NCJ Number
63798
Journal
LAW QUARTERLY REVIEW Volume: 95 Dated: (JANUARY 1979) Pages: 68-77
Date Published
1979
Length
10 pages
Annotation
A LEGAL CASE IN WHICH THE SAME FACTS GIVE RISE TO TWO CAUSES OF ACTION AGAINST A SINGLE DEFENDANT, ONE FOR MONEY RECEIVED AND THE OTHER FOR TORT DAMAGES IS EXPLORED AS IS THE PLAINTIFF'S REMEDY CHOICE.
Abstract
THE PRECEDENT-SETTING DECISION OF UNITED AUSTRALIA LTD. V. BARCLAYS BANK LTD. WAS APPLIED TO THE MALAYSIAN CASE OF MAHESAN V. MALAYSIA GOVERNMENT OFFICERS' COOPERATIVE HOUSING SOCIETY LTD. SEVERAL ARGUMENTS ARE RAISED THAT SUGGEST THAT THE DECISION OF THE MAHESAN CASE WAS MISCONCEIVED. IN MAHESAN'S CASE, THE RESPONDENTS HAD CLAIMS AGAINST MAHESAN IN TORT AND IN RESTITUTION. THE RESITITUTIONARY CLAIM WAS ON A FIDUCIARY TO HAND OVER PROFIT MADE IN THE COURSE OF CONDUCTING THE RESPONDENTS' BUSINESS, NOT A CLAIM INVOLVING WAIVER OF ANY TORT BY THE RESPONDENTS. THUS IT WAS A CLAIM THAT LAY AGAINST AN ENTIRELY INNOCENT DEFENDANT. SINCE UNITED AUSTRALIA CONCERNED WAIVER OF TORT THERE IS NO REASON WHY THE RESPONDENTS SHOULD HAVE BEEN FORCED BY THE PRINCIPAL IN UNITED AUSTRALIA TO ELECT BETWEEN REMEDIES. ALSO, IF THE PLAINTIFFS RECOVERED FROM THEIR AGENT IN QUASI-CONTRACT THE AMOUNT OF THE BRIBE RECEIVED BY HIM, THAT RECOVERY WOULD GO TO REDUCE ANY LOSS SUFFERED AS A RESULT OF THE TORTIOUS ACT. THIS WOULD BE TRUE EVEN IF THE PLAINTIFF HAD A RIGHT IN PRINCIPLE TO SUE IN TORT. LOSS BEING OF THE ESSENCE OF THE TORT ACTION, PLANTIFFS CAN NOT SUE ON THESE GROUNDS IF THEY CHOOSE TO RECOVER IN QUASI-CONTRACT. WHILE THE MAHESAN DECISION ON THE SUBJECT OF THE RELATIVE RIGHTS AND DUTIES IN PRINCIPALS AND DISHONEST AGENTS HAS BEEN UNFORTUNATE, AT LEAST PROGNOSTICATIONS CAN BE MADE FOR REMEDYING SUCH A PROBLEM IN THE FUTURE. FURTHER ARGUMENTS ABOUT THE CASE ARE INCLUDED. NOTES ARE SUPPLIED AND CASE LAW IS CITED. (MHP)