The Change of Position Defence

Description

This book defines and explains 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 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 many disputed features. This work takes a different stance, arguing that the defence is best understood by placing it within its broader historical and legal context. It explains that the foundations of the defence can be found in the related doctrines of estoppel by representation, the agent's defence of payment over and the law of rescission. The analysis applies crucial insights from those areas, together with the change of position authorities and broader considerations of policy and principle, to develop a rigorous model of the change of position defence. The work not only provides a clear and exhaustive examination of the defence, but demonstrates that, properly understood, the defence operates in a rational and justifiable manner within its broader private law context. In so doing, its analysis meets the oft-expressed concern than the defence may operate in an unprincipled way or by reference to 'that vague jurisprudence which is sometimes attractively styled "justice as between man and man"'.

Elise Bant is an Associate Professor of Law at the University of Melbourne Law School and Honorary Fellow (and former Senior Lecturer) at The University of Western Australia.

The Change of Position Defence is a book that the subject has long required. The research is exhaustive ... the analysis well-structured, and the writing is a model of clarity and accessibility. Mitchell McInnes Law Quarterly Review April 2010, Volume 126 Dr Bant makes some original and insightful points about the change of position defence and the wider law of unjust enrichement ... her writing is fresh and clear. Original and thought provoking ... many passages ... prompted me to stop and think again about the different aspects of the change of position defence, estoppel, recission, and the more general law of unjust enrichment. A full reading is warmly recommended. Charles Mitchell Restitution Law Review June 2010 The Change of Position Defence is a necessary and important book. This accomplished monograph is the product of serious and commendable scholarship. Elise Bant has provided a definitive account of the change of position defence: all those interested in restitution will find her analysis enriching. James Lee Lloyd's Maritime and Commercial Law Quarterly 2010 Bant provides a detailed discussion of every aspect relating to the defence of change to position. Her method, to put the change of position defence into its historical and legal context, proves to be most fruitful and enables her to develop original solutions. Bant's arguments ... are both rich and powerful. Bant's book is to be welcomed. The richness of her ideas and arguments, her grip of the authorities over such a wide range of legal institution, and her courage to do comparative work beyond the Common Law world are admirable. Her findings are not only of interest for English and Australian law for which they have been formulated but also to Scots and German lawyers. And she adopts a methodology that is worth closer analysis. Phillip Hellwege Edinburgh Law Review Volume 14, 2010