3.1 The rule operates to deny recovery of moneys paid under mistake where the court categorises the mistake as one of law as distinct from fact. The general nature of this fact/law distinction will be examined briefly, before we turn to the various situations where the rule denies recovery. Later in this chapter we shall discuss briefly the various exceptions to the general rule.
I. THE FACT/LAW DISTINCTION
3.2 As we have already indicated (paras 2.2 - 2.5) the early cases made no distinction between mistakes of fact and mistakes of law. However, Bilbie v Lumley and the decisions which followed it denied recovery where the relevant mistake was categorised as one of law. Henceforth there were many cases grappling with the distinction.
3.3 The leading early case was Kelly v Solari1 which, like Biblie v Lumley, also involved a mistaken payment made under an invalid insurance policy. The court had to decide whether a payment make to Mrs Solari under her husband’s life insurance policy, which had previously lapsed when a premium had not been paid, could be recovered by the insurance company. The directors who paid out under the policy had lapsed. Lord Abinger directed a new trial to clarify the issue of whether the directors had knowledge of the facts at the time they made the payment, and stated:
The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again....[T]he knowledge of the facts which disentitles the party from recovering must mean a knowledge existing in the mind at the time of payment.2
His view was that the plaintiff insurers in Biblie v Lumley would have been found to have had actual knowledge of the letter shown to them which was material to the claim, and that therefore the plaintiffs in Biblie v Lumley had full knowledge of the facts. The plaintiff insurer in Kelly v Solari, however, having forgotten the material fact, did not have full knowledge of the facts which disentitled the insured from recovering. The distinction between Biblie v Lumley and Kelly v Solari was clearly drawn by Parke B who, in course of argument, said of the former case:
All that that case decides is, that money paid with full knowledge of all facts cannot be recovered back by reason of its having been paid in ignorance of the law.3
3.4 In many of the later leading cases the courts have grappled with the fact/law distinction.4 In Solle v Butcher5 one judge categorised a mistake as one of law, another as one of fact, whilst the third decided the cases on another ground not involving the fact/law distinction. Commentators are generally agreed that judicial attempts to define the distinction have been unsuccessful.6 As the Australian editors of Chestire and Fifoot’s Law of Contract conclude:
The same statement would appear to be one of fact or of law according merely to the degree of detail by which it is accompanied. The judges, in truth, whether they are dealing with misrepresentation or with mistake, have failed to find a workable differentiation between law and fact.7
This conceptual difficulty of distinction is one of the major grounds on which the present law is attacked. It has certainly allowed wide leeway, for as Professor H W R Wade has suggested:
Escaping from tight corners by manipulating the distinction between law and fact has always been a favourite judicial manoeuvre, and I treasure the way in which this truth was once expressed by Deane Leon Green of Northwestern University in his book Judge and Jury: ‘No two terms of legal science have rendered better services than “law” and “fact” .... They readily accommodate themselves to any meaning that we desire to give them.... What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy.’ The anathema thus pronounced has not prevented numerous judges from attempting definitions, nevertheless, and their opinions have differed as radically as one would expect.8
3.5 Sometimes courts exercising equitable jurisdiction have been prepared to set aside or rectify transactions or contracts upon the ground of mistake, regardless of whether the mistake was one of fact or law,9 whilst on other occasions they have asserted a distinction between mistake of fact and mistake of law.10 However the equitable jurisdiction relating to recovery of money paid under mistake is limited. If a proceeding in equity is in substance an action for money had and received, the rule in Bilbie v Lumley applies to prevent recovery.11 Where no issue of administration of estates exists and where the claim is simply between a party who paid money mistakenly to another, equity follows the common law and generally refuses recovery where the payment was made merely under a mistake of law.12
3.6 Courts of equity have however on some occasions taken a narrow view of what is a mistake of law. It will be seen later (para 3.10) that common law courts generally regard a mistaken construction of a contract as a mistake of law with the consequence that payment made under the belief that the payment was obliged by a contract is irrecoverable. In the equitable jurisdiction such mistakes have usually been regarded as mistakes of fact and it is only mistakes as to the general law that have precluded appropriate equitable relief.13 Again however, this qualification appears of little interest to the issue raised in this report because, when it comes to the right to recover money paid under mistake, without more, equity follows the general rule in Bilbie v Lumley and denies recovery.
II. EXAMPLES OF THE GENERAL RULE’S APPLICATION
3.7 The operation of the general rule denying recovery of money paid under a mistake of law can be illustrated by the following types of cases:
- mistake as to statute law or general law;
- misconstruction of private agreements or documents; and
- money paid in reliance on judicial decisions subsequently reversed or overruled.
A. Mistake as to Statute Law or General Law
3. 8 If a person pays money due to a mistaken construction of a statute or a misinterpretation of the common law, or through ignorance of a statute or principle of common law which would make the payment unnecessary, then, if there are no additional factors (such as duress or oppression) present, the payment is irrecoverable. The recipient may retain the money even though it would not have been paid had the payer known the true situation (ie even though there is unjust enrichment). Thus, in Sharpe Bros and Knight v Chant,14 increased rent paid where both landlord and tenant were unaware of a statute15 which prevented such increase, could not be recovered, nor deducted from future rent payments.
3.9 Some of the cases in this category involve unsuccessful attempts to recover from the Crown moneys paid under a mistaken belief as to liability under a taxing statute, where the person paying could at any time have withheld payment and tested in a court the issue of liability later asserted.16 The rule has however worked equally against the Crown.17
B. Misconstruction of Private Agreements or Documents
3.10 A person who misconstrues a contract or deed and thereby pays money that is not in truth due cannot recover the mistaken payment.18 For example, in Re Hatch,19 a husband promised by deed to pay an annuity to his wife. Although the deed, on its true construction, authorised the husband to deduct tax, the husband mistook his legal right and neglected to do this. His estate was unable to recover the money overpaid or even to offset the overpayment against future instalments of the annuity. The judge concluded that “the payment having been made under a mistake of law the parties are left as they are without any resultant rights”.20
3.11 We are not aware of any cases in which courts of equity have reached a different conclusion where application was made simply to recover moneys paid under a mistake of this kind,21 although in other areas equity has fairly consistently categorised such mistakes as mistakes of fact.22
C. Money Paid in Reliance on Judicial Decisions Subsequently Reversed or Overruled
3.12 A party may make a payment to another in the belief that money is due because liability is or appears to be established by a judicial decision, not directly involving those parties, but clearly applicable to their situation. That judicial decision may be subsequently reversed on appeal or overruled by a superior court in later litigation between other parties. The money initially paid is, however, irrecoverable.23 Thus, in Henderson v Folkestone Waterworks Co,24 a houseowner failed to recover water rates he had previously paid without argument, despite the fact that a subsequent decision of the House of Lords25 had conclusively established that the defendant company was not entitled to claim such rates.
3.13 Indeed it makes no difference if the person who made the payment did so pursuant to a judgment of a court because, unless and until that judgment is reversed on appeal,26 it will determine the liability between the litigants even if the principle it embodies is no longer generally accepted. The unsuccessful party’s right to appeal will generally be barred by lapse of the fairly short period stipulated in rules of court for that step to be taken (see further para 5.26).
3.14 Various theories underlie this uncompromising attitude of the common law. One reason is that the party who made the initial payment had the option of challenging its enforceability, taking the matter on appeal if necessary, in order to establish the principle now relied upon to negative liability. As Latham C J put it in Werrin v The Commonwealth:
if a person, instead of contesting a claim, elects to pay money in order to discharge it, he cannot thereafter, because he finds out that he might have successfully contested the claim, recover the money which he so paid merely on the ground that he made a mistake of law.27
This, of course, is slightly unrealistic given that all litigants do not have the means to conduct extended litigation over sums of money which may be slight compared to the cost of prosecuting it. It also overlooks the fact that resort to a higher court initially may not have produced the result later established. It is now universally recognised that judges do, on occasion, change the common law rather than simply declare what it is.
3.15 A more significant basis for declining recovery in these circumstances is the belief that any other approach would put at risk many claims “voluntarily” settled in the past.28 This factor has led some jurisdictions to modify the statutory repeal of the rule in Bilbie v Lumley so as to exclude payments where the mistake of law was the result of reliance on a judicial precedent that was later reversed. We shall discuss this further below (paras 5.19-5.27).
III. SPECIFIC EXCEPTIONS TO THE GENERAL RULE: WHEN MONEY PAID UNDER MISTAKE OF LAW CAN BE RECOVERED
3.16 Brief reference has already been made (para 1.3) to the fact that the general rule has many exceptions. There is no common theme running through them and they “establish an elaborate cluster of artificial distinctions and vague standards for relief which have created an unusually chaotic body of jurisprudence”.29
A. Mistake of Foreign Law
3.17 A mistake of foreign law is treated as a mistake of fact for the purposes of determining whether recovery of moneys will lie. The theory is that foreign law must be proved by calling expert witnesses to give evidence as to its content,30 although it is difficult to see why this provides any rational basis for allowing recovery of moneys mistakenly paid. A judge may be able to determine and state the (local) law much more quickly than a question of fact, yet mistake as to the former will generally preclude recovery of moneys.
B. Public Moneys Mistakenly Disbursed Without Legal Authority
3.18 Where moneys are wrongly disbursed by a servant of the Crown it makes no difference whether there was a mistake of fact or a mistake of law. They are recoverable by the Crown because, as the Privy Council pointed out in Auckland Harbour Board v The King, it has been a constitutional principle since the seventeenth century that “no money can be taken out of the consolidated Fund into which the revenues of the State have been paid, excepting under a distinct authorisation from Parliament itself”.31 The distinguishing elements in this exception are, firstly, that the source of the money was government revenue and, secondly, the fact that no parliamentary authority was given for the payment made, whereby it attained the character of an illegal payment.
3.19 This exception has been restricted in Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd.32 The Federal Court held that the Commonwealth was bound by payments made other than in accordance with a contract since the payments were not made mistakenly but as variations of the price agreed in the contract. Ellicott J (Blackburn and Deane JJ concurring) stated that:
The principles enunciated in the Auckland Harbour Board case do not... operate to exclude the application to contracts by the Commonwealth of the ordinary rules of contract law.33
His Honour distinguished Auckland Harbour Board v R and Commonwealth v Burns as cases which involved the failure to meet a condition on which money was paid out of consolidated revenue, and as involving mistake. The payment made to Crothall Hospital was held not to be mistaken and not to be made without authority. The ultra vires or illegal nature of the payment, then, is not solely the base of recovery by the Crown; it is the illegal nature of the transaction plus the presence of a mistake.
C. Payments Mistakenly Made to an Officer of the Court
3.20 Payments mistakenly made to an officer of the court (even when the mistake is one of law) are recoverable. Officers of the court include trustees in bankruptcy and receivers appointed by the court. Ex parte James34 was an instance of a trustee in bankruptcy being ordered to repay moneys mistakenly paid by an execution creditor who believed that the trustee in bankruptcy was entitled to it. In that case James L J took the view that the trustee in bankruptcy, as an officer of the court:
... ought to set an example to the world by paying it to the person really entitled to it. In my opinion the Court Of Bankruptcy ought to be as honest as other people.35
This ignores the fact that the degree of honesty required of other people does not compel them to repay moneys received when they are paid under a mistake of law, regardless of the honesty or morality of the situation. The exception may really illustrate judicial squeamishness with the propriety of the general rule. The limits of this exception are not precisely drawn, but it does not extend to require court officers to refund payments made to the bankrupt or insolvent company under mistake of law before the bankruptcy or insolvency. It is only the acts of the officer of the court, and not the acts of third parties, which are critical in determining whether it is a “shabby thing” to retain the money paid under mistake.36
D. Payments Mistakenly Made by the Court
3.21 Unlike the preceding category, there is no clearly expressed policy justification for the right of a court which pays out money under a mistake of law to recover those moneys. Nonetheless, courts are entitled to recover moneys paid out under a mistake of law. This was established in Re Birkbeck Permanent Benefit Building Society37 where the official receiver paid out moneys to shareholders in a building society before receiving notice of an appeal to the House of Lords by the depositors in the society who also claimed the money. After the partially successful appeal38 the shareholders were ordered to repay the amount by which they had been overpaid and which they had received as a result of payment by the court.
E. Payments by Personal Representatives and Trustees
3.22 Trustees and legal personal representatives may in certain circumstances recover or set off against future payments moneys wrongly distributed to beneficiaries. Underpaid beneficiaries may also bring direct claims against those to whom trust moneys have mistakenly been distributed.39 These principles reflect the historical roots of trust law in the courts of equity, whereas the action to recover moneys paid under mistake was a creature of the common law courts. They are mentioned here nevertheless because they are another instance of a departure from the strict principles embodied in the rule in Bilbie v Lumley without any clear functional basis for the distinction.
F. Wilful Misrepresentation of Law, Want of Bona Fides, Undue Influence and Breach of Fiduciary Obligation by the Recipient
3.23 In each of these cases recovery may be permitted notwithstanding that the person making the payment was mistaken as to the law.40
G. Specific Statutory Exceptions
3.24 One area where the rule in Bilbie v Lumley has often been applied has been to defeat claims by taxpayers for the recovery of taxes paid that were ultimately shown to be not due. There are various statutory provisions allowing recovery under limited circumstances.41 The position of the Crown is discussed in more detail in paras 5.44-5.48.
IV. A MORE GENERAL QUALIFICATION TO THE RULE IN BILBIE v LUMLEY: “INVOLUNTARY” PAYMENTS
3.25 From time to time restitutionary claims have been refused on the ground that moneys were paid or benefits conferred “voluntarily”.42 Indeed, in Bilbie v Lumley itself Lord Ellenborough CJ asked the plaintiff’s counsel whether he could state any case where “if a party paid money to another voluntarily with a full knowledge of the facts of the case, he could recover it back again on account of his ignorance of the law”.43
3.26 The term “voluntary” in relation to a payment of money is used in the cases with many different meanings.44 One writer has said that, in this context, flit is merely a shorthand way of saying that there is no approved ground on which restitution of benefits can be awarded”.45 It is, however, possible to discern distinct uses of the concept.
3.27 First, it may mean that the payer was not acting under duress or any form of compulsion or coercion or undue influence.46 The presence of such factors vitiates the payment and renders it recoverable whether or not there was also some mistake of fact or law.47 One special category of duress relates to money exacted “under colour of an office” (colore officii). Where a public official refuses to grant some right, service or privilege to which the payee is entitled (either free of charge or for a lesser sum of money than the amount claimed) unless the latter complies with the official’s requirements, then the payment or excessive payment will be regarded as exacted under duress and recoverable.48 But compulsion sufficient to vitiate a payment of money can take many forms. There is a whole series of cases involving attempts to recover back taxes or other statutory exactions which were ultimately found to be not valid or due. In some cases49 the payer paid under a simple mistake of law as to liability and was met with the rule in Bilbie v Lumley (see generally paras 3.8-3.9). In others the payer was not under any mistake as to liability but, believing (and sometimes asserting) that the moneys were not due, lacked the will, means or courage to contest the impost immediately.50 Recovery is denied unless the payer can show that there was some element of coercion other than invoking legal process super-added to the fact that the impost itself had no legal basis. Refusal to grant a licence necessary to carry on a trade is an example of a factor which, if it compels the payer to submit or accompanies the payer’s mistake, will allow recovery. In Air India v The Commonwealth the New South Wales Court of Appeal summed up the authorities as establishing that to show that a payment was made under compulsion it must be shown that: (there was a fear that, if it were not paid, the payee would take some step, other than invoking legal process, which would cause harm to the payer; and (b) that this fear was reasonably caused or well-founded.51
3.28 However, where payment is made solely in submission to actual or threatened litigation the payer will not be able to assert improper compulsion because “there must be an end of litigation, otherwise there would be no security for any person”.52 As Lord Halsbury LC put it in Moore v Vestry of Fulham:
The principle of law is not that money paid under a judgment, but that money paid under the pressure of legal process cannot be recovered. The principle is based upon this, that when a person has had an opportunity of defending an action if he chose, but has thought proper to pay the money claimed by the action, the law will not allow him to try in a second action what he might have set up in the defence to the original action.53
3.29 Secondly, “voluntary” refers to the principle that money which has been paid to settle a claim by the defendant, irrespective of whether the claim is based on a true assumption, is not recoverable. The money is said to have been paid in voluntary submission to an honest claim. Whether the mistake be as to fact or law, a payer accepts the risk of mistake and intends that the payer “shall have the money at all events”.54 Restitutionary recovery is and should be denied here because there is simply no legally relevant mistake. This category of “voluntary” and irrecoverable payments includes payments made to compromise bona fide claims and litigation.55
3.30 Thirdly, “voluntary” can simply refer to a payment which, though mistaken, was made as a gift.56 The confusion about the use of the term “voluntary” is understandable when it is appreciated that the mere fact that a mistaken payment is by way of gift is no barrier to restitution.57
3.31 Occasionally the term “voluntary” has been used in relation to a mistaken payment of money as a synonym for a payment made under mistake of law.58
FOOTNOTES
1. (1841) 9 M & W 54 (152 ER 24).
2. Id at 57, 58 (ER at 26).
3. Id at 55 (ER at 25). Lord Denning’s statement in Kiriri Cotton Co Ltd v Dewani [1960] AC 192 at 204 (“money paid under a mistake of law, by itself and without more, cannot be recovered back”) also stresses that money may be recoverable if other factors are present. Indeed, in many of the cases where duress or other factors are found to be present (see para 3.27) there is no mistake as such at all.
4. For example Eaglesfield v Marquis of Londonderry (1875) 4 Ch D 693; Solle v Butcher [1950] 1 KB 671. see also the discussion in Thomas v The King (1937) 59 CLR 279 at 306-307 per Dixon J and Iannella v French (1968) 119 CLR 84 at 114-115 per Windeyer J. The onus of proving that the mistake was one of fact and not law is on the plaintiff: Avon CC v Howlett [1983] 1 AII ER 1073 at 1084-5.
5. [1950] 1 KB 671.
6. For example P H Winfield “Mistake of Law” (1943) 59 LQR 327 at 339; G H L Fridman and James G McLeod Restitution (1982) at 81. See also Dickson J in Hydro Electric Commission of Nepean v Ontario Hydro (1982) 132 DLR (3d) 193 at 201-203.
7. J G Starke and P F P Higgins (eds) Chesire & Fifoot’s Law of Contract (4th Aust ed 1981) para 2822.
8. H W R Wade “Administrative Tribunals and Administrative Justice” (1981) Aust LJ 374 at 381.
9. For example Cooper v Phibbs (1867) LR 2 HL 149.
10. For example Midland Great Western Railway Co of Ireland v Johnson (1858) 6 HLC 798 at 810-811 (10 ER 1509 at 1514).
11. See generally R P Meagher, W M C Gummow and J R F Lehane Equity Doctrines and Remedies 2nd ed para 1404.
12. Goodman v Sayers (1820) 2 J & W 249 at 263 (37 ER 622 at 627-8); Rogers v Ingham (1876) 3 Ch D 351; Merriman v Perpetual Trustee Co Ltd (1896) 17 LR (NSW) Eq 325; Ministry of Health v Simpson [1951] AC 251 at 271-2; Air India v The Commonwealth [1977] 1 NSWLR 449. However, provided there is the presence of a fiduciary relationship or an equity arising from the conduct of a party (eg fraud or undue influence) mistaken payments may in some cases be recovered, regardless of whether the mistake may be categorised as one of fact or law: Minister of Health v Simpson. See generally R P Meagher and W M C Gummow Jacobs’ Law of Trusts in Australia 5th ed paras 1731-1732. Despite the general remarks in Daniell v Sinclair (1881) 6 App Cas 181 at 190-1 asserting that in equity the line between mistake in law and mistake in fact has not been clearly and sharply drawn, that case concerned simply an application to re-open a settled account in a redemption suit and no question was raised about challenging the general rule about non-recoverability of money paid under mistake of law (see esp at 186).
13. See Cooper v Phibbs note 9 at 170; Earl Beauchamp v Winn (1873) LR 6 HL 234; Daniell v Sinclair note 12; Murray v Baxter (1914) 18 CLR 622 at 630.
14. [1917] 1 KB 71. See also Denby v Moore (1817) 1 B & Aid 123 (106 ER 46).
15. The Increase of Rent and Mortgage Interest (War Restrictions) Act 1915.
16. For example William Whiteley Ltd v The King (1906) 26 TLR 19; National Pari-Mutuel Association Ltd v The King (1930) 47 TLR 110. Compare Sebel Products Ltd v Commissioners of Customs and Excise [1949] 1 Ch 409 at 413. Some taxing acts now provide a remedy for recovery of overpayments of tax under a mistake of law: see para 3.24.
17. Holt v Markham [1923] 1 KB 504 (overpayment of gratuity to military officer due to failure to apply true construction of regulation held irrecoverable). The Crown may, in an appropriate case, be protected by the principles discussed in paras 3.18-3.19.
18. See authorities discussed in Lord Goff of Chieveley and G Jones Law of Restitution 3rd ed (1986) at 123-124; Fisher v Luke [1926] VLR 190; McColl v Bright (1939) VLR 204.
19. [1919] 1 Ch 351.
20. Id at 357, per Sargant J.
21. The authorities cited in note 12 assert that equity would follow the law in this regard. Air India v The Commonwealth note 12, was a decision of the Chief Judge in Equity and Re Hatch note 19, was a decision of a judge in the Chancery Division.
22. For example Cooper v Phibbs note 9.
23. See Lord Goff of Chieveley and G Jones, note 18 at 122-123 and the cases there cited. See also Re Broughton (1897) 18 NSWLR 247; National Pari-Mutuel Association Ltd v The King (1930) 47 TLR 110; Derrick v Williams [1939] 2 All ER 559; Julian v Mayor of Auckland [1927] NZLR 453.
24. (1885) 1 TLR 329.
25. Dobbs v Grand Junction Waterworks Co (1883) 9 App Cas 49.
26. If the judgment is reversed on appeal any payment made pursuant to it can be recovered under a common law action for restitution (see D M Gordon “Effect of Reversal of Judgment on Acts Done Between Pronouncement and Reversal” (1958) 74 LQR 517) if there is no express statutory authority (e7g-supreme Court Rules Pt 51 rl8).
27. Werrin v The Commonwealth (1938) 59 CLR 150 at 159. See also para 3.28.
28. See for example Lord Coleridge CJ in Henderson v Folkestone Waterworks Co note 24 (quoted para 5.19).
29. J McCamus “Restitutionary Recovery of Moneys Paid to a Public Body Under a Mistake of Law: Ignorantia Juris in the Supreme Court of Canada” (1983) 17 UBCLR 233 at 255. The exceptions are discussed extensively in Lord Goff of Chieveley and G Jones, note 18 at 128-135 and in Law Reform Commission of British Columbia Report on Benefits Conferred Under a Mistake of Law chapter IV.
30. Lazard Bros & Co v Midland Bank Ltd [1933] AC 289.
31. Auckland Harbour Board v R [1924] AC 318 at 326. The principle has been applied in Australia in Commonwealth v Thomson (1962) 1 Vic CCR 37; Commonwealth v Burns [1971] VR 825, Commonwealth v Crothall Hospital Services (Aust) Ltd (1981) 36 ALR 567 at 580. It has been held that the defences of change of position and estoppel are not available in relation to a claim for recovery of public moneys unlawfully paid: Commonwealth v Burns, supra; Attorney-General v Gray [1977] 1 NSWLR 406. See generally, Law Reform Commission of British Columbia Report on the Recovery of Unauthorised Disbursements of Public Funds (1980). Compare Holt v Markham [1923] 1 KB 504.
32. (1981) 36 ALR 567.
33. Id at S81.
34. (1874) LR 9 Ch App 609. The exception is discussed in Re Roberts (1976) 12 ALR 730. It clearly applies even if the mistake is one of law: Re Carnac, Ex parte Simmonds (1885) 16 QBD 308 at 312 per Lord Esher MR.
35. (1874) LR 9 Ch App 609 at 614.
36. Re Wigzell [1921] 2 KB 835; Re Byfield [1982] Ch 267.
37. [1915] 1 Ch 91.
38. See Sinclair v Brougham (1914) AC 398.
39. See generally note 12.
40. See West London Commercial Bank Ltd v Kitson (1884) 13 QBD 360 at 362-3 (wilful misrepresentation of law), Ward & Co v Wallis [1900] 1 QB 67S at 678 (want of bona fides, Shelley v Paddock [1980] 1 QB 348 (fraud); Rogers v Ingham (1876) 3 Ch D 351 at 356 (breach of fiduciary obligation) . See also as to fraud, the dictum of Lord Abinger quoted in para 3.3.
41. See Stamp Duties Act 1920 ss124, 140; Land Tax Management Act 1956 s16; Pay-roll Tax Act 1971 s19. Compare Income Tax Assessment Act 1936 (Cth) s170(3) which only extends to mistakes of fact: Federal Commissioner of Taxation v Hayden (1944) 7 ATD 440.
4 2. See generally Lord Goff of Chieveley and G Jones, note 18 at 36-38.
43. 2 East 469 at 470 (102 ER 448 at 449). See also Brisbane v Dacres (1813) 5 Taunt 143 at 152 (128 ER 641 at 645) per Gibbs J.
44. See generally Caroline A Needham “Mistaken Payments: A New Look at an Old Theme” (1978) 12 UBC Law Rev 159 at 177-8 and D Cuthbertson “The Principle of Voluntary Payment in Quasi-Contract” (1967) 5 UQLJ 288.
45. Dawson Unjust Enrichment (1951) at 128 quoted by Windeyer J in Mason v New South Wales (1959) 102 CLR 108 at 143.
46. This was probably the sense in which Lord Ellenborough used the term in the passage quoted in para 3.25.
47. Kiriri Cotton Co Ltd v Dewani [1960] AC 192 at 204. See generally Mason v New South Wales note 46; Lord Goff of Chieveley and G Jones, note 18 at 124-127; I J Hardingham “Recovery of Taxes by the Taxpayer” (1971) 2 ACL Rev 199; P Birks “Restitution from Public Authorities” (1980) 33 CLP 191.
48. Sargood Brothers v The Commonwealth (1910) 11 CLR 258 at 276-7; Bell Bros Pty Ltd v Shire of Serpentine-Jarrahdale (1969) 121 CLR 137; Air India v The Commonwealth [1977] 1 NSWLR 449.
49. For example Hydro Electric Commission of Nepean v Ontario Hydro (1982) 132 DLk (3d) 193.
50. For example Air India v The Commonwealth [1977] 1 NSWLR.
51. Id at 455. For a discussion as to what is compulsion, see ,F & S Holdings v NRMA Insurance (1982) 41 ALR 539 at 555. Voluntariness must be detfrmi-ned as a question of fact in each case and the state of mind of the payer is relevant: Deacon v Transport Regulation Board [1958] VR 458 at 460; International Packers Pty Ltd v Harvey [1969] Qd R 159 at 177.
52. Lord Kenyon CJ in Marriott v Hampton (1797) 7 TR 269 (101 ER 969) (the leading case). See also Mason v New South Wales (1959) 102 CLR 108 at 144.
53. [18951 1 QB 399 at 401-2. As to the limits of this doctrine, see J & S Holdings v NRMA Insurance (1982) 41 ALR 539 at 556.
54. Kelly v Solari (1841) 9 M & W 54 at 59 (152 ER 24 at 26) per Parke B. See also South Australian Cold Stores Ltd v Electricity Trust of South Australia (1957) 98 CLR 65 at 74-75, Mason v New South Wales note 45 at 143.
55. For example Cook v Wright (1861) 1 B & S 559 (121 ER 822).
56. For example Morgan v Ashcroft [1938] 1 KB 49.
57. Lord Goff of Chieveley and G Jones, note 18 at 90-100.
58. For example Brisbane v Dacres (1813) Taunt 143 at 152 (128 ER 641 at 645) per Gibbs J.
