Volume 23(2)
December 1993
ARTICLES
No Consideration: Restitution After Void Contracts (pp 195-234)
Peter Birks (Regius Professor of Civil Law, All Souls College, Oxford)
Those who transfer value under void contracts have no remedy in contract and little to expect from the law of property, since nullity does not in general prevent property passing. However, it has been recently held in litigation following void interest swaps that the value transferred under a void contract, because it passes for ‘no consideration’, becomes an unjust enrichment of the recipient at the transferror’s expense, so that restitution must follow even where the void contract has been fully executed on both sides.
Restitution for ‘no consideration’ is alien to the law of unjust enrichment in the common law. In particular: (i) parties to a fully executed contract, though it be void, have no substantial reason for restitution; (ii) ‘failure of consideration’, property understood, can explain all cases of restitution where the defendant has not completed his part; (iii) cases advanced as warranting a new ground for restitution, called ‘no consideration’ and distinct from failure of consideration, turn out on closer inspection not to go beyond failure of consideration; (iv) the new doctrine creates an unacceptable discontinuity with the past, unsettling the foundations on which leading cases have been argued and decided, departing from the previous treatment of void contracts and contradicting the leading treatise on restitution. These arguments notwithstanding, it will be true that in a jurisdiction which allows restitution for mistake of law, the results illegitimately attained through ‘no consideration’ will be largely attainable through mistake.
Nevertheless, the further progress of ‘no consideration’ should be resisted because it constitutes a standing invitation to borrow the language of civilian systems (‘sine causes’, ‘sans cause’, ‘ohne Rechtsgrund’), and civilian terminology can only do harm if it is imported without civilian substance.
Executors of Unproved Wills: Status and Devolution of Title in Australia (pp 235-250)
Neville Crago (Associate Professor of Law, The University of Western Australia)
Many estates of deceased persons are administered in Australia by an executor who does not obtain probate of the will. This article considers the authority of such an executor to act, the source of his or her title (if any) to assets of the estate, and suggests the proper legal bases upon which those assets may be dealt with. It is shown that a fundamental difference in approach exists in this country as between those jurisdictions in which executorial title derives solely from the grant of probate and those in which it rests upon some other basis.
Assignment of Contractual Rights and Duties: Recent English Developments (pp 251-263)
Michael Furmston (Professor of Law, University of Bristol)
Much modern wealth lies in contractual rights. The rules governing the transfer of such rights are therefore of great practical importance. This paper analyses four recent English cases which have considered aspects of these rules and in particular: (i) when a contract calls for personal performance; (ii) the circumstances in which a defence or claim available against an assignor can be raised against an assignee; and (iii) the effects of prohibitions on assignment contained within the contract. The fourth case also considers a point of general importance to contract lawyers — namely, when can A recover damages for breach of contract with B when B’s breach has primarily caused loss to C? The four cases considered are: Southway Group Ltd v Wolf (1991), Pan Ocean Shipping Co Ltd v Creditcorp Ltd (1993), Linden Gardens Trust v Lenesta Sludge Disposals (1992) and St Martin’s Property Ltd v Sir Robert McAlpine (1992).
International Litigation: Choice of Forum (pp 264-278)
Lakshman Marasinghe (Professor of Law, The University of Windsor, Canada)
This article examines the different approaches of the English and Australian courts to choice of forum in international litigation. Special attention is paid to choice of forum in family law, torts and jurisdiction over foreign land.
Finance Leases and Loss of Bargain: Judicial Impulses in the High Court (pp 279-298)
Nyuk Y Chin (Associate Professor of Law, The University of Western Australia)
High Court decisions on the recovery of damages for loss of bargain by a party who terminates a contract in the absence of a repudiatory breach, or breach of an essential term, by the other party have been the subject of considerable comment. Much remains unsatisfactory. This paper explores the problem in the context of finance leases.
Imprisonment as a Last Resort: Section 19A of the WA Criminal Code and Non-Pecuniary Alternatives to Imprisonment (pp 299-319)
Neil Morgan (Senior Lecturer, The University of Western Australia)
In recent years both the legislature and the courts have espoused the policy of imprisonment as a last resort. This article examines the impact of section 19A of the Criminal Code 1913 (WA) before exploring the rationale and use of probation, community service, discharges and bonds. From a detailed analysis of legislative changes and recent case law, the author develops criticisms of the legislature for failing to provide either a coherent and consistent statutory framework or the mechanisms for properly implementing the policy of section 19A. It is argued that the Supreme Court has an important role to play in enhancing the use of alternatives to custody, particularly community service. Practical suggestions are made as to how the Supreme Court may seek to ensure the maximisation of this and other options.
NOTES 
Foreseeability Sinks and Duty of Care Drifts: The High Court Visits Rottnest (pp 320-328)
Judy Allen (Lecturer, The University of Western Australia) and Marion Dixon
In Nagle v Rottnest Island Authority (1993), the High Court found the Rottnest Island Authority liable for injuries suffered by the appellant, Nagle, when he dived from a ledge into the water of a bathing area off Rottnest Island and hit his head on a submerged rock. The case is of general interest because it provides the latest statement by the High Court of the proper approach to questions of foreseeability and duty of care in negligence cases.
Insolvent Trading: Hidden Risks for Accountants and Banks Participating in ‘Work-outs’ (pp 329-334)
G Syrota (Editor, The University of Western Australia Law Review)
What is the difference between a company ‘doctor’ and a company director? This conundrum has recently been explored in an important UK decision (Re Tasbian (No 3) [1992] BCC 358) which has implications for chartered accountants and other financial advisers in Australia as well as England, particularly those working in the insolvency field.
Manner and Form in Western Australia: An Historical Note (pp 335-346)
Robert S French (Justice of the Federal Court of Australia)
Procedural requirements under State constitutions have typically applied to the alteration of laws relating to the constitution of the legislature. Questions have arisen whether manner and form provisions may be used to protect agreements between State governments and miners or developers by appropriate conditions on any variation to the agreements: see Comalco Ltd v Attorney-General (1976) and West Lakes Limited v State of South Australia (1980). It may well be the case that there are other activities and principles deserving of protection by manner and form legislation. The independence of the State judiciary might be one area that could be addressed and better protected; the independence of Parliament itself from the influence of the Executive is another. A State Bill of Rights could also conceivably be so entrenched. The positive possibilities of constitutional manner and form requirements should not be overlooked. Their vice in limiting the scope of action of subsequent legislatures suggests, however, that they should be applied with considerable caution.
The Courts and People with an Intellectual Disability (pp 347-351)
RD Nicholson (Justice of the Federal Court of Australia)
This note deals with two documents launched by the Chief Justice of Western Australia on 16 June 1993, relating to dependents with an intellectual disability. They are entitled ‘Issues for Consideration of the Courts’ and ‘Guidelines for Associates, Orderlies and Security Officers’. What is the purpose of the documents? How effective are they likely to be?
Political and Legislative Responses to Mabo (pp 352-361)
Richard H Bartlett (Professor of Law, The University of Western Australia)
This note reviews the legislative responses to Mabo (No 2) (1992) by the government of Western Australia. It remains unclear whether there is any prospect of a long-term resolution of the question of the rights to land of Aboriginal people.
A Taxing Time: The High Court and the Tax Provisions of the Constitution (pp 362-371)
Peter Johnston (Visiting Fellow, The University of Western Australia)
In two recent cases the High Court has revisited the concept of what constitutes a tax. This note explores the more contentious of the two: Australian Tape Manufacturers’ Association Ltd v The Commonwealth (1993).
BOOK REVIEWS
Whitlam Re-visited: PolicyDevelopment, Policies and Outcomes, Hugh Emy, Owen Hughes & Race Mathews (eds) (Reviewed by Kim Beazley)
Evidence and Procedure in a Federation, Archie Zariski (ed) (Reviewed by BC Cairns)
Tort Liability for Psychiatric Damage, Nicholas J Mullany & Peter R Handford (Reviewed by Peter Cane)
Psychiatry in Court, Peter Shea (Reviewed by G Syrota)
Mabo: A Judicial Revolution, MA Stephenson & Suri Ratnapala (eds) (Reviewed by Richard H Bartlett)
The Politics of Criminal Law Reform in the Nineteenth Century, John Hostettler (Reviewed by G Syrota)
International Maritime Boundaries, Jonathan I Charney & Lewis M Alexander (eds) (Reviewed by Francis M Auburn)
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