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Category: Restitution

Subrogation and unjust enrichment – hunting the snark

20 October, 200924 July, 2023
| 4 Comments
| High Court of Australia, Restitution, Subrogation

The Hunting of the SnarkThe Hunting of the Snark is a nonsense poem written by Lewis Carroll subtitled An Agony in 8 Fits. In Fit 6, the Barrister dreams that the eponymous Snark serves as counsel for the defence, finds the verdict as the jury, and passes sentence as the judge. Perhaps it is fitting then to observe that, by way of update to yesterday’s post about Bofinger v Kingsway Group Limited (2009) 239 CLR 269, [2009] HCA 44 (13 October 2009), Legal Eagle on SkepticLawyer characterises the judgment as “yet another snark at unjust enrichment”. True, but reaffirming a light approach to the “unifying legal concept” of unjust enrichment is not necessarily a bad thing, even if the tone is indeed unnecessarily snarky. She does concede that, “to give the High Court credit where credit is due, it gives reasoned arguments for rejecting the Banque Financière decision (see Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221; [1998] UKHL 7 (26 February 1998)). It would sound quite reasonable if it weren’t for the usual snark beforehand” (given my views in my earlier post, it’s no surprise that I agree with her here). Her snark is that the Court does not provide similarly reasoned arguments for what she sees as negative knee-jerk responses to unjust enrichment reasoning.…

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Subrogation and unjust enrichment in the High Court of Australia

19 October, 200924 July, 2023
| 3 Comments
| High Court of Australia, Restitution, Subrogation

Blofeld + Goldfinger = Bofinger
By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, and the plaintiff is subrogated to the rights of the creditor against the debtor. It is a doctrine which admits of many possible explanations. For example, on the view taken by Meagher, Gummow & Lehane, subrogation largely follows a similar pattern in a series of otherwise unconnected islands: they are content to set out the categories, which, for them, are not closed, and to conclude that there are no universally applicable criteria for the intervention of equity in such cases. On another view of subrogation, taken by Hedley, and by Lord Salmon in Orakpo v Manson Investments [1978] AC 95 (HL), there are some relatively loose connections between the specific contexts but only at an abstract level: Hedley argues for a broad general principle that (subject to defences) the plaintiff can exercise whatever rights the creditor would, but for the plaintiff’s payment, have had against the debtor; whilst Lord Salmon argued for an “entirely empirical … principle … that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be”.…

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Share and share alike: restitution on overpaid stamp duty reserve tax

2 October, 20093 October, 2009
| 1 Comment
| Restitution

Curia: logo of ECJ, via the ECJ site.Cases from the European Court of Justice, holding that national tax provisions are inconsistent with EU law, just seem to keep on coming. The most recent is a decision of the ECJ yesterday in Case C-569/07 HSBC Holdings plc and Vidacos Nominees Ltd v The Commissioners of Her Majesty’s Revenue & Customs, which held that the levying of stamp duty reserve tax on a transfer of shares in France as part of a cross-border acquisition, pursuant to section 96 of the Finance Act 1986, was inconsistent with EU law (in particular, Article 11(a) of Council Directive 69/335/EEC of 17 July 1969 (pdf) concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985). The Guardian‘s report of the case is typically angst-ridden:

Treasury faces £5bn bill over European tax ruling

European court judgment over UK tax on firms that issue new shares abroad could be costly for British government

The taxpayer faces a bill potentially as high as £5bn following an obscure tax ruling on the issuance of shares by companies made today by the European court of justice. HSBC won an award of £27m plus interest from Revenue & Customs, after a long-running case in which the bank argued that the 1.5% tax it had been forced to pay on new shares it issued in 2000 in France broke EU law.

…

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Interesting times for restitution claims

28 September, 200928 September, 2009
| 1 Comment
| Restitution

May you live in interesting times.

This is – apocryphally – an ancient Chinese curse. Whatever its provenance, the times are certainly interesting for those who seek restitution of taxes invalidly paid contrary to EU law. In Test Claimants in the FII Group Litigation v HM Revenue & Customs [2008] EWHC 2893 (Ch) (27 November 2008) Henderson J dealt with a series of issues arising in such claims, and in Test Claimants in the VIC Group Litigation; FJ Chalke Ltd & Anor v Revenue & Customs [2009] EWHC 952 (Ch) (08 May 2009) he held that EU law required compound interest to be paid on such claims. This is in contrast to the position at national law, where the courts have held that similar claims to restitution of overpaid taxes (such as was pleaded in the more recent Bloomsbury International Ltd v Sea Fish Industry Authority [2009] EWHC 1721 (QB) (24 July 2009)) only attract simple interest (see my piece “Interesting Times. Overpaid Taxes, Restitution and Compound Interest” (2005) 27 DULJ (ns) 343-363). After Chalke, the Times reported that this could pave the pay for claims amounting to more than £1 billion, and in my previous post I noted that the Financial Times later reported that the Revenue had put aside five times this amount to deal with these and similar claims.…

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Restitution of overpaid VAT – clouds and silver linings

23 July, 200912 August, 2016
| 2 Comments
| Restitution

EU law has thrown up some very abstruse issues, none more so that the compatibility of national VAT regimes with European VAT Directives. Where there has been a charge to tax pursuant to national rules which infringe EU law, then that overpayment of tax can be recovered.

GE Capital solutions logo, via the GE websiteSometimes the issue concerns a relatively straightforward overpayment. For example, the Irish Times reported a little while ago that GE Capital Woodchester Ltd has brought legal proceedings against the Revenue claiming it has overpaid some €19 million due to the State’s alleged failure properly to implement an EU directive related to the VAT treatment of hire purchase transactions. The principle of restitution of overpaid taxes is well established at Irish law (see O’Rourke v The Revenue Commissioners [1996] 2 IR 1 (HC, Keane J) and Harris v Quigley [2006] 1 IR 165, [2006] 1 ILRM 401, [2005] IESC 79 (01 December 2005) following Woolwich Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf); see also In re Article 26 and the Health (Amendment) (No 2) Bill, 2004 [2005] IESC 7 (16 February 2005)) so the main question in the Woodchester proceedings (at least as they appear from the newspaper report) will be whether the overpayment is in fact made out.…

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Tory Island and Unjust Enrichment – continued

18 July, 200928 November, 2012
| 11 Comments
| Restitution, Tory Island

Tory Island coastline, via the BBC websiteI wrote in April about the case brought by film-maker Neville Presho, whose holiday home on Tory Island had disappeared in his absence, replaced by a car park for an adjacent hotel. At that stage, Mr Justice Murphy suggested that there may be a restitution claim for the hotel’s use of the site as a car park, and adjourned the case to receive submissions as to remedy. He gave judgment yesterday (Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ news). Murphy J held that an equitable remedy lay not in the re-instatement of the original property but in the provision of a comparable dwelling on this island or its market value, and he adjourned to October the issue of which of those options should be chosen. And so we must wait some more to learn whether the remedy really is restitutionary or whether it is founded upon more general considerations.…

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What is unjust enrichment? is it comedy?

5 June, 20099 June, 2009
| 7 Comments
| Restitution

Charlie Webb poses the provocative question “What is Unjust Enrichment?” in the title of an important piece just published in (2009) 29 (2) Oxford Journal of Legal Studies 215-243. His basic point is that whilst the existence of a law of Restitution concerned with reversing unjust enrichments is largely uncontroversial, the ability of unjust enrichment to account for all restitutionary claims is far less so, and he therefore addresses the question of what role a conception of unjust enrichment can and should play in presenting and justifying the modern law of Restitution. Moreover, an excellent Irish perspective on this question is provided by Laura Farrell “The Future of the Law of Restitution in Ireland – the Unjust Question” (2008) 15(10) Commercial Law Practitioner 239.

Small image of a cauliflower, via WikipediaWhen I finished Webb’s piece, I went on to read some of the essays in The Fifth Remedies Discussion Forum published in 42 (1) Loyola of Los Angeles Law Review (2008) (currently here, but soon probably here), and whilst I was on the website, I took the opportunity to go back and look at the previous Remedies Forum also hosted by that Review. That earlier one was largely devoted to the Law of Restitution, and one of its themes was was that this subject should find a more prominent home in law school curricula, a sentiment with which I entirely agree.…

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A bank error in your favour is not a gift from God

31 May, 200919 September, 2022
| 15 Comments
| Mistaken payments, Restitution

Well, I mean, yes idealism, yes the dignity of pure research, yes the pursuit of truth in all its forms, but there comes a point I’m afraid where you begin to suspect that if there’s any real truth, it’s that the entire multi-dimensional infinity of the Universe is almost certainly being run by a bunch of maniacs. And if it comes to a choice between spending yet another 10 million years finding that out, and on the other hand just taking the money and running, then I for one could do with the exercise.

Frankie, one of the white mice in Chapter 31 of The Hitchhikers’ Guide to the Galaxy by Douglas Adams

It seems that a New Zealand couple, faced with a bank error in their favour of NZ$10m (€4.5m), similarly decided that they could do with the exercise: they, too, took the money, and ran; David Randall brings the story up to date in today’s Independent on Sunday (substantially reprinted in today’s Sunday Tribune:

On the trail of the 10 million dollar runaways

A month ago, Leo Gao and his girlfriend Kara [Hurring] were like millions of couples around the world as they struggled to pay their bills and keep their business [a filling station] afloat.

…

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