Dedication
Full Title
Copyright
Preface
Acknowledgements
Table of Cases
Table of Statutes
Table of Contents
1 Unjust enrichment: history, concepts and alternative liability models
Introduction
History
The common law forms of action
The implied contract fallacy
Equity's historical contribution
The concept of unjust enrichment
Elements of an unjust enrichment claim
The role(s) of the unjust enrichment concept
Alternative models of restitutionary liability
Unconscionability (unconscionable retention of benefit)
Unjustified enrichment and 'absence of basis'
2 Locating unjust enrichment in private law
Introduction
Foundational aims
Corrective justice
Distributive justice
Summary and reflections
Taxonomy โ mapping private law
Approaches to taxonomy
The scope of unjust enrichment law as a category โ the broad view
Criticisms of the broad view โ the challenge of diversity
Unjust enrichment law as a category โ modern views
Unjust enrichment as a 'Subsidiary' Doctrine
Unjust enrichment and contract
Unjust enrichment and property
Subsidiarity arguments
3 The elements of an unjust enrichment claim
Introduction
Benefit
A broad conception
Positive and negative
Legal and factual
Examples of types of benefit
Objectivity, subjectivity and freedom of choice
Legal 'tests' of benefit
Valuing the benefit
Unjust
A recognised reason for restitution
Defendant has no right to the benefit
At the plaintiff's expense
The minimum requirement: causation and the 'but for' test
Recovery from indirect recipients: 'leap frogging'
Claims in respect of assets never owned: interceptive subtraction
4 Defects in legal capacity
Introduction
The effect of incapacity on the passing of title
The incapacity of minors
Minors' contracts at common law
Recovery at common law of benefits conferred by a minor
Statutory rights of restitution
The mentally disordered
Ultra vires transactions
Private bodies
Public bodies
5 Mistake
Introduction
The meaning of mistake
The reason(s) for recovery
Mistakes of fact
The requirement of causative mistake
What test of causation?
Mistaken gifts
Mistakes of law
Abolition of the mistake of law 'bar'
Difficult issues: uncertain law, invalid law and changes in the law
Limitations on recovery
'Voluntary submission to an honest claim'
'Good consideration' โ payments to meet a valid obligation
Contradiction of statutory regime
Mistakes and contract
Non-Monetary benefits
6 'Ignorance' or 'Absence of Consent'
Introduction
The Argument from Mistake
Rival property analyses
The Common Law Position
The Position in Equity
The 'rule in Re Diplock'
Personal liability for knowing receipt
Personal liability for benefits knowingly 'retained'
Liability in equity for the receipt of company assets withoutauthority
7 Failure of Basis
Introduction
The concept of a 'Basis' ('Consideration')
Proving 'Failure' of the Basis
Identifying the basis of a benefit's provision
Proving that the basis has failed
The requirement of 'Total' Failure
Example 1 โ Contracts Discharged by Frustration
Example 2 โ Contracts Terminated for Breach
Claims by the innocent party
Claims by the party in breach
Example 3 โ Unenforceable and Void Contracts
Example 4 โ Incomplete or Anticipated Contracts
Example 5 โ Performances under Valid Contracts
Escaping Bad Bargains
8 Coercion
Introduction
The Concept of Coercion
A preliminary definition
Coercion distinguished from compulsion
Threats distinguished from warnings
Duress at Common Law
The rationale of recovery
The first requirement: 'illegitimate' threat
The second requirement: causation
A possible third requirement: absence of reasonable alternatives
Equitable Duress (Actual Undue Influence)
Legal Coercion and Compulsion
Reimbursement
Contribution
9 Defects in personal capacity
Introduction
Constraints on relief
Undue Influence
Classes of undue influence
Actual (relational) undue influence
Presumed undue influence
Relationships proven to be of influence
A transaction requiring explanation
Undue influence and third parties
Rebutting the presumption
Unconscionable Bargains
A Special Disadvantage
Knowledge of the special disadvantage
The Basis of Equitable Intervention: Impaired Judgmental Capacity or Wrongdoing?
10 Wrongdoing
Introduction
Terminology and Taxonomy
Foundational aims
Corrective justice?
The protection of important social institutions?
Deterrence and punishment?
The Current Pattern of Recovery
Torts and intellectual property infringements
Equitable wrongs
Breach of contract
Quantification
11 Restitution from public authorities
Introduction
The Woolwich Principle
12 The change of position defence
Introduction
Different Models for the Defence
Model 1 โ An enrichment-related defence
Model 2 โ A detriment-related defence
Model 3 โ A hardship-related defence
Elements of the Australian Defence
The basic model iterated
Detriment
Causation ('on the faith of the receipt')
Good faith, fault and wrongdoing
Proprietary claims
England and Wales
New Zealand
The statutory defence
The defence at common law
13 Other defences
Introduction
Estoppel
The basis of estoppel
The elements of estoppel
The extent of the defence
Estoppel and change of postion
Bona fide purchase
Land registration as a defence to restitutionary claims
The Defence of Incapacity
Counter-restitution
Ministerial Receipt
The doctrinal basis of ministerial receipt
Making out the defence of ministerial receipt
The defence of Passing On
Delay and limitation
The limitation statutes
Delay in equity โ laches, acquiescence and delay
Illegality
14 The nature and basis of tracing
Introduction
The Nature of Tracing
Common Law and Equitable Tracing
A unitary law of tracing?
The Reasons for Tracing
The Prerequisites for Tracing
The Effect of Tracing
The Rules of Tracing
Tracing at common law
Tracing in equity
Tracing into discharged debts
Tracing and Unjust Enrichment
15 Proprietary restitution
Introduction
Types of proprietary remedy
Operational differences
Advantages and motivations
Proprietary remedies and insolvency law
Rival Models of Proprietary Relief
Model 1 โ No proprietary remedies
Model 2 โ 'Proprietary base'
Model 3 โ 'Initial' injustice
Model 4 โ 'Plaintiff does not take the risk of the defendant's insolvency'
Model 5 โ Remedial flexibility and discretion
Discretionary Remedialism
Proprietary remedies
Constructive trusts and 'proportionate share' remedies
Resulting trusts
Rescission
Subrogation
Equitable liens
Index