Chiew Ee Kwong, ‘Proprietary Remedy for Unjust Enrichment’

ABSTRACT
One of the most persistent questions in common law is whether proprietary remedy should be made available to claimants in cases of mistaken transfers under unjust enrichment. The continuous debate over this issue is unsurprising, given that a claim for unjust enrichment is an area of law that is still in its infancy, relative to the history of common law. English law hitherto has recognised that a successful claim for mistaken transfer under unjust enrichment accords the claimant only a personal claim. Traditionally, Malaysian courts too have rejected the availability of proprietary remedy for unjust enrichment. This article explores the arguments against and in favour of proprietary restitution for unjust enrichment. This article will also consider the Federal Court decision in RHB Bank Bhd v Travelsight (M) Sdn Bhd and Others and another appeal and how this case should be re-characterised as a case for proprietary remedy for unjust enrichment.

Kwong, Chiew Ee, Proprietary Remedy for Unjust Enrichment (June 1, 2018) [2018] 4 Malayan Law Journal lxx.

First posted 2021-12-02 14:00:54

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