oppression remedy. Since the sale of the = corporation's=20 assets had not complied with the Bulk Sales Act and though creditor was = not a=20 creditor from whom provisions had to be made for payment under the Act, = the=20 creditor was entitled to apply to have the sale set aside. The sale was, = accordingly, void. Since it was unclear whether the creditor had waived=20 non-compliance with s. 16(2) of the Act (giving the creditor a right = against the=20 buyer), the issue had to be set down for trial
 
John Swan


-----Original Message- ----
From: = owner-obligations@uwo.ca [mailto:owner-obligations@uwo.ca<= /A>] On=20 Behalf Of Duncan Sheehan (LAW)
Sent: Thursday, July 06, 2006 12:39 = PM
To:=20 enrichment@lists.mcgill.ca; obligations@uwo.ca
Subject: ODG: Re = Diplock with=20 a twist


Dear all

The situation I have in mind is this. = Company=20 X goes bust; liquidator is appointed and proceeds to gather in and = distribute=20 the assets. Unfortunately he disburses money to people who turn out not = to have=20 been entitled to it (I don't think it matters why). Some time later = after the=20 company is wound up this is discovered. The question is what claims the=20 contributories might have. Presumably there is a claim against the = liquidator=20 for not doing his job properly if nothing else, but might the = contributories=20 have a claim against the payees, and if so is that a derivative claim = through=20 the liquidator? It seems to me that this far more obviously analogous to = Re=20 Diplock than Butler v Broadhead [1975] Ch 97, where the claimants were=20 creditors, claiming that the liquidator hadn't paid them and = consequently=20 overpaid the contributories, which strikes me as just the wrong way = round.=20 Templeman J though recognised a possible analogy with Re Diplock, but in = the end=20 said,

"The conclusion I have reached is that there can be no room = for the=20 operation of the principle of Ministry of Health v. Simpson [1951] A.C. = 251 in=20 respect of a claim for which a proof could have been entered and for = which there=20 has been advertisement, not complied with..." at 111. And that must be = right,=20 but doesn't I think cover my facts.

Thoughts anybody? It may be = that we=20 need not invoke Re Diplock analogies at all. If so I'd be grateful for = the=20 answer from those who know more about insolvency than me. And apologies = for the=20 inevitable cross-posting...

Duncan

Dr Duncan = Sheehan
Director=20 of Admissions
Norwich Law School
University of East = Anglia
Norwich NR4=20 7TJ
United Kingdom


--

This message was delivered = through=20 the Obligations Discussion Group, an international mailing list devoted = to all=20 aspects of the law of obligations. To be added or deleted from the list = please=20 send a message to <obligations- request@uwo.ca>. To make a posting = to all=20 group members, send a message to <obligations@uwo.ca>. The list is = run by=20 Jason Neyers of the University of Western Ontario, tel. (+1) 519 = 661-2111 x.=20 88435,email <jneyers@uwo.ca>. The list is archived at <http://www.ucc.ie/law/odg/h om= e.htm>.=20 Archived messages are not to be cited in published works without prior = approval=20 of the author.

=00 ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>. ------_=_NextPart_001_01C6A128.6F04C359-- ======================================================================= == Date: Thu, 6 Jul 2006 23:20:58 +0000 Reply-To: look-chan.ho@1WEBMAIL.NET Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Look Chan Ho Subject: Re: Re Diplock with a twist Comments: cc: obligations@uwo.ca Content-Type: text/plain; charset=utf-8 Content-Disposition: inline Content-Transfer-Encoding: quoted-printable MIME-Version: 1.0 Apart from the Re Diplock route, it is hard to see why the contributories would have a direct claim against the payees. It would be hard for the contributories to establish that the payees were enriched at the contributories' expense. For the orthodox view is that assets of a company in liquidation are held in a statutory trust with the company=E2=80=99s beneficial interest being in suspense; neither the creditors nor anyone else have a proprietary beneficial interest in the liquidation trust fund. The Re Diplock route should be feasible, though the contributories may need to exhaust their remedy against the liquidator first. The contributories may also apply to court to direct the liquidator to take proceedings against the payees or to allow the contributories to use the company's name so that the contributories can enforce the company's right. The company may have a claim against the payees under Lipkin Gorman or knowing receipt. Look On Thu, 6 Jul 2006 17:39:20 +0100, "Duncan Sheehan (LAW)" wrote Dear all=20 The situation I have in mind is this. Company X goes bust; liquidator is appointed and proceeds to gather in and distribute the assets. Unfortunately he disburses money to people who turn out not to have been entitled to it (I don't think it matters why). Some time later after the company is wound up this is discovered. The question is what claims the contributories might have. Presumably there is a claim against the liquidator for not doing his job properly if nothing else, but might the contributories have a claim against the payees, and if so is that a derivative claim through the liquidator? It seems to me that this far more obviously analogous to Re Diplock than Butler v Broadhead [1975] Ch 97, where the claimants were creditors, claiming that the liquidator hadn't paid them and consequently overpaid the contributories, which strikes me as just the wrong way round. Templeman J though recognised a possible analogy with Re Diplock, but in the end said,=20 "The conclusion I have reached is that there can be no room for the operation of the principle of Ministry of Health v. Simpson [1951] A.C. 251 in respect of a claim for which a proof could have been entered and for which there has been advertisement, not complied with..." at 111. And that must be right, but doesn't I think cover my facts.=20 Thoughts anybody? It may be that we need not invoke Re Diplock analogies at all. If so I'd be grateful for the answer from those who know more about insolvency than me. And apologies for the inevitable cross-posting... Duncan=20 Dr Duncan Sheehan Director of Admissions Norwich Law School University of East Anglia Norwich NR4 7TJ United Kingdom ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ======================================================================= == Date: Fri, 7 Jul 2006 14:11:01 +1000 Reply-To: Brad Strahorn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Brad Strahorn Subject: Re: Re Diplock with a twist MIME-Version: 1.0 Content-Type: text/plain; charset="utf-8" Content-Transfer-Encoding: base64 SSBhZ3JlZSwgdW5sZXNzIG9mIGNvdXJzZSB5b3Ugc3Vic2NyaWJlIHRvIHRoZSB2aWV3ICh hcyBJ IGRvKSwgdGhhdCBSZSBEaXBsb2NrIGlzIGdlbmVyYWxseSBhIGhpc3RvcmljYWwgYW5vbWF seTog c2VlIFMuV2hpdHRha2VyLCDigJhBbiBIaXN0b3JpY2FsIFBlcnNwZWN0aXZlIHRvIHRoZSD igJhT cGVjaWFsIEVxdWl0YWJsZSBBY3Rpb27igJkgaW4gUmUgRGlwbG9ja+KAmSwgKDE5ODMpIDQ g cGVjaWFsIEVxdWl0YWJsZSBBY3Rpb27igJkgaW4gUmUgRGlwbG9ja+SkxI IDM7IGFuZCBhbHNvIEMuSGFycHVtLCDigJhUaGUgQmFzaXMgb2YgRXF1aXRhYmxlIExpYWJ pbGl0 eeKAmSBpbiBQLkJpcmtzIChlZCksIFRoZSBGcm9udGllcnMgb2YgTGlhYmlsaXR5OiBWb2x 1bWUg 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Reply-To: Andrew Tettenborn Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Andrew Tettenborn Subject: duress and restitutio MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1; format=flowed Content-Transfer-Encoding: 7bit Some muscular restitution theory before Nigel Teare QC in the Commercial Court in Halpern v Halpern [2006] EWHC 1642 (Comm). A complex Jewish inheritance dispute in a Beth Din is compromised: apart from distribution of the goodies, one term of the compromise is destruction of all documents relating to the dispute. One party then says the compromise has been obtained by duress, & seeks to undo it. Other party argues, we've destroyed our documents and hence you can't give back what you got. First party ripostes: you don't need restitutio in a duress case: and a prel issue is ordered on the point, Yes, you do need restitutio, says the judge. Duress is like deceit, and even the wicked have the right to demand back what they gave. Presumably now someone has to sort out whether substantial restitutio is possible despite the fact that the documents can't be revived. Happy days, Andrew -- Andrew Tettenborn MA LLB Bracton Professor of Law University of Exeter, England Tel: 01392-263189 / +44-392-263189 (outside UK) Cellphone: 07870-130528 / +44-7870-130528 (outside UK) Fax: 01392-263196 / +44-392-263196 (outside UK) Snailmail: School of Law, University of Exeter, Amory Building, Rennes Drive, Exeter EX4 4RJ England Exeter Law School homepage: http://www.law.ex.ac.uk My homepage: http://www.law.ex.ac.uk/staff/tettenborn.shtml LAWYER, n. One skilled in circumvention of the law (Ambrose Bierce, 1906). ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ======================================================================= == Date: Wed, 26 Jul 2006 05:06:46 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: Just published: The Defence of Passing On In-Reply-To: <20060614051236.546965A070@webmail218.herald.ox.ac.uk> Mime-Version: 1.0 Content-Type: text/plain; format=flowed Michael Rush's The Defence of Passing On has just been published. Although the website describes it as "unavailable" it is now in bookshops and available from Hart Publishing. http://www.hartpub.co.uk/books/details.asp?sc=1-84113-602-6 JE ____________________________________________________________________ This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, .