Restitution (LAWS70148)
Graduate coursework level 7Points: 12.5Not available in 2021
Please refer to the return to campus page for more information on these delivery modes and students who can enrol in each mode based on their location.
About this subject
Overview
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Although of ancient origin, the law of restitution is a new, intensely interesting and vital part of the common law of Australia. The law of restitution intersects with, sits alongside or forms a part of, contract law, insolvency, equity, trusts and torts, and as such an understanding of the subject is important for lawyers or non-lawyers with an interest or who practise in the field of private law. The subject syllabus focuses on decisions of Australian courts, with some reference to English and Canadian cases. Through the cases, an understanding of the law of restitution is developed. Practical and theoretical aspects are also considered: from how to plead a claim for restitution to examining the place of the law of restitution under the current High Court. Both lecturers are ideally suited to provide instruction on the subject: The Hon. Keith Mason as the former President of the NSW Court of Appeal and co-author of the leading Australian text on the subject. Mr Michael Rush, presently practising at the Victorian Bar with a doctorate in restitution from the University of Oxford.
This subject provides an analysis of the law of restitution in Australia. Principal topics will include:
- Overview of the law of restitution, including the principles on which it is based, its nature and ambit, how it should be pleaded, its role as part of the common law of Australia and its impact on unwinding commercial transactions
- Identification of parties: Determining the breadth of what constitutes an enrichment in the hands of a defendant and how a plaintiff can establish a connection to that enrichment sufficient to found a cause of action in restitution
- Reasons for restitution: When is it unjust for a defendant, who receives an enrichment at the expense of the plaintiff, to retain that enrichment? Grounds for restitution, including benefits conferred by mistake, failure of consideration, duress, undue influence and instances where the claimant has no intention to benefit the recipient. Consideration of restitutionary claims for wrongdoing, including breach of contract and breach of fiduciary duty
- Defences: Change of position, estoppel, passing on, illegality, bona fide purchase and ministerial receipt.
Intended learning outcomes
A student who has successfully completed this subject should:
- Understand the nature and elements of a claim in restitution, different and common situations in which such claims arise, and areas of debate
- Understand how the law of restitution sits alongside, forms part of, or cuts across contract law, construction law, insolvency, equity and trusts
- Understand how to plead a cause of action based on a claim for restitution, the availability of alternate restitutionary remedies (whether in common law or equity) and the impact of restitution law on the drafting of commercial agreements
- Understand the nature of restitution and the extent to which it is personal or proprietary claim, and how and why breach of fiduciary duty, breach of contract, a mistaken payment, failure of consideration, duress and undue influence may each give rise to a claim for restitution
- Understand the contemporary debate as to the place of unjust enrichment in the law of restitution, and in particular its development under the Mason High Court and review by the Gleeson High Court.
Last updated: 12 November 2022
Eligibility and requirements
Prerequisites
None
Corequisites
None
Non-allowed subjects
None
Recommended background knowledge
Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.
Inherent requirements (core participation requirements)
The University of Melbourne is committed to providing students with reasonable adjustments to assessment and participation under the Disability Standards for Education (2005), and the Assessment and Results Policy (MPF1326). Students are expected to meet the core participation requirements for their course. These can be viewed under Entry and Participation Requirements for the course outlines in the Handbook.
Further details on how to seek academic adjustments can be found on the Student Equity and Disability Support website: http://services.unimelb.edu.au/student-equity/home
Last updated: 12 November 2022
Assessment
| Description | Timing | Percentage |
|---|---|---|
Take-home examination | 100% |
Last updated: 12 November 2022
Quotas apply to this subject
Dates & times
Not available in 2021
Time commitment details
The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.
Additional delivery details
This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.
Last updated: 12 November 2022
Further information
- Texts
- Related Handbook entries
This subject contributes to the following:
Type Name Course Master of Laws Course Master of Commercial Law Course Master of Private Law Course Graduate Diploma in Legal Studies - Links to additional information
- Available through the Community Access Program
About the Community Access Program (CAP)
This subject is available through the Community Access Program (also called Single Subject Studies) which allows you to enrol in single subjects offered by the University of Melbourne, without the commitment required to complete a whole degree.
Please note Single Subject Studies via Community Access Program is not available to student visa holders or applicants
Entry requirements including prerequisites may apply. Please refer to the CAP applications page for further information.
Additional information for this subject
If required, please contact law-admissions@unimelb.edu.au for subject coordinator approval.
- Available to Study Abroad and/or Study Exchange Students
Last updated: 12 November 2022