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RESTITUTION AND REMEDIES
* * * * Restitution is concerned with preventing unjust enrichment.
It is a branch of the law of civil obligations separate from contract and
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
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  2 VR 221; or
2. where a contract is terminated before it has been completely
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
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 
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