book depository

Burrows - good to keep?

What does restitution mean? Plaintiff v Defendant - remedy
Restitution speak to restoring the gain in the hands of the df.
Transferring a gain from the Df to the Pl. Restitution takes some benefit or
value which is returned, given, transferred to the plaintiff. That action is
making restitution.
Whereas where court order is towards loss of the plaintiff, that is
compensation. Pl suffers a loss and hence D compensates P. Different and
distinct from restitution.
Events - From what events do rights arise? It is possible to construct a
model so that legal responses are triggered on the happening of one of 4
generic events.
Consent

Wrongs

Unjust Enrichment

Things happens in
private law
because
parties agree.
Property passes
with
intention. (e.g.
wills)

A breach of any legal or Liability here is

encapsulated in
equitable duty. They are the phrase that there
not unjust enrichment.
is an unjust
liability and u.e. is
enrichment of the
strict.
defendant at the
meaning that its
expense of the
without reference to
plaintiff.
wrongdoing/fault (df)
the enquiry is about
e.g breach of fiduciary
the PF.
duty or duty of care.
it's about the PF's
liability here is the
intention.
function of the wrong
doing of the defendant.
negligence is about df;s
breach of duty of care.

Other
events

Responses - what legal repsonses are triggered bt the happening of

these events? What's the difference between restitution and compensation?
- Measure, Personal or proprietary, Examples.
Restitution is a response, it can either be in personam or proprietary.
In proprietary can take form of constructive trust. Or can be via a personal
remedy, e.g. quantum meruit, money had and received.
Taxonomy - Autonomous unjust enrichment and restitution for wrongs.
Possibility of restitution for other event. Law and equity.
Restitution as a response is sometimes available for wrongs
(Remedies) , but some torts yield a gain based response.
Consent Wrongs U.E
Compensation

yes

no

Other
?

Restitution

yes

yes

Etc, punishment
coercion

Australian Financial Services and Leasing v Hills Industries There is a relation between restitution and unjust enrichment.
There is no such thing as a claim in unjust enrichment ** there are
claims in restitution such as quatum meruit and money had and received
(these are forms of action) - forms of action have been abolished but still
are alive, in the form of remedy.
Unjust enrichment (in english law u can make a claim but not here), in
an australian court you have to go and talk about forms of action. U must
plead a claim in restitution via quantum meruit, money had and received
e.g. which are really just subsets at the slightly lower of the larger
organizing principle of unjust enrichment.
You dont say that you make a claim in tort, you make a claim in
negligence.
UE is too general a claim, so you cant make that in court.
Quantum meruit - could work as a remedy, you go to court looking for
this/
CLASS 6 - Class 1 to 4 inclusive (Monday , 1.5 hours) - compulsory
open book mid session exam worth 30%, final exam 2 hour, problem
question and essay.
Unjust enrichment - its a strict liability event. So why is it ''unjust'' and
yet be about strict liability. The unjust means that there is an unjust factor. not all benefits gained by df at pf's expense must be given back.
It's not about the defendant's wrongdoing. UE is more to do with the
plaintiff's intention to transfer wealth.
Two families of unjust factor
o
Non-voluntary transfer - there's something wrong with my
intention. I didn't really in my heart mean to give it to the defendant.
It's a pf side of liability model. Whereas wrongs are all fx of df's
conduct whereas here it's a fx of plaintiff to transfer of, nthg to do with
what df did. 99.999% restitution occurs in this category.
o
Policy motivations - irrespective of plaintiff's intentions, there's
just a good reason to grant restitution. Nothing to do with intention.
Just a reason, a legal policy. E.g. necessity, restitution for a rescuer, or
from revenue. Policy motivation for restitution are very rare.
Non voluntary transfer
o
No intention - like someone picking up a $2 that you dropped,
the dude who lost is had no intention
o
Impaired intention - mistake : I owe someone $100, and you
made mistake to identity of recipient and give money to the wrong
person. You had intention but it was impaired. There's was no
inducement.
o
Qualified intention - if/then. If you pay me $50 then I will wash
your car - that's a qualification to my intention. But if you didnt wash

the car and received the money then the basis on which it was
transferred has failed its "money had and received". OR if you wash
the car and they dont give u money then its "quantum meruit".
FIRST QUESTION : Is the DF enriched?
Transfer of value or benefit to the defendant. (could be money,
services, any thing, chosen action, it has to be something that can be
valued) what the pf asserts the df is enriched by is
One test of enrichment
o
Incontrovertible enrichment :
Money - think about money, if I give you money (cash),

you are incontrovertibly enriched. Even if you dont want money,

money is the means of getting the things you do want, and so
therefore you are enriched. Exception - receiving 1000 in pennies
on your front lawn - would just be a burden rather than a benefit
Realised - If what is received is not money, then is it as

good as money? REALISED (selling the car that you are given, you
have realized the value. By your conduct, even though I received
from you a car, it's now as good as money since I've sold it)
What if pf install a conservatory on the df's house. It's not

money and it's not realised nor is it realisable. Cannot sell the
improvement without selling the underlying asset.
o
Important concept here - is that it is NECESSARY., and
intervention of pf has anticipated necessary expenditure then the df is
enriched.
o
Legally necessary - P to D, there's a regulatory body that
regulates D which requires some measure to be put in place so it binds
the D and that's going to cost money for the safety and compliance
measure to be put in place. Because it's required by law, it's legally
necessary. So the Df must install special things or wtv. For some reason
the pf confer benefit on the df that meets that obligation. There is no
objection that there was enrichment because the df would have had to
meet it anyway. (wrong level of gov paid for the fee for maintaining
minors)
o
Factual necessary - the weaker one. We are sure there's a
necessity to be performed but it's not legally required. Benefit by the
pf anticipates something the df is going to have to do anyway.
(neighbours roof blows off but you as the neighbour you pay for it, it's
not a legal requirement for him. You are just
ancitipating what your neighbour would have done)
Focus on request and acceptance.
If pf gives something to df in response to df's request, it's difficult for
df to say its not beneficial to me. By the df's own conduct, the df is
indicating to the world that it is valuable. More difficult is the case of so
called free acceptance.
Free acceptance - is bivalent (two meanings) - it means a test of
enrichment BUT it is also an unjust factor. In its capacity as an unjust
factor - ur in a room, then apparently someone enters your front yard and
start washing your front windows. You are inside and you can see they are

washing ur windows, and u say nothing. And in fact you kind of hide so ur
not detected. And later when they call for payment, you refuse. You have no
contract with the window washer, so the claim of the window washer
cannot lie in contract. IT might on some facts be that the window washer
has claim in quantum meruit. No money, no realised, difficult to detect
realisable, not legally realisable, so inconvertrible enrichment is not
relevant. No request. But there's a free acceptance which is established
when a recipient accepts with the possiblity of rejecting knowing that the
benefit is not being provided gratuitiously. Acceptance prevents recipient
from saying it's not beneficial to me, when their conduct is completely ot
the contrary. Conduct of the recipient is that the conduct IS beneficial. You
accepted with opportunity to reject while it was clear that it was not a gift.
By my conduct it would be unconscientious to say that it isn't benefifcial.
CAN ALSO say stuff like it was not beneficial to you, or that why should the
burden be on me to actively reject.
Person that tries to wash your car window - t wouldnt be free
acceptance because u give them a gold coin under duress, its not because
you accepted with an opportunity to reject
Refuse to return (Coys) - auction for a car and personalised number
plate that was not meant to be sold, but got sold with the car. the owner of
the number plate said to the new owner I want it back and new owner said
no. Owner of the number plate brought action for unjust enrichment. CoA if you receive something ur clearly not meant to be and u refuse to give it
back, u cant then say that you dont receive a benefit. That conduct in itself
shows that u are enriched and inconsistent with ur plea to say that u are
not enriched.
We are not asking did the recipient personally receive and value the
thing? WE are trying to find out did the DF the recipient, indicate something
which would be an objective mark to the world that they value it? Its not
finding out the subjective mind of the recipient. We are only interested in
my signal of value to the world and not my signal of my secret desire.
Just some value and not the true value.
NEXT CLASS: Read the reading for next class, dont worry about
Sempra, just note Sempra for later. Need to read Benedetti, Lumbers,
Barker and Grantham plus the extra pages.