General Reform

1. (a) Legislation should be enacted which provides that, where relief in respect of any benefit that has been conferred under mistake is sought in any proceedings before a court by any party to the proceedings, and the relief could be granted if the mistake were wholly one of fact, the relief shall not be denied by reason only that the mistake is one of law whether or not it is in any degree also one of fact.

(b) In this context "benefit" means payment of money or allowance of payment in an account, the transfer of any real or personal property or of any interest in any real or personal property and the performance of any service. (5.17; Draft Bill CII 5, 7)

Change in the Law

2. Relief under the general reform should not be available where the benefit was conferred at a time when the law required or allowed the benefit to be conferred or enforced, by reason only that the law is subsequently changed. (5.29; Draft Bill Cl 8)

Change of Position

3. It would be premature to enact a statutory form of change of position defence in relation to benefits transferred by mistake of fact or law, since it appears that such a defence is already generally available in appropriate circumstances in Australia. (5.45)

Repayment by Instalments

4. There is no need for legislation relating to payment of money by mistake to confer express power on the court to allow judgment debts to be repaid by instalments. (5.47)

Restitution from Public Authorities

5. The statutory reforms which we propose should bind the Crown. (5.52; Draft Bill Cl 4)

Retrospectivity

6. The statutory reforms which we propose should apply to a mistake whenever made. (5.53; Draft Bill Cl 6)