Abstract

The acceptance and potential growth in Australia of the law of restitution, based upon the concept of unjust enrichment, raises some questions about its place within our legal framework. In particular there has been some concern about its effect on and its relationship with equity. It is suggested that there are areas of overlap between the two. That is, where restitution in equity would fit within the unjust enrichment framework. In this article, three examples of such potential overlap are analysed to compare the respective principles at work in equity and unjust enrichment in a more detailed manner than has been previously attempted. It has been suggested that the integration of the relevant equitable principles is still one of the greatest challenges facing the law of restitution. This paper is an endeavour to better understand the real nature of any relationship and the conflicts that apparently exist between these two areas of law.

Highlights

  • Restitution is that area of law which describes all claims based upon the concept of unjust enrichment.[1]

  • In practice unjust enrichment has not been accepted yet as providing a generalised right to restitution in Australia, it has been given expression through particular categories of unjust factors.[2]

  • The High Court has confirmed that unjust enrichment, as determined by these accepted unjust factors, can be the basis of restitution

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Summary

Mark Byrne*

The acceptance and potential growth in Australia of the law of restitution, based upon the concept of unjust enrichment, raises some questions about its place within our legal framework. It is suggested that there are areas ofoverlap between the two. That is, where restitution in equity would fit within the unjust enrichment framework. Three examples of such potential overlap are analysed to compare the respective principles at work in equity and unjust enrichment in a more detailed manner than has been previously attempted. It has been suggested that the integration of the relevant equitable principles is still one of the greatest challenges facing the law of restitution. This paper is an endeavour to better understand the real nature of any relationship and the conflicts that apparently exist between these two areas of law

Introduction
Relief Against Forfeiture
Proprietary Estoppel and Acquiescence
Property Disputes of Spouses
Conclusions
Full Text
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