Restitution Law in Commercial Practice

This subject has the following teaching availabilities in 2010:

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.

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.

Take-home examination (100%) (7-10 May)

This subject is not available as a breadth subject.