Subrogation, Equity and Unjust Enrichment

Abstract

Subrogation, Equity and Unjust Enrichment MARK LEEMING [I]t may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. 1 Perhaps the most difficult problems facing rule-makers concern choices as to the level of generality at which to frame the rule, with what degree of precision and with what provision for exceptions: at one extreme is the very precisely worded, very general, purportedly absolute rule which makes few or no concessions to the complexity and particularity of actual events; at the other extreme is the instrument that is so vague and so open-ended as to raise doubts as to whether it can be appropriately referred to as a 'rule' at all. Thus the perfect rule-maker needs … an infallible judgment about what constitutes an appropriate level of generality in a given context. 2 There are no categorical rules to direct judges about the selection of appropriate levels of generality. 3

Keywords: subrogation, unjust enrichment, equity, Bofinger, Banque Financiere, Birks, Burrows, taxonomy, rationality

JEL Classification: K10, K30