In this book Professor Denis Ong, author of the acclaimed works Trusts Law, Ong on Equity and Ong on Specific Performance, addresses the complexities of the equitable doctrine of Subrogation. This lucid text ranges over all areas where the doctrine is most commonly applied – insurance, trusts and the administration of estates, and sureties.
Generally, the key principles of law are identified and the key cases, across Australian and international jurisdictions, discussed in detail.
Ong on Subrogation has been cited in the Victorian Court of Appeal in Commonwealth v Byrnes and Hewitt [2018] VSCA 41 (a decision of a five-member bench of the Court):
104. More recently, Ong, (1) frankly designates the High Court’s decision ‘inaccurate’. He concludes that due to its ‘disappointing’ and fundamentally mistaken omission to acknowledge and apply the established distinction between exoneration and recoupment, the plurality made inaccurately wide statements, which unduly restricted the respective entitlements of both trust and non-trust creditors. Ong acknowledges, that, at one point at least, the plurality seem to suggest that the trustee’s charge securing the right of indemnity enures for the benefit of all its creditors. Ong considers that to be contrary to the fundamental, purpose-restricted nature of that right. Ong states that on the basis of the established principles articulated in In re Richardson, the High Court should have clearly endorsed the trust creditors’ unique access to the right of indemnity in its exoneration aspect.
(1) Denis Ong, Ong on Subrogation (Federation Press, 2014) 33–8.
Preface
Table of Cases
Table of Statutes
1. What is Subrogation?
2. Subrogation to Trustee’s Right of Indemnity
3. Insurer’s Right of Subrogation
4. Payer’s Right of Subrogation
5. Ultra Vires Borrowings – Lender’s Right of Subrogation
6. Third Party Payer with No Right of Subrogation
Index
This slim volume provides an outline study of the doctrine of subrogation.
It commences with an examination of the doctrine of the equitable principles governing the doctrine of subrogation and distinguishes it from the assignment of a chose in action. It then explores the circumstances in which subrogation may operate: the right of subrogation to the trustee’s right of indemnity; an insurer’s right of subrogation; where the right of subrogation vests in a party (other than a surety) who discharges a third party’s debt to a secured creditor; a surety who discharges the principal debtor’s debt to a secured creditor; and the rights to subrogation of a putative lender who purports to lend money to an ultra vires borrower who then uses the proceeds of the putative loan to discharge its ultra vires debts. It concludes with a consideration of those situations where a third party payer does not have any right to be subrogated to the right of the payee against a debtor.
The work contains a useful summary of the essential legal principles by reference to the primary source material and, in doing so, provides a springboard for further detailed research if required.
Anthony Lo Surdo, Australian Banking and Finance Law Bulletin, May-June 2015
Dr Ong’s study of the law of subrogation is a useful handbook addressing in turn each of the contexts in which one party may become subrogated to a second party rights against a third party, ie entitled to exercise those rights without assignment. The beneficiaries of the doctrine of subrogation include insureds, trust creditors and sureties, each of whom are considered among others in this study. In addressing this topic in a systematic way, this study delivers a clarity often sought by practitioners to what Dr Ong describes in the preface as an otherwise ‘tumultuous’ doctrine.
Queensland Law Reporter – 19 December 2014 – [2014] 49 QLR
