The Hunting of the Snark is a nonsense poem written by Lewis Carroll subtitled An Agony in 8 Fits. In Fit 6, the Barrister dreams that the eponymous Snark serves as counsel for the defence, finds the verdict as the jury, and passes sentence as the judge. Perhaps it is fitting then to observe that, by way of update to yesterday’s post about Bofinger v Kingsway Group Limited (2009) 239 CLR 269, [2009] HCA 44 (13 October 2009), Legal Eagle on SkepticLawyer characterises the judgment as “yet another snark at unjust enrichment”. True, but reaffirming a light approach to the “unifying legal concept” of unjust enrichment is not necessarily a bad thing, even if the tone is indeed unnecessarily snarky. She does concede that, “to give the High Court credit where credit is due, it gives reasoned arguments for rejecting the Banque Financière decision (see Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221; [1998] UKHL 7 (26 February 1998)). It would sound quite reasonable if it weren’t for the usual snark beforehand” (given my views in my earlier post, it’s no surprise that I agree with her here). Her snark is that the Court does not provide similarly reasoned arguments for what she sees as negative knee-jerk responses to unjust enrichment reasoning.…

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By means of the doctrine of subrogation, one person is substituted for another in the exercise of that other’s rights against a third person. In the classic triangular fact pattern, it arises where a creditor has rights against a debtor, and the plaintiff is subrogated to the rights of the creditor against the debtor. It is a doctrine which admits of many possible explanations. For example, on the view taken by Meagher, Gummow & Lehane, subrogation largely follows a similar pattern in a series of otherwise unconnected islands: they are content to set out the categories, which, for them, are not closed, and to conclude that there are no universally applicable criteria for the intervention of equity in such cases. On another view of subrogation, taken by Hedley, and by Lord Salmon in Orakpo v Manson Investments [1978] AC 95 (HL), there are some relatively loose connections between the specific contexts but only at an abstract level: Hedley argues for a broad general principle that (subject to defences) the plaintiff can exercise whatever rights the creditor would, but for the plaintiff’s payment, have had against the debtor; whilst Lord Salmon argued for an “entirely empirical … principle … that the doctrine will be applied only when the courts are satisfied that reason and justice demand that it should be”.…

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