Melbourne Law School - Theses

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Type: Coursework thesis × Start date: 1970 × End date: 1979 × Author: Hardingham, I. J ×

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    The recovery of mistaken payments
    Hardingham, I. J ( 1970)
    The aim of this dissertation is to provide a survey and analysis of the occasions upon which payments made by mistake may be recovered. The dissertation is divided into four parts : Part I deals with the historical foundations and the philosophical implications of the action, money had and received, which is commonly employed to recover mistaken payments. The "gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." This then is the broad theme or general criterion that I have tried to bear in mind and introduce throughout this dissertation : is the defendant, in the circumstances, obliged by the ties of natural justice and equity to make restitution? Part II deals with the recovery of money paid under mistake of fact. More specific criteria need to be formulated than that already given in order to ascertain when recovery will be allowed. A test based upon fundamentality of error is posited. Part III deals with the recovery of payments made under mistake of law, after discussing briefly the distinction between mistakes of law and of fact. Since payments made voluntarily under mistake of law cannot, as a rule, be recovered, it is necessary to investigate when a payment may be termed "voluntary". Exceptions to the general rule both at law and in equity are considered. Part IV sets out limitations, qualifications, and defences to actions for the recovery of mistaken payments. Throughout this dissertation I have referred in the main to English and Australian decisions; but I have also drawn on those of other Commonwealth countries. Occasional reference has been made to American law which, as revealed in the pages of the American Law Institute's Restatement of the Law of Restitution, provides an interesting contrast with our local experience and perhaps predicts its destiny. The law is stated as on 31st May, 1970.