CORRESPONDENCE
| Published date | 01 March 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00709.x |
| Date | 01 March 1963 |
CORRESPONDENCE
TIIE
EDITOR,
Sir,
Your
learned contributor Mr. Michael Higgins in his discussion of
Chettiar
v.
Chpttiar
[1962]
2
W.L.R.
548; [1962]
1
All E.R.
494
appearing
in
(1962) 25
M.L.R.
696,
refers to the decision
of
the Court of Appeal
of New Zealand in
Watson
v.
Miles [1953]
N.Z.L.R.
968.
Mr. Higgins
submits that “where the plaintiff’s case is based on his general title to
the goods, it will be necessary to establish the exact extent of the special
interest transferred, and this can only be determined by reference to the
illegal transaction. Even if the nature of this interest is established, there
remains the problem of the manner in which it can be terminated,
a
question
which once more must be referred to the illegal contract
.
.
.
(footnote).
It
is
on
this
ground that
Bowmakers
was strongly criticised by the Court
of
Appeal of New Zealand in
Niles
v.
Watson.”
The criticism was not by the Court of Appeal, but by Gresson
J.
Rowmakers
is not mentioned in the judgment of Hay
J.,
and Fair
J.
at
p.
967
cites the case as possibly applicable.
It
is appropriate to point out that in
Hayes
v.
Butherland [I9691
N.Z.L.R.
1377,
F.
B.
Adams
J.
discussed the judgments in
Watson
v.
Miles
and
paid particular attention to the interpretation of the words “shall have
no effect,” contained in section
25
of the Land Settlement Promotion Act,
1952.
He concluded (at p.
1385)
that “the court had no intention either to
bind the parties or to establish a binding precedent” and that the opinion
of the Court of Appeal was by way of
obiter dictum
only. In an earlier
(unreported) case,
Churches
v.
Tait,
decided at Auckland on May
24, 1964,
the same learned judge dealing with the decision of the Court of Appeal
in
If’atson
v.
Miles,
which discussed the law as to the restoration
of
property
or
moneys delivered
or
paid in the course of an illegal transaction, pointed
out that in his opinion “no decision was intended
or
expressed by any of
the learned judges on the law
as
to the restoration of such property
or
moneys.
There was exposition but no decision, and
I
believe
I
am right in saying that
there is nothing of a binding nature,
or
anything
so
intended, in what was
said on the subject.
I
have particularly in mind the doubts that were
suggested in regard to the principle applied by the English Court of Appeal
in
Bowmakers, Ltd.
v.
Barnet Instruments, Ltd. [1946]
K.B.
65.
. . .
I
am chiefly impressed by the confusion and uncertainty
of
the law on this
subject, and also-and
I
hope
this
may be said without disrespect to any
of my betters--by the injustices which are sometimes involved in its
application.” One is impelled to
reflect that
a
valuable ship could be the subject
of
the same legal principles.
The present almost countless number of statutory and other prohibitions,
and the existence today
of
chattels worth in some cases more than a king‘s
ransom, support your learned contributor’s plea for reform which will,
it is hoped, find an active response both in Great Britain and in New
Zealand.
Perhaps
I
may be permitted in conclusion, to say that any comments
on the
Bowmakers
case in
Watson
v.
Miles
have now to
be
considered,
even in New Zealand, with reference to the approval of the former decision
by the Privy Council in
Bajan Bingh
v.
Bardara
AZi
[1960]
A.C.
167,
and
to add my voice to those that have been heard to say that a plaintiff who
succeeds on the principle laid down in the
Bowmakers
case does not succeed
The Modern Law Review.
Churches
v.
Tait
related to a motor-car.
281
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