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Thursday, 15 October 2009

Just released, another book by Dr Elise Bant, UWA Honorary Fellow (law) and visiting lecturer for the unit, Unjust Enrichment . Elise says her book, The Change of Position Defence (Hart, Oxford 2009) is ”the first exhaustive examination of the leading defence to claims in unjust enrichment. It examines all the current authorities, as well as the law of analogous defences, to provide an authoritative and rigorous definition of the defence."

The aim of this book is to define and explain the operation of the defence of change of position in Anglo-Australian law. It is a widely accepted view that the defence is a modern development, the first express recognition of which can be traced in England to the seminal 1991 decision of the House of Lords in Lipkin Gorman (a firm) v Karpnale Ltd . Commentators have accordingly tended to focus on post-Lipkin case law in discussing the defence and its operation.

This work takes a different stance, arguing that the defence is best understood by placing it within its broader historical and legal context. Part One commences this process by considering the law of estoppels, the agent’s defence of payment over and the doctrines of rescission, all areas which are shown to shed considerable light on the change of position defence. This analysis lays the foundations for the examination of the defence in a manner consistent with the law as a whole-the task of part two of the book. Here the features of the defence are identified, examined and clarified by reference to the authorities on the defence, considerations of policy and principle and the lessons derived from the doctrines and defences discussed in part one. The book concludes by assessing the ongoing relationship between change of position and other related defences in the light of the analysis in Part Two.

This work demonstrates that, properly understood, the change of position defence operates in a rational and justifiable manner within its broader private law context. The analysis thereby meets the concern that the defence operates in an unprincipled way or by reference to ‘that vague jurisprudence which is sometimes attractively styled “justice as between man and man”’.

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