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This subject examines the remedies commonly awarded in commercial litigation. All the major common law, equitable and statutory remedies will be covered, along with personal remedies, such as damages and proprietary remedies, such as the constructive trust. The strategic selection of remedies in commercial disputes will be considered and Australian law will be compared, where relevant, with the law of other major commercial law jurisdictions.
Principal topics include:
- Damages in tort (excluding personal injuries) and for breach of contract, including issues of concurrency, where both tort and contract damages are available. Expectation and reliance damages and the protection of the ‘performance interest’ in contract. The role of liquidated damages clauses, and the penalties doctrine, will be considered, as well as the principles governing the award of exemplary and nominal damages.
- Statutory damages awards, with particular reference to damages awarded under the Competition and Consumer Act 2010 (Cth)
- Equitable compensation for breach of equitable obligations, including breach of fiduciary obligation. Statutory damages under the Chancery Amendment Act 1858 (Imp) and equivalent Australian legislation
- Specific performance of contracts, with particular reference to the role of specific performance in common law and civil law jurisdictions
- Injunctions, including a study of the interests protected in injunction litigation. Interlocutory orders, including Mareva orders, will be examined
- The account of profits as a remedy for equitable wrongdoing, and debates about the availability of the account of profits as a remedy for breach of contract
- Proprietary remedies, with particular reference to the distinction between institutional and remedial constructive trusts
- A comparison of the role of the constructive trust, in commercial litigation, in Australia, the United Kingdom and the United States.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have the cognitive and technical skills to generate critical and creative ideas relating remedies in a commercial law context, and to critically evaluate existing legal theories, principles and concepts with creativity and autonomy.
- Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to remedies in a commercial law context.
- Have the communication skills to clearly articulate and convey complex information regarding remedies in a commercial law context to relevant specialist and non-specialist audiences.
Last updated: 31 January 2024