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Extra info for Fault Lines in Equity

Example text

9 More recently, in Lumbers v W Cook Builders Pty Ltd (In Liq),10 four members of the High Court stated that unjust 3 See, eg the criticisms by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, (2007) 230 CLR 89 of the New South Wales Court of Appeal decision overturned in that appeal. 4 See Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68, (2001) 208 CLR 516 [73]: ‘Top-down reasoning’ is reasoning ‘by which a theory about an area of law is invented or adopted and then applied to existing decisions to make them conform to the theory and to dictate the outcome in new cases’.

36]. 77 Friend (n 11). 78 Tanwar (n 67). 83 I propose to consider one example of the more restrictive approach of the English courts in detail: the law of estoppel. 85 In that case, the House of Lords rejected liability on the basis of an estoppel, holding that an oral guarantee was unenforceable for lack of writing (as required by Statute of Frauds successor legislation). The creditor argued that it had detrimentally relied on the oral promise of guarantee. The House of Lords rejected this argument: the oral promise of itself could not found an estoppel.

From some reading of House of Lords’ decisions, one gets a sense that unjust enrichment has the status of the recently-arrived, but more trustworthy, Dr Jekyll, whereas that long-term resident, equity, has some undesirable Mr Hyde-like qualities, for example, legal uncertainty generated by concepts such as unconscionability and remedial discretion. Unjust enrichment, and specifically, the three-stage steps of analysis advocated by theorists, is now regularly used by the English courts at all levels, and has been endorsed by the House of Lords.

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