========================================================================= Date: Thu, 6 Mar 2008 16:13:05 +1100 Reply-To: Neil Foster Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Neil Foster Subject: Appeal transcripts for Lumbers v Cook MIME-version: 1.0 Content-type: multipart/alternative; boundary="Boundary_(ID_uM89Cj1TgNwMo8rWCTYeGQ)" This is a MIME message. If you are reading this text, you may want to consider changing to a mail reader or gateway that understands how to properly handle MIME multipart messages. --Boundary_(ID_uM89Cj1TgNwMo8rWCTYeGQ) Content-type: text/plain; charset=ISO-8859-15 Content-transfer-encoding: 7BIT Dear Colleagues; For those who like to try reading tea-leaves, the transcript of the 1 * days arguments in the High Court of Australia in Lumbers & Anor v W Cook Builders Pty Ltd (In Liquidation) are now available: [2008] HCATrans 95 (26 February 2008) http://www.austlii.edu.au/au/other/HCATrans/2008/95.html and [2008] HCATrans 96 (27 February 2008) http://www.austlii.edu.au/au/other/HCATrans/2008/96.html . This case, of course, provides an opportunity for the Court to clarify the law of Australia on unjust enrichment, but it seem to me that counsel have decided (perhaps wisely, given the current composition of the Court) to argue the matter as if it were a case of quantum meruit. Regards Neil F Neil Foster Senior Lecturer, LLB Program Convenor Newcastle Law School Faculty of Business & Law MC158, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931 ____________________________________________________________________ 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, . --Boundary_(ID_uM89Cj1TgNwMo8rWCTYeGQ) Content-type: text/html; charset=ISO-8859-15 Content-transfer-encoding: quoted-printable Content-description: HTML

Dear = Colleagues;
For those who like to try reading tea-leaves, the transcript= of the 1 =BD days arguments in the High Court of Australia in Lumbers = & Anor v W Cook Builders Pty Ltd (In Liquidation) are now = available: [2008] HCATrans 95 (26 February 2008) http://www.austlii.edu.au/au/oth = er/HCATrans/2008/95.html and [2008] HCATrans 96 (27 February = 2008) = http://www.austlii.edu.au/au/other/HCATrans/2008/96.html . =

This case, = of course, provides an opportunity for the Court to clarify the = law of Australia on unjust enrichment, but it seem to me that counsel have = decided (perhaps wisely, given the current composition of the Court) to = argue the matter as if it were a case of quantum meruit.

Regards

Neil = F

Neil Foster

Senior Lecturer, LLB Program Convenor
Newcastle Law School
Facul= ty of Business & Law

MC158, McMullin Building
University of Newcastle
Callaghan NSW = 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

= ____________________________________________________________________ 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>. --Boundary_(ID_uM89Cj1TgNwMo8rWCTYeGQ)-- ========================================================================= Date: Thu, 6 Mar 2008 12:40:48 -0500 Reply-To: Chaim Saiman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Chaim Saiman Subject: Constructive trusts Mime-Version: 1.0 Content-Type: text/plain; charset=US-ASCII Content-Transfer-Encoding: quoted-printable Content-Disposition: inline Dear RDG Friends,=20 I know that has ben some hand wringing about whether American styled ( = remedial?) constructive trusts exist in English law. I would be much = obliged for references to any writing on 1. arguing for the importation of = the US remedy to Englsih law, 2. criticizing the US approach as ill suited = for English law, or 3, any comparative analysis of the two modes (and = whetehr the thinking exressed in Chase Manhattan Bank is still the current = view) If I correclty recall, both Lords Millett and B-Wilkenson have written = against the US practice. Any pointers in the right direction would be = most welcomed.=20 Many thanks in advance,=20 Chaim Saiman =20 Chaim Saiman Assistant Professor=20 Villanova Law School 610.519.3296 saiman@law.villanova.edu http://ssrn.com/author=3D549545 ____________________________________________________________________ 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: Sat, 15 Mar 2008 01:21:34 +0000 Reply-To: James Edelman Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Edelman Subject: ebay Comments: To: "dos@govhouse.wa.gov.au" , doug bishop , doug solomon , "douglas.e.edlin@dartmouth.edu" , "drpercy@shaw.ca" , "dsash@jacmac.com.au" , "dwight.newman@law.oxford.ac.uk" , "e.stone@unsw.edu.au" , "ebant@law.uwa.edu.au" , ecamins , Ed archibald , Ed Archibald , "eddieteo@online.com.sg" , "eganc@theaustralian.com.au" , "einfeld@stjames.net.au" , elise bant , "elisebant@GMAIL.COM" , "Elizabeth.Wall@riotinto.com" , emily camins2 , "Eurostar.com Support" , ewan mckendrick , "fabienne@bennettco.com.au" , Fiona Seaward , francis reynolds , "francis.reynolds@law.ox.ac.uk" , "francis.reynolds@law.oxford.ac.uk" , "Francis.Rose@bristol.ac.uk" , "francis.rose@buckingham.ac.uk" , "furedy@psych.utoronto.ca" , "galati2@southwest.com.au" , "gdjones@ecel.uwa.edu.au" , "gdjones@law.uwa.edu.au" , Gene Beadsworth , "geoffreycross@hotmail.com" , George Panagopoulos , gerard milne , "gerard.milne@oba.co.uk" , Gishubl Geoff 8140 GSG , "giuseppina.dagostino@law.ox.ac.uk" , "glen_lo@iprimus.com.au" , Glenda Shirbin , "graeme.hill@ags.gov.au" , "grandhotel@prague-hotels-guide.com" , grant donaldson , greg bacon , Greg McLennan , greg rowe , "gsolomon@solbros.com.au" Content-Type: multipart/alternative; boundary="_3ab3abf8-ee8d-4920-81a8-5fcffe152298_" MIME-Version: 1.0 --_3ab3abf8-ee8d-4920-81a8-5fcffe152298_ Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear friend: mainly sell a great deal of electronics products includi= ng :notebook,TV,PC,Camera,GPS,MP3/MP4. We certainly believe that our best q= uality,lowest price and perfect service could bring you preferable profit i= n your market. would you please visiting our website,to be amazing here. we= bsite: < http://www.gbp6688.com >MSN: gbp6688@hotmail.com=20 _________________________________________________________________ Overpaid or Underpaid? Check our comprehensive Salary Centre http://a.ninemsn.com.au/b.aspx?URL=3Dhttp%3A%2F%2Fcontent%2Emycareer%2Ecom% = 2Eau%2Fsalary%2Dcentre%3Fs%5Fcid%3D595810&_t=3D766724125&_r=3DHotmail_Email = _Tagline_MyCareer_Oct07&_m=3DEXT= ____________________________________________________________________ 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, . --_3ab3abf8-ee8d-4920-81a8-5fcffe152298_ Content-Type: text/html; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear friend:
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Check our comprehensive Salary Centre Overpaid or Underpai= d? = ____________________________________________________________________ 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>. --_3ab3abf8-ee8d-4920-81a8-5fcffe152298_-- ========================================================================= Date: Mon, 17 Mar 2008 14:52:20 -0000 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: Cooper v PRG Powerhouse Comments: cc: "Peter F. Smith" , Rosemary Auchmuty MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: quoted-printable Dear Colleagues, =20 Evans-Lombe J decided a short case on Friday which may be of interest: = Cooper v PRG Powerhouse Ltd & Ors [2008] EWHC 498 (Ch) (14 March 2008). = http://www.bailii.org/ew/cases/EWHC/Ch/2008/498.html=20 =20 A Quistclose trust was found and there is then a short but nice point on = tracing (including a citation for Prof L Smith), see paras 29-32: =20 29. In "The Law of Tracing" by Lionel D. Smith at page 266 the following = passage appears:-=20 =09 "The other point is that not all bank account transactions are final; = some are provisional. It might be that the balance on a given day is = =A3500, and the claimant is in the position to assert that =A3500 of = value traceably exists in the account. On the next day a cheque might be = drawn on the account for =A3600, leading to a provisional balance of = =A3100 overdrawn. If that cheque were dishonoured, the balance would = return to =A3500. The claimant's ability to trace would not be affected. = The cheque having been dishonoured, the value never actually left the = account. Provisional transactions which are reversed should therefore = simply be ignored." 30. In my judgment, on conventional principles of equitable tracing Mr = Cooper is entitled to trace his payment into the Company's current = account to the extent of =A331,218.82.=20 =09 31. It is accepted that all the Company's bank accounts were with = Barclays Bank. It is also accepted that, at the date of the = administration order, the Company had net cash at bank amounting to = =A31,306,153.85. Again it is to be assumed that that balance did not = fall below =A334,239.00 before 5th September 2006. It was submitted by = Mr Boeddinghaus for Mr Cooper, and I accept, that, on the material = before me, I am entitled to assume that the net balance after = consolidation of all accounts between the Company and the bank never = fell below =A334,239. There is no evidence that any other claimant is = making a claim to trace money into the Company's accounts with Barclays = Bank.=20 32. It is Mr Boeddinghaus' submission that an alternative approach to = tracing his client's payment is by taking the asset into which it can be = traced as the net balance due from Barclays Bank to the Company at all = material times since 7th July 2006 until Mr Cooper's claim was notified = on 5th September 2006. On this basis, he submits, his client's claim has = always been traceable into an asset of the Company, notwithstanding the = shifting balances between the various accounts. He was not able to = adduce any direct authority on the point. Equally no authority against = this contention in principle was adduced and I know of none. I propose = to accept it. " Best wishes, =20 James Lee =20 -- James Lee Teaching Fellow School of Law University of Reading Foxhill House, rm. 2.09 Whiteknights Road, Earley Reading RG6 7BA United Kingdom Phone: +44 (0) 118 3785643 Fax: +44 (0) 118 3784543 Email: j.s.lee@reading.ac.uk Web: www.reading.ac.uk/law ____________________________________________________________________ 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: Mon, 31 Mar 2008 11:50:39 +0100 Reply-To: Charles Mitchell Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Charles Mitchell Subject: Conference on Philosophical Foundations of the Law of Unjust Enrichment / 11 and 12 April Comments: cc: obligations@uwo.ca Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed I have already posted a message on this topic, and so I hope that RDG and ODG members will forgive me for posting this final reminder. On 11 and 12 April, we are holding a conference at King's College London on Philosophical Foundations of the Law of Unjust Enrichment. All are welcome to attend and debate a range of issues with a great line-up of speakers, and there is still time to book a place. Details are available on-line at: http://www.kcl.ac.uk/schools/law/events/pfue/ Regards Charles Professor Charles Mitchell School of Law King's College London Strand London WC2R 2LS tel: 020 7848 2290 fax: 020 7848 2465 ____________________________________________________________________ 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: Mon, 31 Mar 2008 13:26:42 -0400 Reply-To: Lionel Smith Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: Lionel Smith Subject: Re: Cooper v PRG Powerhouse In-Reply-To: <333D98CA3BE3B94099A2BD85114276F8011DBD78@vime1.rdg- home.ad.rdg.ac.uk> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Thanks for this message James, which for reasons I do not fully understand, my email client tried to hide from me in an obscure mailbox. On the final point, para. 32, the judge said there was no authority either for or against consolidation of multiple bank accounts for tracing purposes. In fact there is authority both for and against: Law of Tracing, 230-1. One of the many weaknesses of that book is its index! Lionel -- "The firm accepted an immense cash payment from the client composed largely of $100 bills and stuffed into a shoe box or a Ritz cracker box. ... This conduct disappoints." Wilkinson C.J. for the 4th Circuit C.A. in U.S. v. Moffitt, Zwerling & Kemler, P.C., 83 F.3d 660 (1996) at 671, cert. denied, 117 S. Ct. 788 (1997). ____________________________________________________________________ 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, .