Private Law Theory

ABSTRACT
Much confusion currently attends the idea of unjust enrichment in Australian private law. Although Australia was amongst the first Commonwealth common law jurisdictions to recognise the idea, a more sceptical High Court in the latter part of the 20th century and early years of the 21st century preferred to analyse restitutionary problems through the historical lens of the ancient forms of action and traditional equitable concepts of good conscience. This article articulates and distinguishes between five different roles that unjust enrichment might play in modern legal reasoning in Australia, providing a clearer picture of both what it is and – equally importantly – what it is not. A clearer view of the scope and function of the concept in legal reasoning will lead, it suggests, to a more confident acceptance, and coherent use, of the idea of unjust enrichment by courts. It also has key implications for the pleading of restitutionary claims.

Kit Barker, Unjust Enrichment in Australia: What Is(n’t) it? Implications for Legal Reasoning and Practice (2019) 43 Melbourne Law Review 903.

First posted 2020-11-16 13:36:24