Issues in Unjust Enrichment

Transcription

1 5.5 CPD HRS INTENSIVE Issues in Unjust Enrichment JULY

2 FROM THE CHAIR The law of restitution has a history not much shorter than the law of contract and tort law, but it remains an enigmatic cadet branch of the law of obligations. New Zealand s legal system has so far managed to steer clear of the large issues on the topic, including whether New Zealand recognises an open-ended cause of action in unjust enrichment. In that respect, perhaps, it has been fortunate! Nonetheless, the country has consistently produced about a dozen restitution decisions at High Court level or above a year, from which one can safely assume that there are considerably more restitutionary disputes each year before the District Court, Disputes Tribunals, arbitrators and mediators. It is timely for NZLS CLE to have an intensive that takes stock of the law of restitution in New Zealand and brings us up to date with major developments abroad. It has assembled a panel of academic and practising experts to do this. The intensive will be of use to all civil litigators, and also to commercial solicitors faced with situations where gaps appear in contractual arrangements. I encourage you to join us. Programme Prof. Peter Watts QC REGISTRATION Tea and coffee will be available INTRODUCTION TO THE DAY Prof. Peter Watts QC SESSION 1: SUMMARY OF JURISDICTION What is unjust enrichment? How is unjust enrichment treated in the United Kingdom and Australia? And where does New Zealand jurisprudence sit in comparison? This introductory session explores what unjustness means and in which situations a claim has been successful. Examples will include mistake, absence of consent, breach of fiduciary duty, duress and undue influence. The session will take a comparative approach using not only English and Australian jurisprudence

3 CHAIR Presenters to explore the question, but also German law and the United Nations Convention on the International Sale of Goods to highlight the significance of the unjust enrichment paradigm. Dr. Petra Butler and Jessica Palmer MORNING TEA SESSION 2: ENRICHMENT Presenter Any claim in unjust enrichment depends on the defendant having been enriched in some way. However, the requirement gives rise to significant difficulty and complexity. What test(s) is to be applied to determine the question? How, and when, is an enrichment to be valued? What is the relationship between claims based on enrichment and claims for remuneration of services? This session will address such issues with reference to practical examples, recent case law and academic literature. Rohan Havelock SESSION 3: STANDARD FACT PATTERNS Presenter A practitioner focused session, stepping around substantive cases to focus on recent pleadings in unjust enrichment. Subject matter covered will include: Pragmatic pleading illustrating how a good advocate might commence or defend a restitutionary action Commencing claims for: knowing receipt of money following a breach of fiduciary duty, money had and received on the basis of a payment being made without authority, and tracing claims Reflections of specific case law with an analysis of the key themes and principles that are emerging from these cases. Justin Smith QC LUNCH SESSION 4: MISTAKEN TRANSFER AND FAILED CONDITIONS/FAILURE OF CONSIDERATION A mistaken payment is a core case of unjust enrichment giving rise to restitution. This session will describe the cause of action

4 in New Zealand, and discuss the crucial distinction between performance mistakes, and mistakes made in forming contracts (now regulated by statute) and giving gifts. It will also analyse the related fact pattern of payment on failed conditions (where s 9 of the Contractual Remedies Act 1979 is important, but room is also left for the common law). Presenter Benedict Tompkins SESSION 5: ON THE RECEIVING END: DEFENCES TO A CLAIM OF UNJUST ENRICHMENT Defences play a substantial and important role in regulating the long reach of unjust enrichment claims, displacing the prima facie liability. We discuss the defences and cover recent developments; whether good consideration is the poor cousin of bona fide change of position (or vice versa); and tackle the thorny issues of illegality and counter-restitution. Presenters Andrew Barker and Bob Hollyman AFTERNOON TEA SESSION 6: RESTITUTION FOR WRONGS Presenters What money remedy does a party have for a breach of contract or other wrong, absent identifiable loss? Is the wrongdoer able to benefit from the wrong with impunity? This session will explore: The cases where such remedies are available Whether so-called restitutionary damages are compensatory or restitutionary? What role (if any) does unjust enrichment play here? Tim Mullins and Andrew Skelton SUMMARY OF THE DAY Chair: Prof. Peter Watts QC LEARNING OBJECTIVES After attending this intensive you will: Understand recent developments in the law of restitution. Be able to apply this knowledge to your practice.

5 CHAIR PROF. PETER WATTS QC, PROFESSOR OF LAW, UNIVERSITY OF AUCKLAND, AUCKLAND Peter Watts QC has taught the law of restitution across nearly three decades. He is the New Zealand contributing editor of the Restitution Law Review (UK). He is the General Editor of Bowstead & Reynolds on Agency, and author of books on company law. Peter is a door tenant at Bankside Chambers in Auckland, and Fountain Court, The Temple, London. PRESENTERS ANDREW BARKER, BARRISTER, AUCKLAND Andrew is a barrister in practice at Shortland Chambers. He has a broad practice in most areas of commercial litigation. Andrew was formerly a lecturer at the Faculty of Law, University of Otago. DR. PETRA BUTLER, ASSOCIATE PROFESSOR, VICTORIA UNIVERSITY OF WELLINGTON, WELLINGTON Dr Petra Butler is a German and New Zealand qualified lawyer and an Associate Professor at Victoria University. Besides her interest in domestic and international human rights law she teaches and researches selected civil law issues. Dr Butler has published extensively and regularly advises the Government and private clients in her areas of interest. ROHAN HAVELOCK, BARRISTER, AUCKLAND Rohan Havelock is a barrister practising in civil and commercial litigation, and a Senior Lecturer at the Faculty of Law, University of Auckland. He holds the degree of Master of Laws (First Class Honours) from the University of Cambridge. Rohan s practice areas and research interests include equity, restitution, insurance law, and construction law. BOB HOLLYMAN, BARRISTER, AUCKLAND Bob practises as a barrister primarily in relation to commercial litigation. He was admitted in 1995 and has been a member of Shortland Chambers since Bob teaches Advanced Torts at Auckland University.

6 TIM MULLINS, LEESALMONLONG, AUCKLAND Tim practises primarily in commercial litigation, regulatory/competition law matters and intellectual property. He has advised on and conducted proceedings concerning various claims with restitutionary dimensions, including misappropriated money, quantum meruit and constructive trusts. Tim has also taught as an adjunct Lecturer at the University of Auckland, Faculty of Law. JESSICA PALMER, FACULTY OF LAW, UNIVERSITY OF OTAGO, DUNEDIN Jessica is a senior lecturer at Otago University and teaches courses in contract, equity and commercial law. She has published articles and essays on issues of equity and restitution and is an author of Equity and Trusts in New Zealand (Butler (ed), 2nd ed, Thomson Brookers, 2009). Jessica is a graduate of Auckland and Cambridge Universities and has worked at a large national law firm and as a judges clerk. ANDREW SKELTON, BARRISTER, WELLINGTON Andrew is a barrister at Capital Chambers, Wellington. He was previously a partner at Kensington Swan from Andrew specialises in civil litigation and arbitration, particularly in the areas of contract and joint venture disputes, construction, property, leases, procurement and disciplinary proceedings. He has degrees in law from Canterbury University, University College London and Oxford University. JUSTIN SMITH QC, BARRISTER, WELLINGTON Justin handles general commercial litigation. He is a former Crown Prosecutor ( ), was a partner at Kensington Swan (Wn & Ak) ( ) and a partner at Russell McVeagh (Wn) ( ). Justin went to the independent bar in He has represented numerous clients, from individuals to the largest national and international corporates, at all levels. BENEDICT TOMPKINS, GILBERT WALKER, AUCKLAND Benedict is a commercial litigator, with particular interests in restitution, agency, commercial equity, professional negligence and arbitration. He appears regularly in the High Court, tutors torts at the University of Auckland, and is a contributing author of Cross on Evidence. Benedict was previously a Crown Prosecutor, and has published (with Professor Peter Watts QC) on the intersection of unjust enrichment and the criminal law.

7 REGISTRATION FORM Online registration and payment can be made at WHO SHOULD ATTEND This intensive will appeal to high level insolvency, property relationship practitioners and the bar. It will also be of use to civil litigators and commercial solicitors where gaps appear in contractual arrangements. PLEASE REGISTER ME FOR: Issues in Unjust Enrichment CENTRE DATE VENUE Wellington 23 July Michael Fowler Centre Auckland 24 July The Langham LAST NAME FIRST NAME TITLE (PLEASE PRINT) NAME FOR NAME TAG FIRM / ORGANISATION PO BOX DX TOWN / CITY POSTCODE PHONE FAX DIETARY REQUIREMENTS

8 FEE (INCL GST) Registrations will not be actioned until payment is received. The registration fee includes all materials, morning and afternoon teas and lunch. A booklet of papers will be given to participants when they register on the morning of the intensive. Please note: NZLS members include NZLS Associate members. Earlybird rate By 23 June OR After 24 June NZLS member $625 $675 Non-member $675 $725 Total amount due: $ PAYMENT I attach a cheque made payable to NZLS CLE Ltd Please debit my credit card account Mastercard Visa Amex CARD NUMBER EXPIRY DATE EXPIRY DATE CARD SECURITY CODE NAME ON CARD SIGNATURE OF CARDHOLDER SEND TO: NZLS CLE Ltd PO Box 5041, Wellington 6145 DX SP20202 or Fax: INQUIRIES: or cle@lawyerseducation.co.nz CANCELLATION AND REFUND POLICY Please note: Minimum and maximum numbers apply. Registrations will be accepted on a first-come/first-served basis. Registrations close 10 working days before the presentation date (the closing date). NZLS CLE Ltd reserves the right to cancel any session that does not reach the budgeted minimum number of registrations. This decision will be made on the closing date and a full refund will be made to each registrant of the cancelled session. If you cancel your registration before the closing date, a refund will be made, less a $100 administration fee. After the closing date, there will be no refund. You may transfer your registration to another person until five working days before the presentation. Please advise NZLS CLE Ltd in writing of the change. PRIVACY ACT 1993 The information requested on this registration form is for NZLS CLE Ltd and the sponsors only. I do not wish the sponsors to receive my contact details. TO REGISTER AND PAY ONLINE OR VIEW THE CLE PROGRAMME AND PURCHASE BOOKLETS SEE