A party that receives preliminary legal advice suggesting payments may have been made under a mistake of law, but continues paying while investigating, may be found to be making voluntary payments from the date of that preliminary advice, even if the advice was qualified and further investigation was warranted. The majority (Holmes JA and Fryberg J) held that once a party believes a contractual provision 'might be invalid' but chooses to pay nonetheless, the payments are voluntary and not caused by mistake. McMurdo P's dissent on this point — that voluntariness should only be found from the date of the letter of demand — represents a more generous approach to parties investigating potential mistakes. Estoppel by convention cannot be raised for the first time on appeal where the appellant could have called further evidence at trial to meet the case.
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