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(iii) Failure to Return Property

In McDonald v Coys of Kensington125 the Court of Appeal recognized another way of establishing incontrovertible benefit. Coys had sold a car to McDonald on behalf of the executors of Mr TA Cressman. This car carried the personalized registration mark ‘TAC 1’. It was an express term of the contract of sale that the purchaser was not buying the right to the personalized mark, known as a Cherished Mark, but Coys mistakenly failed to retain the right to it. Consequently, when the car was delivered to McDonald, he was entitled to have the car registered in his name with that Mark, which he did. McDonald refused to transfer the Mark to the executors when requested to do so. Having settled with the estate, Coys sought restitution of the Mark or its value from McDonald. The objective enrichment in this case was the right to the Cherished Mark itself, which had a market value of ?15,000. But the defendant sought to rely on subjective devaluation by stating that it was of no intrinsic value to him, as his initials were different and he had no intention of selling it. The Court created a new category of incontrovertible benefit to defeat this reliance on the subjective devaluation principle, namely where property has been received which is readily returnable without substantial difficulty or detriment. Since McDonald could easily have transferred the right to register the Mark when requested to do so, but had not done so, he must have considered the retention of the Mark to be valuable and so was enriched. This is a legitimate extension of the notion of an incontrovertible benefit. Where property has been received and the defendant could easily return it but decides not to do so, it is appropriate to conclude that the defendant’s decision indicates that he or she did value the benefit.

The application of this principle of a readily returnable benefit is likely to be of limited use within unjust enrichment claims, since it only applies in respect of property. It will not apply to money, which is always beneficial, or to the use value of money where the defendant can show that he or she did not rely on the money received,126 and it will not apply to services which, by their nature, cannot be returned.

 
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