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Restitution (Most common constitution claims (Quantum meruit ('the…
Restitution
Most common constitution claims
Quantum meruit ('the amount earned')
Money recovery of certain type of payment Requirement
Free acceptance
1) Pavey v Matthews & Paul
2) Brenner v First Artists's Management
Request
1) Lumbers v W Cook Builders Pty Ltd (the most recent of the 3 decisions)
Money had and received
Money recovery of certain type of payment Requirement
Compulsion
2) a threat to cause harm to property
3) a threat to infringe a person's legal right
TA Sundell
1) a threat to cause harm to a person
Total failure of consideration
Failure of consideration means failure of the basis of the payment or the purpose for which the payment was been made
Fibrosa
Money can only be recovered if it was paid for a consideration that has totally failed. If the payer has received some party of what he bargained for, no restitutionary action is is available
Baltic Shipping
A part of a sum paid can be recovered if the amount can be attributed to a distinct and severable part of the consideration, and that part of consideration has failed.
Roxborough
Mistake
David Securities Pty Ltd v Commonwealth Bank of Australia Ltd
Terminology: Restitution v Unjust enrichment
Restitution: type of remedy (we are seeking)
Restitutionary claims have been described as 'quasi-contractual'actions since they were said to be based on an implied or fictitious contract.
Pavey & Matthews Pty Ltd v Paul: the High Court conceptualized the law of restitution by acknowledging that the basis of restitutionary claims if not an implied contract ,but an obligation imposed by law in order to prevent unjust enrichment
Unjust enrichment: basis of claim
From unjust enrichment to unconscionaility: HC move from viewing restitutionary claims as based on prevention of unjust enrichment --> base on desire to prevent unconscionability
Lumbers v W Cook Builders
Gummow J in Roxborough v Rothmans (2001)
Equuscorp (2012) -- joint judgment potentially signaled a return to the unjust enrichment rationalization
BUT, more recent decision in AFSL v Hills Industries emphasizes Equity and Unconstitutionality
Benefit
May be conferred under a contract
that is unenforceable or void, benefit can be conferred under a contract that is:
3) Void for uncertainty or incompleteness
Brenner
1) unenforceable as it does not comply with the statutory requirement of writing
Pavey v Matthews & Paul
4) Void for illegality
2) Void because one of the parties lacks contractual capacity
that has been or is subsequently terminated for breach
that has been or is subsequently terminated by frustration
Fibrosa