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Restitution And Remedies Notes

Law Notes > Contract Notes

This is an extract of our Restitution And Remedies document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Contract Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

RESTITUTION

AND

REMEDIES

*

*

*

*

Restitution

is

concerned

with

preventing

unjust

enrichment.


It

is

a

branch

of

the

law

of

civil

obligations

separate

from

contract

and


tort.


It

is

subordinate

to

contract

-

if

there

is

an

effective

contract,

then

the


contract

will

govern

the

parties'

relationship.


Recognition

of

restitution

as

a

separate

branch

of

the

law

of

civil


obligations

is

relatively

recent.

Aspects

of

restitution

remain

unclear

and


somewhat

controversial.


The

nature

of

Restitution

* Law

imposes

restitutionary

obligations,

when

one

party

has

been

unjustly


enriched

by

the

other

party.

* Unjust

enrichment

is

the

unifying

element

of

restitution.

* Unjust

enrichment

can

occur

in

contractual

situations,

for

example:

1. where

a

contract

is

proposed

but

is

not

concluded,

* Brenner

v

First

Artists

Management

PL

[1993]

2

VR

221;

or

2. where

a

contract

is

terminated

before

it

has

been

completely


performed,

or

3. where

a

contract

is

not

enforceable,

* Pavey

&

Matthews

v

Paul

(1987)

162

CLR

221;

or

4. where

a

contract

is

held

to

be

void

or

voidable.


Establishing

an

Entitlement

to

Restitution:

* The

law

in

this

area

is

unclear

and

unsettled.

* Relevant

considerations

are

(approach

with

caution):

1. Benefit:

the

defendant

must

have

been

enriched;

2. Detriment:

that

benefit,

or

enrichment,

must

have

been

obtained


at

the

plaintiff's

expense;

and

3. Unjust

factor:

the

enrichment

must

be

unjust.

This

is

shown

by


one

of

the

recognised

unjust

factors

which

give

rise

to

a

right

to


restitution.

4. Whether

the

defendant

has

a

recognised

defence

which

permits


them

to

retain

the

benefit.

* Gummow

J

in

Roxborough

v

Rothmans

of

Pall

Mall

Australia

Ltd

placed


cautionary

note

against

the

use

of

an

'all

embracing

theory

of


restitutionary

rights

and

remedies

founded

upon

a

notion

of

unjust


enrichment'.

* Majority

in

Lumbers

warned

about

'top--down

reasoning':

'The

application


of

a

framework

for

analysis

expressed

only

at

the

level

of

abstraction


adopted

in

this

case,

by

reference

to

'benefit',

'expense'

and

'acceptance',


coupled

with

considerations

of

unconscionability,

creates

a

serious

risk

of


producing

a

result

that

is

discordant

with

accepted

principle'

at

[78]

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