Mistaken Payments and the Change of Position Defence: Rare Cases and Elegance

Abstract

This article critically analyses two New Zealand Court of Appeal decisions involving a change of position defence created by s 94B of the Judicature Act 1908 and the common law change of position defence. Aspects of the reasoning in these cases are controversial (both within New Zealand and internationally). The article critically examines these cases and, after developing a comparison with the change of position defence as developed by the American Law Institute, suggests how these cases give a new insight into the operation of this defence.