(v) No Need to Show Detriment
It has been a matter of some controversy whether the agent’s defence will only be established if the agent suffered detriment as a result of transferring the benefit to the principal. In Kleinwort Sons and Co v Dunlop Rubber Co[1] Lord Loreburn LC emphasized that the defence would only be applicable if the agent’s position could be considered to have been altered to his or her disadvantage. But, although usually the transfer of a benefit would indeed have been disadvantageous to the agent, this will not always be the case and, where there is no detriment, the defence should still be available.[2] So, for example, where the agent uses the money which has mistakenly been paid to him or her by the claimant to discharge a debt which the principal owed to the agent, this should be considered to involve a transfer of the benefit to the principal even though the agent has not suffered any loss as a result of it.77
