Mason & Carter's Restitution law in Australia

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Full Title Copyright Preface Preface to the Second Edition Table of Cases Table of Statutes Abbreviations Table of Contents PART I — INTRODUCTION Chapter One: Restitution, Quasi-contract and Unjust Enrichment 1. Overview 2. Quasi-contract (a) General (b) Common Counts (c) ‘Equitable Principles’ in Money Had and Received (d) The Implied Contract Theory 3. Towards Unjust Enrichment as a Unifying Concept 4. Elements of Unjust Enrichment (a) General (b) Benefit (i) General (ii) Incontrovertible benefits (iii) Requested benefits (iv) Non-requested but freely accepted benefits (c) At the Expense of the Plaintiff (d) Injustice (i) General (ii) Mistake, compulsion and other ‘vitiating’ factors (iii) Total failure of consideration and related factors (iv) Acceptance and unconscientious conduct Chapter Two: Classifying Claims and Remedies in Restitution 1. General 2. Nature of Restitutionary Liability (a) General (b) Causes of Action in Restitution 3. Restitution, Contract and Tort 4. Classifying Restitutionary Claims (a) General (b) Three Main Conceptual Triggers for Restitution (c) Independent and Dependent Claims (d) Common Law and Equitable Claims (e) Claims Under Statute (i) General (ii) Recognition and conferral of right to restitution (iii) Discretionary powers (iv) Restrictions on contract validity (v) Restrictions on restitutionary relief 5. Classifying Remedies in Restitution (a) General (b) Personal Remedies in Restitution (c) Proprietary Remedies in Restitution PART II — CLAIMS BASED ON WANT OF TITLE Chapter Three: Want of Title: Misdirected Funds and Tracing 1. General 2. Restitution Against Unauthorised Recipients (a) Unauthorised Disbursal of Money: Common Law (b) Unauthorised Disbursal of Money: Equity 3. Defences PART III — MISTAKE Chapter Four: Mistake 1. General 2. Categories of Mistaken Payments (a) Mistakes of Fact (b) Mistakes of Law (c) Mistaken Gifts 3. Matters Irrelevant to the Plaintiff’s Prima Facie Right to Recover 4. Towards a Comprehensive Test of Mistake 5. Mistake in Cheque Transactions 6. Agents and Intermediaries 7. Defences to Claims to Recover Mistaken Payments 8. Proprietary Remedies 9. Non-monetary Benefits PART IV — CLAIMS BASED ON LEGAL OR MORAL COMPULSION Chapter Five: Improper Pressure 1. General (a) Introduction (b) Relevance of Contract 2. Elements of Claim to Restitution for Improper Pressure (a) General (b) Establishing Improper Pressure (c) Benefit Recoverable (d) Causation (e) Defences (f) Remedies 3. Categories of Improper Pressure Chapter Six: Bearing Others’ Burdens: Contribution, Recoupment and Subrogation 1. General 2. Contribution (a) General (b) Categories (c) Alleged Requirement of Common Demand 3. Recoupment (a) General (b) Who May Seek Non-statutory Recoupment? (c) Claims 4. Subrogation 5. Detailed Rules of Liability Chapter Seven: Judgments Reversed or Set Aside Chapter Eight: Necessitous Intervention: Restitution for Unsolicited Services or Payments 1. General (a) Introduction (b) Policy Considerations (c) Restitution and Unjust Enrichment 2. Summary of Principles 3. From ‘Agency of Necessity’ to ‘Necessitous Intervention’ 4. Intervention to Protect Life or Health of Another (a) Medical Services (b) Supply of Necessaries Without Request 5. Preservation of Property 6. Fulfilment of Another’s Duty (a) Preservation of Credit and Payment of Another’s Debt (b) Situations Where There Is a Positive Public Interest PART V — CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS Chapter Nine: Introduction to Ineffective Contracts 1. General 2. Key Concepts and Types of Claim (a) General (b) Quantum Meruit (c) Total Failure of Consideration (i) General (ii) The agreed return (iii) Failure of consideration (iv) Scope and application (d) Benefit and Acceptance 3. Relevance of Reliance Chapter Ten: Inherently Ineffective Contracts 1. General (a) Introduction (b) The Contractual Background (i) Void contracts (ii) Unenforceable contracts (iii) Illegal contracts 2. Recovery of Money Paid (a) Total Failure of Consideration (i) General (ii) Void and unenforceable contracts (b) Countervailing Factors 3. Restitution for Non-monetary Benefits (a) Quantum Meruit (i) General (ii) Void contracts (iii) Unenforceable contracts (iv) Contracts which fail to materialise (b) Accepted Goods 4. Other Claims Chapter Eleven: Contracts Discharged for Breach or Repudiation 1. Introduction 2. The Contractual Background (a) General (b) Rights of Discharge (c) Consequences of Discharge 3. Recovery of Money Paid (a) General (b) Recovery Based on Failure of Consideration (i) General (ii) Total failure (iii) Relevance of fault and intention (iv) Payments due but not paid (c) Recovery Based on Relief Against Forfeiture (i) General (ii) Jurisdiction (iii) Exercise of jurisdiction (d) Recovery Based on Statute 4. Restitution for Non-monetary Benefits (a) The Contractual Background (b) Quantum Meruit (i) General (ii) Acceptance of benefit (iii) Claims by party in breach (iv) Claims against party in breach (c) Analogous and Other Claims (d) Statute and Reform Chapter Twelve: Contracts Discharged Without Breach 1. General (a) Introduction (b) Contractual Background (i) General (ii) Consensual discharge (iii) Discharge by operation of law (iv) Consequences of discharge without breach 2. Recovery of Money Paid (a) General (b) Total Failure of Consideration (i) General (ii) Cases of total failure (iii) Scope of the concept 3. Restitution for Non-monetary Benefits (a) General (b) Quantum Meruit for Benefits Conferred Prior to Frustration (c) Quantum Meruit in Other Situations 4. Frustrated Contracts Legislation (a) General (b) Objects and Bases for Recovery (c) Scope and Application (d) Impact on Contract and Contract Claims (e) Recovery Under New South Wales Legislation (f) Recovery Under South Australian Legislation (g) Recovery Under Victorian Legislation Chapter Thirteen: Contracts Rescinded or Set Aside 1. General (a) Introduction (b) The Contractual Background (i) General (ii) Consensual rescission (iii) Contracts liable to be rescinded or set aside (iv) Consequences of rescission 2. Recovery of Payments Made (a) General (b) Total Failure of Consideration on Rescission 3. Discretionary Claims (a) General (b) Under the General Law (c) Under Statute 4. Sale of Goods Contracts Chapter Fourteen: Valuation and Adjustment 1. General 2. Restitution and Damages (a) General (b) Advantages (c) Damages Where Plaintiff Entitled To Restitution (d) Damages Where Defendant Entitled To Restitution 3. Valuation of Non-monetary Benefits (a) General (b) Relevance of Contract Price (i) General (ii) Contexts other than discharge for breach (iii) Contracts discharged for breach or repudiation 4. Restitutio in Integrum (a) General (b) Inherently Ineffective Contracts and Statute (c) Contracts Which Subsequently Become Ineffective PART VI — CLAIMS BASED ON WRONG COMMITTED Chapter Fifteen: Introduction to Wrongs 1. General 2. Monetary Remedies for Wrongs 3. When Reliance on a Wrong is Required 4. When Reliance on a Wrong is Permitted (a) General (b) Extent of Recognition (c) Policy, Discretion and Uncertainty 5. Significance of Gain-based Remedies Chapter Sixteen: Tort 1. General (a) Introduction (b) Commonly Encountered Torts (c) Remedies 2. From Waiver of Tort to Restitution for Wrongs 3. Gain-Based Remedies for Wrongful Taking or Use of Land or Goods 4. Claims Involving Money 5. What are the Limits of Restitution for Tortious Wrongs? Chapter Seventeen: Breach of Fiduciary Duty, Breach of Confidence and Infringement of Intellectual Property Rights 1. General 2. Account of Profits 3. Damages and Compensation in Equity, Intellectual Property and Corporations Act Claims 4. Proprietary Remedies 5. Restitution in Favour of Party in Breach of Duty 6. Alternative Claims, Election and Prevention of Double Recovery Chapter Eighteen: Breach of Contract 1. General (a) Introduction (b) Criteria and Objectives of Contract Damages (c) Contract Damages and the Enforcement of Contracts 2. Benefit Equal to Loss (a) General (b) Money Retained and Expense Saved (c) Profit Lost and Benefit Not Received 3. Terms of the Contract (a) General (b) Benefit Obtained in Breach of Contract Term 4. Benefit Without Loss (a) General (b) Character of the Breach (c) Basis for the Award (d) Nature of the Wrong Chapter Nineteen: Wrongful Killing: The Forfeiture Rule 1. General 2. The Forfeiture Rule 3. Evidentiary and Procedural Issues (a) General (b) Causation 4. Benefits Liable to Be Forfeited 5. Criticism and Reform PART VII — SPECIAL CLAIMS INVOLVING THE EXECUTIVE Chapter Twenty: Restitution against the Revenue 1. Introduction 2. Claims to Recover Imposts Based on Mistake, Improper Pressure, Contract or Statute (a) General (b) Mistake (c) Improper Pressure (d) Contract (e) Statutory entitlement to restitution 3. The Woolwich Principle outside Australia 4. Likelihood of Australia Adopting the Woolwich Principle (a) Status of the Principle in Australia (b) Australian Constitutional Background (c) The Woolwich Principle in Australia? 5. Reimposition of Tax, Legislated Bars on Relief and Defences Chapter Twenty One: Restitution of Ultra Vires Disbursements from the Revenue 1. General 2. The Principle PART VIII — DEFENCES Chapter Twenty Two: Introduction to Defences 1. General 2. Classifying Defences Chapter Twenty Three: Election 1. General 2. Election Between Inconsistent Remedies (a) General (b) Alternative Claims in Contract and Restitution (c) Alternative Claims in Tort and Restitution 3. Election Between Inconsistent Rights (a) General (b) Election as a Defence (c) Related Defences 4. Restitutio in Integrum (a) General (b) Scope and Operation of the Defence Chapter Twenty Four: Change of Position 1. General 2. Recognition of the defence 3. Ambit of the Change of Position Defence 4. Operation of the Change of Position Defence Chapter Twenty Five: Consideration and Bona Fide Purchase 1. General 2. Consideration 3. Compromises and Related Situations (a) General (b) Compromises (c) Release and Abandonment (d) Discharge of an Existing Debt and Other Cases 4. Bora Fide Purchase (a) General (b) Relevant Situations Chapter Twenty Six: Illegality 1. General (a) Introduction (b) Unjust Enrichment 2. Scope of the Defence (a) General (b) Action Founded on Illegality (c) Action Independent of Illegality (i) General (ii) Illegality having no impact (iii) Assertion of property rights (d) Condition of the Plaintiff Better than that of the Defendant (i) General (ii) Absence of common purpose (iii) Repentance of illegal purpose (iv) Mistake and improper pressure Chapter Twenty Seven: Delay 1. General 2. Delay in the Exercise of a Right 3. Delay in the Pursuit of a Remedy (a) General (b) Statutes of Limitation (i) General (ii) Limitation periods (iii) Independent claims (iv) Dependent claims (v) Claims in equity (vi) Extension and postponement of limitation period PART IX — INTEREST AND PLEADING RESTITUTIONARY CLAIMS AND DEFENCES Chapter Twenty Eight: Interest 1. General 2. Statutory, Common Law and Equitable Interest (a) Statutory Interest (b) Interest at Common Law (c) Equitable Interest 3. Interest on Restitutionary Claims Chapter Twenty Nine: Pleading Restitutionary Claims and Defences 1. General 2. Claims for Money Paid 3. Claims for Remuneration 4. Restitution for Wrongs 5. Pre-Judicature Relics Bibliography Index