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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: 10 December 2021