A nerdy confession

The curriculum for this semester has changed a little, so I’m downloading cases to complement my revised lecture notes. Anyway, I have just been downloading cases from the Commonwealth Law Reports. It seems fascinating to me that Calverley v Green (resulting trust case) was in the same volume as Jaensch v Coffey (nervous shock & negligence case) and Nelson v Nelson (resulting trust case) was in the same volume as Vadasz v Pioneer Concrete (rescission on terms). Somehow I had never thought of those cases as occurring at the same time.

Yeah, I know I am quite crazy. After all, I think that different kinds of trusts have different flavours. Resulting trusts, of course, are peppermint flavoured. Common-intention constructive trusts are strawberry flavoured. Maybe I’d better stop there.



Filed under crazy stuff, law, legal education

12 responses to “A nerdy confession

  1. Dang. I hate peppermint. You could have a fridge full of peppermint chocolates and they’d go bad before I ate any. Strawberry, on the other hand…

  2. When I was pregnant, I suddenly developed a hatred of peppermint. In fact, I had to stop brushing my teeth with toothpaste for a few months.

    I quite liked peppermint tea before I was pregnant, but I think it just reminds me of that sick feeling, so I can’t drink it any more.

    But I still like peppermint chocolate. And I LOVE, LOVE, LOVE strawberry chocolate. Mmm.

  3. wen

    it hurts my brain that i actually remember these terms from last year. stuff about paying money towards a house, equity, argh, the memories, they hurt.

    oh well, property law has well and truly passed. πŸ™‚

  4. marcellous

    I haven’t bothered to look at the first instance and intermediate appeals, but can you explain to the class why Vadasz needed to be a case about equity, and not simply a Trade Practices Act case?

  5. Marcellous, good question. I can’t see why it wasn’t simply a TPA case either. TPA remedies are so much more flexible and there’s none of that fusion fallacy nonsense to contend with. Section 87(2)(b) empowers the court to vary the terms of a contract where appropriate.

    There were parallel claims in equity and under the TPA at trial. I understand that the appeal to the SA Supreme Court was on the basis of equity, and questions of the TPA were put to one side. The question of the operation of the TPA was not brought before the High Court at all.

  6. pete m

    marcellous – because too many lawyers are frightened by statute based remedies, and use senior counsel enmired in common law and equity based remedies. Any other guess of mine would just be a blank face!

  7. marcellous

    Pete, I think you are right, up to a point [Lord Copper].

    In the appeal to the SA Supreme Court (In Banco), Olsson J observed that:
    “It is beyond question that the primary thrust of the appellant’s case, as developed at trial, was to seek equitable relief on the ground of th erespondent’s misrepresentation of the nature and effect of the instrument of guarantee, as presented and signed. The Trade Practices Act ground was essentially pleaded as an alternate, fall-back position.”

    On appeal to that court, Vadasz was still pressing the point that if he was entitled to rescission at equity, he was entitled to rescission of the whole guarantee. That was an equitable argument, because he couldn’t have maintained any appeal against the TPA case. So the TPA aspect fell away.

    The same thing applied in the High Court. By then there was no cross-appeal from Pioneer.

    When you read the High Court’s judgment this is difficult to understand because you come away thinking, omg, Vadasz was lucky to get partial rescisssion, and he is making an “all or nothing” argument that he is entitled to total rescission?

    If you read the argument summarized in the CLR or the HCA transcript verbatim (one of the earliest available on the net), you will see that a lot hung on Vadasz’s attempt to say that the judge at first instance had found that there was actual fraud by Pioneer or that his findings necessarily implied that. The High Court was not very keen on that, since the judge at first instance

    “made no precise finding as to the character of the misrepresentation, saying:

    ‘[Vadasz] is entitled to resceission, and therefore to resist the claim, irrespective of whether the misrepresentation was fraudulent, negligent or innocent.'”

    The High Court pointed out that if Vadasz wanted to talk about fraud, then he was talking common-law rescission, but this was not available because he wasn’t offering restitutio in integrum.

    My own gloss is that in trying to get some kind of extra free kick in equity by invoking common law fraud but not offering to do equity by being prepared to guarantee the future debts which he was always prepared to guarantee and was under no misapprehension about, Vadasz was trying to have his cake and eat it.

    Could this be a fushion fallacy LE? I know you hate that idea!

  8. Interesting! I couldn’t access the SA Court of Appeal case online last night to see what happened to the TPA claim.

    I was actually having a discussion with some consumer rights lawyers the other day on how principles of restitution interact with the Fair Trading Act – the FTA tends to be very strict and say that if a vendor fails to include a necessary clause in a contract, the purchaser gets to keep the good. They asked me how restitution law interacts with this – is the purchaser liable for a quantum valebat? I had to confess that I had never thought of that point before. I think Pete is right, equity lawyers are sometimes a bit scared of statute law.

    Perhaps the High Court should have considered the policy of the TPA. I guess it depends whether the HCA thought it was filling a “gap” in the legislation, or whether the TPA covered the field. If the TPA covered the field, I see no reason why “judge-made” law should prevail over the policy of the law made by the democratically elected legislature. If Vadasz was trying to get around the TPA via the back door, the door should be slammed.

  9. marcellous

    Oh, LE, wipe your keyboard down with those sanitizing cloths! The TPA does not cover the field! It supplements the general law in the specific area of trade and commerce, just as, for example, the various state versions of Property (Relationships) legislation sit alongside the general law. The general law also still needs to develop to cover areas such as sale of your own home, which has been held not to be in trade and commerce.

    There was nothing wrong with Vadasz trying to get more under equity than the judge had seen fit to give him under the TPA (even where the judge did not really particularly bother to differentiate between the two). Although the judgment of the High Court in Vadasz makes it all seem retrospectively inevitable, beforehand the case was sufficiently arguable to be given special leave, even if it is possible that they were just needed to fill up their South Australian sitting days at the time the special leave application was heard.

    [Too many exclamation marks?]

  10. πŸ˜‰ Oh dear, usurping the role of the judiciary by saying that perhaps legislation was supposed to deal with the problem? Zounds, what a troublemaker I am.

  11. marcellous

    That’s all very well, LE, but section 52 is in Part V of the TPA. Section 75 is also in part V of the Act.

    Section 75(3) provides that:

    “Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.”

  12. Touche! The question is then if equitable remedies should develop in a way that mirrors the TPA, or develop independently.

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