Laws3111 Lecture10 2011

Week 10 – Restitution and Property: Remedies

• Restitution – return of payment or gains
• Generally a personal remedy
  • money had and received
  • quantum meruit (services)
  • quantum valebat (goods)
  • restitutionary damages
  • account of profits
• Propriety remedies (equitable charges/liens/trusts) also available, but only really preferable in the event of bankruptcy.
• Can be value received for personal if no defence, or value surviving/afterwards for proprietary/change of position
• Note: Property Rights post bankruptcy protected from creditors under bankruptcy Act (s 116(2)(a)) and PPSA (s 8(1)(c))

Proprietary Remedies

• Normally equitable – liens and constructive trusts
• Can be hybrid – rescission/rectification
• Rescission: Contract void, money/assets paid must be returned
• Rectification: can also lead to proprietary consequences, dependant on nature of rectification

Trusts

• arises where property is transferred with no intent for the transferee to benefit
• Failure of an express trust (anti-beneficial transfer – unjust to let recipient retain property in absence of trust)
• “apparent gifts” – when plaintiff did not intend to benefit the defendant, equity will require the gift to be returned
• Wrong-doing with the intention of benefit (eg. Theft, fraud, etc.)
• MAY arise outside of contract/intentional torts – but the law is unclear (Ilich v R) – but Chase Manhattan v Israel-British Bank suggests that they MIGHT.

Liens

• Less intrusive than a trust, but there must be some connection between the debt and the asset – eg. Work done on that particular asset
• Calverly v Green – both contributed to house repayments, held to both own the house in trust, proportional to their respective contributions (2/3rd to 1/3rd) with a lien over the wife’s share for his additional contributions.

Tracing

• Identifying the location of value where the value of one asset (eg. Stolen money) was used to acquire another asset (eg. Purchased a painting). Must be an identifiable asset, and merely tracing does NOT necessarily allow the asset to be claimed.
• Can also follow money GIFTED to a third party, but not exchanged for value (Black & Black v Freedman)