Abstract
At the heart of this paper is the confusion that underscores the concept of unjust enrichment in New Zealand and its impact upon what were historically considered quasi-contractual causes of action. The emphasis is upon money had and received for the essential question asked, and tested, is whether money had and received does provide a conceptually sound claim to recover stolen money in an age of electronic transactions.
Introductory parts of this paper explore the place of unjust enrichment in New Zealand and consider whether our conception of money had and received is “big” in the sense that it is not only a powerful unifying force but even a unified cause of action
My argument is that it is not, not only do the cases not go so far but also that unification is impeded, and in many ways unnecessary, given the extent that contract legislation occupies and organises many aspects of the “territory” that unjust enrichment might have occupied. While unjust enrichment does perform an important function as an organising concept, it does not unify all the old quasi-contractual causes of action. Only the traditional actions of money had and received and money paid to the defendant’s use conveniently fit within its purview.
Money had and received, itself, would benefit from refinement given the extent of legislative encroachment and the different qualities of, and defences to, the various restitutionary claims. Such actions are better analysed if thought of and pleaded as separate causes of action leaving a distinct claim, money had and received, that – unlike the other claims to which it is related – is concerned with transactions where the transferor has not consented, at all, to the payment of its funds (unlike those cases where consent is present, but vitiated or conditional).
Having identified such a role and place for money had and received, the analysis moves to consideration of the ability of the claim to adapt to modern banking practices bearing in mind that money had and received, and the other common law claims of interference with property or rights to it, developed to meet cases where tangible things changed hands, including notes and coins. Nowadays the value of money is exchanged electronically and, strictly speaking, without any property changing hands at all. This is an impediment to the application of the tort of conversion.
I argue that money had and received can fill that gap by acknowledging, first and foremost, that there are sufficient rights in a bank account, even an overdrawn one, to recognise that when one account is debited, and another relationally credited, there is a transaction of the kind that the common law, in the form of money had and received, can respond to. Even though – as has always been the case – the ability of the cause of action to pursue subsequent recipients is limited, given the fungibility of money and the inherent nature of bank accounts, properly understood it provides a valuable cause of action against the thief of stolen funds.