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Restitution And Remedies Notes

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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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