27:ityo/QueenslandLawJournal Vol. 16No. 1~ ~,

\'-~,:,Restitution at the Level of a Secondary~al Obligation·

'" very long ago that students of contract, when perusing the'pter headings in their text book would find placed, at theapter entitled "Quasi-Contract". This was because it was,at restitutionary obligations at common law were based on

icontract". Within that chapter there were likely to be a,f diverse headings, such as recovery of money paid by mis­,er duress or when there is a total failure of consideration,\meruit claims, money paid under ineffective contracts, andf'tort. I suspect that in most contract courses the principlesAted within that last chapter remained untouched and myste­

{'hat position is rapidly changing in Anglo-Australian law.1 In~Jjar published the first edition of his monograph, The Law~i-Contract,· his second was published in May this year. In:,(iff and Jones published the first edition of their landmark" 'e Law 0/Restitution, the second was published in 1978 and

in 1986. In 1985, Professor Peter Birks published in En-~'~s'admirable book An Introduction to the Law 0/Restitution'f~ provided a detailed, original analysis of the subject; a pa­,J(r"edition was published this year.2 The chapter headings in~~,f~f the other texts have changed as well. In Chitty and Anson,,"" of "Quasi-contract" you will now find the name(ution" .3 In the fourth edition ofHa/sbury's Laws0/Eng/and,"ase "Quasi-Contract and Restitution" has been adopted.4

,I inating reasons, which led to this area of the law being ne-.for a period as a back-water tucked away in contract, have;scribed by Goff and Jones, Birks and others.987, in Pavey & Matthews Pty Ltd v. Pau[S the High Court of-·a held that a quantum meruit claim for work done under an

JIve contract is founded on an obligation to make restitution}'not on an implied contract, but on the concept of unjust en­~nt. Again last year, in ANZ Banking Group Ltd. v. Westpac~ ~ ',.

I,

~vised version of a paper delivered at the symposium on Restitution sponsoredhe Faculty of Law of the University of Queensland on 15th September, 1989.

, urer in Law, University of Queensland.'he United States, developments have been earlier: see Keener, A Treatise on\'Law oj Quasi-Contracts:. 1893; Woodward, The Law of Quasi-Contracts,~; American Law Institute, Restatement oj the Law ofRestitution, 1937. See

o Palmer, The Law ofRestitution, 1978,4 vols. \" fessor Birks' "Introduction" as he calls it runs to 455 pages. One can only" el at the thought of how big his major work will be."tty on Contracts, 25th ed. 1983. Vol.1 Ch.29 (J. Beatson); Guest, 00., Anson'swofContract, 25th ed., 1979, Ch.21.

",Isbury's Laws ofEng/and, 4th ed., 1974, Vo1.9, paras. 630-750.,.987) 162 C.L.R. 221.

28 P.A. Butler

Banking Corporation6, the High Court accepted ANZ's submissionthat the basis of the common law action of money had and receivedfor recovery of an amount paid under a fundamental mistake of factshould now be recognised as lying not in implied contract, but in res­titution or unjust enrichment.

In both Pavey and ANZ Banking a passage from the judgment ofLord Wright in the leading House of Lords case of Fibrosa v.Fairbairn was cited as supporting authority. Relevant extracts fromthat passage read as follows:

It is clear that any civilized system of law is bound to provide remediesfor cases of what has been called unjust enrichment or unjust benefit, thatis to prevent a man from retaining the money of or some benefit derivedfrom another which it is against conscience that he should keep. Suchremedies in English law are generically different from remedies in contractor in tort, and are now recognized to fall within a third category of thecommon law which has been called quasi-contract or restitution ... .The obligation is a creation of the law, just as much as an obligation in ~~

tort. The obligation belongs to a third class distinct from either contractor tort, though it resembles contract rather than tort.7

In speaking as he did of these categories of the law, Lord Wrighthas here adopted the tripartite division of the law into contracts, tortsand restitution, which was recognised by Seavey and Scott, the re­porters of the Restatement ofthe Law ofRestitution, 1937. In an ar­ticle by them entitled "Restitution" published in the Law QuarterlyReview in 1938, Seavey and Scott, in response to an invitation by theeditor, sought to explain why they had used as a title for the Restate­ment a word "indefinite in connotation and unfamiliar to the profes­sion."8 In that article, the learned authors said that they based theirtripartite division on the purpose each division served. Under the lawof contracts, a person is entitled to receive what another has prom­ised him or promised another for his benefit. The law of torts is basedupon the premise that a person has a right not to be harmed by an­other with respect to his person and his interests in things and in otherpersons. With respect to restitution, a person has a right to have re­stored to him a benefit gained at his expense by another, "if the re­tention of the benefit by the other would be unjust." "The lawprotects this right," it was said, "by granting restitution of the bene- "fit which otherwise would, in most cases, unjustly enrich the recipi­ent."9

In this paper, this obligation of restitution is examined moreclosely and it is suggested that, as it has developed historically , "through the forms of action, the obligation may be usefully viewed as 'a secondary remedial obligation within a schema in which reparationmay be a possible alternative remedy, and which als<;) includes pre­vention (or punishment). This endeavour shall comprise the first sec- 'tion of the paper. The second section is concerned with theapplication of this theory, in order to delineate more clearly the scope

6 (1987-8) 164 C.L.R. 662.7 [1943] A.C. 32 at 61; emphasis added.8 (1938) S4 L.Q.R. 29.9 Ibid. at 31-32.

''lestitution at Level ofSecondary Obligation 29j~~1'I'

:~' utionary claim. In relation to existing claims, which are con­~ 1cbe restitutionary, I shall -

,fry those claims which clearly ought to be regarded as lyingStitution; .:~t that some claims should be excluded;"·ne a possible new claim; and finally

::''ider the assertion of a restitutionary claim where a non­~tlltionary claim has been excluded by statute for public pol-~,easons.

1'1}

~~tion as A Secondary Remedial ObUgation: The Theory

strong support in the writings for the view that restitutionp a third category of the law. Seavey and Scott in their article

,pon the writings of earlier theorists; in America, Keener's':e on the Law of Quasi-Contracts in 1893 followed by" ard's Law of Quasi-Contracts in 1913, and, in England,

_' Id's chapters on Quasi-Contract which formed part of hise., lectures published in 1931 as The Province 0/ the Law 0/In the last twenty years or so, Goff and Jones have encouraged,~nking by proposing a generalised right to restitution subject top limiting principles. lo Other modern writers, too, haveted this approach. II In contrast, Birks has adopted a more ana­:~) approach. He regards unjust enrichment and restitution as~ e' g an independent place in two series. "Unjust enrichment" he~s in a series of events: consent, wrong, unjust enrichment, oth­",~Restitution" he places in a series of responses: compensation,shment, restitution, otherS. 12

any of the writings recognise a distinction between a restitution­'claim which does not depend upon a wrong done to the plaintiff~\ra restitutionary claim in which the defendant has enriched him­,,,by committing a wrong against the plaintiff. So we find in the lat-,~:edition of McGregor on Damages the following passage:'jjptive of actions in quasi-contract:II

. ctions claiming money in quasi-contract, whether by the action foroney had and received, by the action for money paid or under a

, uantum meruit, do not depend upon a wrong done to the plaintiff. Theireryexistence stems from the fact that no wrong, whether tort or breachf contract, is available upon which the plaintiff might sue. Illustrations

. e provided by actions for money paid under a mistake of fact, actionsor money paid under a contract which is in some way vitiated, actions to

',ecover money paid to a third party for which the defendant is primarily·able. 13

~~Professor Birks, also, has adopted a similar position. He makes a: ajor divide" between that segment of the law of res~itution

f~~~~arkedby cases where a wrong recognised as such has been commit-, " ~.

\ I)~t

),Ooff & Jones, The Law ofRestitution, 3rd ed. 1986, p.lS et seq.See, e.g., Burrows, "Contract, Tort and Restitution - A Satisfactory Division or

-,'. Not" (1983) 99 L.Q.R. 217.~ Birks, An Introduction to the Law ofRestitution, 1985, Ch.l.~ McGregor, Law ofDamages, 15th ed. 1988, p.4.

30 P.A. Butler

ted, and those cases of restitution "by substraction from" the plain­tiff. So, in relation to the recipient of a mistaken payment who knowsthat it is not due, he says, "He is morally culpable, but the ...restitutionary right is not attributable to any characterisation of hisconduct as a breach of duty."14 In contrast, the restitution forwrongs category, Birks says, covers "all conduct, acts or omissions,whose effect in creating legal consequences is attributable to its beingcharacterised as a breach of duty. The term thus includes not only alltorts but also breaches of equitable and statutory duties and breachesof contract."IS As a result of drawing this division, Birks concludesthat "restitutionary rights arising not from wrongs but from unjustenrichment are primary, just as the rights born of contract (as op­posed to breach of contract) are primary." In contrast " restitution­ary rights ... triggered y wrongs ... are always remedial orsecondary. Remedial becau ey come into being as the sanction ... for a breach of duty; and sec dary because the duty breached sup­poses the existence of a pri ary right anterior to the remedialright" .16

This "major divide" is extre ly useful in identifying the areas ofthe law which have been neglected. At the same time, it could be saidthat these cases of restitution "by subtraction from" the plaintiffconnote wrongful conduct by the fact of their enforcement by thecourts. The fact that we use the word 'wrongful' or 'wrong' does notmean that we are suggesting moral blame on the part of the recipientof the benefit. Some already established torts can be committed with­out fault e.g. detinue and conversion. Likewise, breaches of equita­ble and statutory duties and breaches of contract can be committedwithout fault.

The view that there are some restitutionary claims that do not de­pend upon a wrong done to the plaintiff may simply be a reflection ofthe underdevelopment of this area of the law. It is important to ap- ,preciate that historically, adjudication must precede the development 'of the conception of law, that the conception of wrong precedes that \of duty, and that the inference that a wrong has been done is drawn 1

from the very fact that a judgment has been made against a defen- ~

dant, which, in its enforcement, attracts the legal coercion of thestate. That the conception of wrong precedes that of duty has beenexpressed by T.A. Street in his trilogy on The Foundations ofLegal 'Liability as follows:

From the fact of legal coercion as incident to the enforcement of a :judgment the mental inference is drawn that a wrong was done or actcommitted which called for punishment or redress. The conception of ;,legal wrong is thus perhaps even more fundamental than the idea of duty.The former is an act or omission and we can become acquainted with itsactual consequences. The idea of a wrong, however, necessarily leads tothe abstraction of duty, that obligation which can only be known in its ~

breach. One who does certain acts termed wrongful renders himself ~

amenable to law and violates a duty. :... The conceptions ofright and duty form a part ofthe general problem

to be worked out. No man can safely say upon a priori reasons that a

14 Birks, Ope cit. p.314.15 Birks, Ope cit. p.313.16 Birks, Ope cit. p.43.

31~":'k Restitution at Level ofSecondary Obligation

J,~ lcular legal right or duty exists. The existence of a legal right or dutyf~t be proved by reference to cases in which it has been recognized.<'. Legal evolution begins in the phenomenon ofadjudication. It beginsIi a legal institution, like the court or judge, and the law is a productl'he operations of that institution . . .at which to the analytical jurist seems most fundamental usually'~ears late in point of historical development. Nor can it be otherwise.'e concrete must precede the abstract. A generalization that will bind, y facts together cannot be made until the individual cases have been'arately scrutinized. The law, like other sciences, is built up by induc­\": but this truth does not lie on the surface; for the decision of:·vidual cases always involves a process of deduction, the major prem­of the syllogism being an abstract principle of law. The most conspic­s feature in the administration of law adjudication, being thus acess of deduction, the truth that the doctrine applied is obtained by

'uction is rendered obscure. But before the syllogism can be framed,'uction must supply the major premise, and no advance at all can beerwise made.17

is this process of induction which has led judges and writers toct a general body of rules of just conduct (primary obligations)

'ach of anyone of which constitutes a tort, or quasi-tort (includ­,~reach of an equitable duty), a wrong, enforceable by the courts"ondary obligation) for which the usual remedy is compensation"~sessuffered by the plaintiff. Such rules laying down the condi­~:, a breach of which constitutes a wrong enforceable by the"s, we may call primary obligations. The obligation which a

enforces arising by way of a response to a breach of a primary,ation may be called a secondary obligation. The same inductive~s led to the abstraction of a general body of rules which pre­which acts voluntarily undertaken to be performed by one per­

pwards another person or persons will be regarded as binding oratory. Out of this we have the primary obligations developed in~9mmon law courts relating to agreement (debt, quantum meruit,:'tum va/ebat, and the modern contract based on mutual prom­

t and, on the chancery side, in relation to the voluntary assump-:of trusteeship.l is noteworthy that, only in the rarest of circumstances did com­law judges enforce obligations which had the effect of imposingsitive or affirmative primary obligation in the sense of activeg on a subject without that subject's consent. I8 One instance ofh we can be certain is the primary obligation on a parent to main­~a child. This has now been taken over by statute. Another possi­'xample now covered by statute is the duty of an owner of land,

called upon by his neighbour, to maintain the fences betweenlands. 19 Another example originating in equity is the duty to

,~bute, flowing from the maxim equity is equality. Such duties, ·ght call duties of co-operation.2O Other writers have used the

'. 1\. Street, The Foundations ofLegal Liability, 1906, Rotham rep. 1980, Vol.iii,'.6-9; see also Holmes, (1897) 10 Harv. L.R. 457, p.458 et seq.r a recent similar observation, see Markesinis, "Negligence, Nuisance and

.,Jfirmative Duties of Action" (1989) 105 L.Q.R. -104.,~"wrence v. Jenkins (1873) L.R. 8 Q.B. 274, cited by Abbot, Ope cit., at 495.

Abbot, "Keener on Quasi-Contracts" (1896) 10 Harv. L.R. 209-227, 479-512,1'490 et seq.

or

lp­ial

de­lofap­enthat,wnen­theeen'gal

oflidiff:helot:ntth­ta­ted

gilllesles1st~p- "In- ~

32 P.A. Butler

term duties of unjust sacrifice.21 In some cases, the courts may recog­nise the existence of the duty of co-operation involving altruism andself-sacrifice without attempting to compel its performance. One in­stance was where a man tried to save a child's life at the risk of hisown, by snatching it from the path of an advancing train and waskilled in the attempt.22 No Court would have compelled him to takesuch a risk. But, when the risk was taken, the court recognised itshigh ethical character and the consequent legal right to run it, when,without such a reason, it would be legally unjustifiable. The result isthat the vast bulk of the primary obligations apart from those volun­tarily assented to prescribe conduct which must not be engaged in;that is, they are duties of forbearance.

Corresponding with these primary obligations are legal rights.Thus the right, a negative right, flowing from duties of forbearancerather than affirmative action we might call the right of freedom.23

The right to co-operation will fit somewhere within those very fewduties enforced by the courts which require affirmative action ratherthan forbearance.24 Consensual legal rights correspond with thoseprimary obligations enforced by the courts based on agreement.

The very same inductive process should lead to the abstraction ofgeneral rules of just conduct (primary obligations) for the restitution­ary claims based on enrichment at the expense of the plaintiff inBirks's sense of "by substraction from" the plaintiff. Plainly, therewould appear to be such an identifiable group of causes of actionwhich we may call restitutionary. However, I do question that suchgroup should be viewed as separate and independent from agreementand wrongs. Rather I think that the preferable view is that advancedessentially by Lord Haldane in Sine/air v. Brougham,25 that there aretwo main groups of causes of action: those based on breaches ofagreement (which include contract) and those of a tortious characterinvolving breaches of obligations of forbearance requiring a subjectnot to interfere with another subject's legally defined domain in rela­tion to that other's personality, interest in things, and in other per­sons. There is a possible third much smaller group involving breachesof affirmative duties. Restitution, then, consists of matter takenfrom liabilities involving breaches of agreement, but based not onbreach of a contractual promise, but on the acceptance of a benefitwithout paying the agreed or reasonable monetary equivalent (debtand the debt like claims of quantum meruit and quantum va/ebat),26

21 See Stoljar, The Law of Quasi-Contract, 2nd ed., 1989, p. 174, Ch.7, p.250;Stoljar, "Unjust Enrichment and Unjust Sacrifice" (1987) 50 M.L.R. 603. See alsoMuir, "Unjust Sacrifice and the Officious Intervenor", forthcoming in Essays onRestitution ed. Finn.

22 Eckert v. Long Island R.R. Co. 43 N.Y. 502 (1871) cited by Abbott, Ope cit. at 495.See also Wagner V. International Railway Co. 43 N.Y. 176 (1921) cited in Cahn,The Moral Decision, 1956, Ch.7.

23 See Abbot, Ope cit., at 493 et seq.24 Ibid. e

25 [1914] A.C. 398 at 415.26 See Daly V. Sydney Stock Exchange (1986) 160 C.L.R. 371; Youngv. Queensland

Trustees Ltd (1956) 99 C.L.R. 560 at 560, 569; Fabio Pty Ltd V. Bloore [1983] 1Qd.R. 107; Gino D~/essandro Constructions Pty Ltd V. Powis [1987] 2 Qd.R. 40at 45 et seq per McPherson J (debt); see Pavey &Matthews Pty Ltdv. Paul (1986)162 C.L.R. 221 (quantum meruit); see also Stoljar, Law ofQuasi-Contrgct, 2nded. 1989, p.192 et seq. And see also later section 2.4 of this paper.

33Restitution at Level ofSecondary Obligation

'; ~ain liabilities of a tortious nature which would seem to be-"n proprietary concepts.27 Possibly, liabilities based ons of affirmative duties might also be included. Examples of

ionary claims based on liabilities of a tortious character aref'ts of money made by mistake, under wrongful compulsion,-ere the basis or condition of payment fails (failure of consid­~). A feature of these tortious liabilities, which supports the

(' at they are proprietary based, is that the transfer of property" oney is not effective.28 Admittedly, money in the form of cur­':an be negotiated so that property passes with possession to the~a.rtY who takes bona fide for valuable consideration.29 But the'·ate transferee who receives currency paid by mistake or under'ul compulsion or where there is a failure of consideration, and1S it to a third party, will be liable to repay an equivalentit. To the paying man in the street, unmindful of the lawyer's

classification of remedies as proprietary or personal, such aree has misappropriated property that is rightfully his.n now to consider three passages from recent judgments of the

. ourt ofAustralia dealing generally with the concepts of unjust;'tnent and restitution. In Muschinski v. Dodds (1'985), Deane J.

.atever may be the position in relation to the law of other common law'potties . . . no such general principle [of unjust enrichment constitut­. /" the basis of decision] is as yet established, as a basis of decision as.tinct from an informative generic label for purposes of classification,:)'Australian law. The most that can be said at the present time is that:~,·Qst enrichment' is a term commonly used to identify the notion'Clerlying a variety of distinct categories of case in which the law has.'I,'bgnized an obligation on the part of a defendant to account for a~efit derived at the expense of a plaintiff.... 30

~,~Pavey's case (1987), His Honour elaborated upon the subject of,",$~ enrichment:l~'constitutes a unifying legal concept which explains why the law recog­, es, in a variety of distinct categories of case, an obligation on the part'l defendant to make fair and just restitution for a benefit derived ate expense of a plaintiff and which assists in the determination, by the

rdinary processes of legal reasoning, of the question whether the lawltould, in justice, recognize such an obligation in a new or developingtegory of case. . . . In a category of case where the law recognizes an

,bligation to pay a reasonable remuneration or compensation for a

f1, Sine/air v. Brougham [1914] A.C. 398 Lord Haldane went on to place:,qasi-eontraetual actions within contract by reason of the implied contract theory,'hich view is untenable: see e.g. Pavey (1987) 162 C.L.R. 221. On the early: gnition of liabilities in restitution being based on proprietary concepts, see the, portant contribution of Stoljar Ope cit. n.26, recognised in hindsight by Atiyah,

e Rise and Fall ofFreedom of Contract, 1979, p.181 n.21. The view which Idvance in the accompanying text is one which I have adapted from Dr. Robin'Hair's helpful comments on my paper.

!Iich v. R. (1986) 162 C.L.R. 110 (fundamental mistake); Duke de Cadava/ v.o/Iins (1836) 4 A. & E. 858 (wrongful compulsion); Toovey v. Milne (1819) 2 B

, ~ A 683 (failure of consideration).>, i/lerv. Race (1758) 1 Burr. 452.1985) 160 C.L.R. 583, at 617.

[);

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r- ;

~r

:n,n ''it)t26

;.n,

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34 P.A. Butler

benefit actually or constructively accepted, the general concept of resti­tution or unjust enrichment is ... also relevant, in a more direct sense,to the identification of the proper basis upon which the quantum ofremuneration or compensation should be ascertained in that particularcategory of case.31

There is a final crucial passage in the ANZ Banking case (1988)where, in the judgment of the Court, the obligation for the first timewas described as "a prima facie obligation to make restitution, in thesense of compensation for the benefit of unjust enrichment, to theperson who has sustained the countervailing detriment" .32

These passages suggest four features about restitution. First, it isconcerned with distinct categories of case as understood under thepresent law, not with some all-embracing overreaching principle.Thus, rather than inclining to a generalised right of restitution pro­posed by Goff and Jones, it is more consonant with the approach de­clared by Lord Diplock in Orakpo v. Manson Investments Ltd:

My Lords, there is no general doctrine of unjust enrichment recognisedin English law. What it does is to provide specific remedies in particularcases of what might be classified as unjust enrichment in a legal systemthat is based upon the civillaw.33

Birks has accepted this approach in stressing the importance of look­ing down to the cases.

The second suggested feature is that it contemplates new or devel­oping categories of cases. Thirdly, restitution is relevant to the iden­tification of the proper basis upon _which the quantum ofcompensation should be ascertained in a given category of case.Fourthly, the benefit received by the defendant must correspond witha countervailing detriment to the plaintiff. It is submitted, that thepresence of a minus-plus linkage is an important feature of arestitutionary claim founded on just enrichment, and can be tracedall the way back to the ancient forms of action of account and debt.It is further submitted that all of these features are descriptive of andcompatible with the notion of restitution at the level of a secondaryremedial obligation.

Thus, restitution may be described as a secondary remedial obliga­tion whereby one person is required to give back to another a benefitin specie or its value in money gained by reason of the defendant'swrongful act, which benefit corresponds with a countervailing detri­ment to the plaintiff. Wrongful act here means any act or omissionwhich elicits the redress of a court and from which the existence of alegal duty is inferred. As already indicated, it can cORsist of eitherbreach of an agreed condition or some proprietary based tortious act.

Restitution is to be contrasted with reparation which is the second­ary remedial obligation whereby one person is required to repair theloss suffered by a plaintiff, by reason of the defendant's wrongfulact, either by means of a specific or compensatory enforcementorder. The word "reparation" (as opposed to "compensation") isadopted from Lord Blackburn's judgment in Livingstone v.

31 (1987) 162 C.L.R 221 at 256-257 (emphasis added).32 (1988) 62 A.L.J.R. 292 at 295 (emphasis added).33 [1978] A.C. 95 at 104.

35ution at Level ofSecondary Obligation;'1(.

,;880) 5 App. Cas. 25 at 39.,1bbot, "Keener on Quasi-Contracts" (1896) 10 Harv. L.R. 209-224,479-512."cGregor, Law ofDamages, 15th ed., 1988, p.7 et seq.

,,10/ Co (1880) in which he stated the general principle at,""'on which damages are awarded:

;'y injury is to be compensated by damages, in settling the sum'ifo be given for reparation of damages you should as nearly aset at that sum of money which will put the party who has beenf \Vho has suffered, in the same position as he would have beenI'ad not sustained the wrong for which he is now getting hislion or reparation.34

<4' ge enables us to give proper recognition to the fact thattory awards, as distinct from specific relief, are awardedj':estitution in respect of the identified benefit in the~s hands and in reparation for the plaintiffs loss. The prin­: s enforced in reparation are, of course, breaches of con­

",torts. However, the equitable claim of a beneficiary to bejed for the loss by a trustee of trust property falls within this~ell as claims for equitable damages under Lord Cairns' Actfof apprehended wrongful acts., 'Keener published his pioneering treatise on the Law of,ntracts in 1893, E.V. Abbott wrote a lengthy critical review

~:: two parts in the HarvardLaw Review in the course of which\,:bsed a general remedial framework in which restitution iskhot as a primary obligation but as a secondary remedial obli­3S The author believes that Abbot's general proposal is,.'based and is consonant with our knowledge and understand­

J:Jte common law system. Of that system, in brief, we can say:¢, abstract order of the common law rests on general rules ofnduct (primary obligations), made up by and large of negative,ions of forbearance and a few positive (requiring active doing),.ons, and positive and negative consensual obligations.,,,~he interstices of these general rules, positive (very rare) and: e statutory rules of just conduct may be legislated which maye, supplement, modify, or abrogate the general rules declaredcourts. The whole body of rules Gudge declared as well as stat­

Irules of just conduct) is subject to the supplementary and amel­,'e jurisdiction of equity unless such jurisdiction has been~ ed by consensus or legislation. The breach of a primary obliga-isturbs the position of organic equilibrium existing between the

"of the abstract order. Justice lies originally in the maintenance,secondarily, in the restoration, of that order. The maintenanceeorder is effected by the obedience of the subject backed up by':~ntion through the court system. It is the duty of the person who

'., ·ts a breach ,of a primary obligation to put the injured person as:ly as possible in the position in which that person would be if

had been no breach.36 It is that duty, a secondary obligation:' g only upon the breach of some primary obligation, that is usu­{.~nforced by the courts through the granting of appropriat,~reme-

36 P.A. Butler

Prohibitory injunction.Delivery up for destruc­tion.Monetary order (exem­plary damages). Accountof profits.

dial relief; it will be a rare case where the courts are able to preventthe breach of a primary obligation.37

An Overall Schema

A remedial schema accommodating restitution, but putting to oneside proprietary remedies regarding land, may be set forth as fol­lows. 38 We are concerned here with private law remedies governingthe relations between subject and subject. We are not concerned withthe public law area governing the relations between subject and state.

Function Remedy

PREVENTION -1. Specific - of breach, actual or

threatened, or repetition of breachof a legal or equitable obligation.

2. Compensatory deterrent - thosebreaches of a legal or an equitableobligation resulting in gains by Dwith no countervailing detrimenttoP.

REPARATION -1. Specific

[Possible for breaches of positive(active doing) obligations and, al­though rarely, negative obliga­tions]

2. Compensatory (in Value)[Possible if P has suffered orstands to suffer loss by means ofD's wrongful act, actual or appre­hended.]

Specific performance.Award of an agreed sum.Declaration. Mandatoryinjunction.

Monetary order (Dam­ages; equitable indemnifi­cation; equitabledamages under LordCairns Act).

RESTITUTION -1. Specific

[Possible if D has obtained prop- Order effecting restitu­erty of P by means of D's wrong- tion of property. Rescis-ful act, actual or apprehended, sion. I,

and the property can be restored].2. Compensatory (In Value)

[Possible if D has received a bene- Monetary order. Accountfit from P by means of D's wrong- of profits.ful act, actual or apprehended].

[Wrongful act means an act or omission which elicits the redress ofa court and from which we infer the existence of a legal duty].

37 See .generally Hayek, Law Legislation and Liberty, 1982 rep. revised, v.2, p.35 etseq; Abbot, "Keener on Quasi-Contracts" (1896) 10 Harv L.R. 209-227, 479-512,esp at 496-500.

38 I have been aided by both Abbot, Ope cit. at 499-500 and Burrows, Remedies jorTorts and Breach ojContract, 1987, p.8.

37

~ Remedial Obligation of Restitution: ApplicationI

"'g Restitution at Level ofSecondary Obligation

'tablished claims

'Ins (rather than loss) from misappropriation

't>ndition of restitution that what the defendant gains must beerbalanced by a detriment suffered by the defendant finds-application in a misappropriation case. An instructive illustra­provided by the important detinue case of Strand Ele.ctric Co

"fordEntertainments. 39 There the defendants had refused to re-b the plaintiffs certain profit-earning electrical goods which the'iffs hired out in the course of their business, and had made use,:'goods during the detention for their own ends. The Court oft' held that, in addition to an order securing the return of their

j or their value, the plaintiffs were entitled in the circumstancesover as damages the full market rate of hire of such goods forhole of the period of detention. Somervell and Denning L.JJ.ed the analogy of recovery of mesne profits in the case of deten­:'f land.4o It was held immaterial that the plaintiffs might notealised the full hire during the detention period by reason of theat only 75 per cent of their stock of equipment was generally

p hire, that not infrequently some of it was loaned gratis andome of it might have been accidently damaged or destroyed. In

se to the argument that the plaintiffs might not have found hir­omer L.J. said: "A defendant who has wrongfully detained

rofited from the property of someone else cannot avail himselfypothesis such as this. It does not lie in the mouth of such a de­nt to suggest that the owner might not have found a hirer."41,Mediana' '42 and similar cases were distinguished by Somervellenning L.JJ. on the ground that, where the tort involved dam­

"d not misappropriation, the defendant did not have the use of,,: ods although the plaintiff was deprived ofthem for a time. ThisJ sts that their Honours must have been focusing not only on theo the plaintiff but also on the benefit to the defendant.43 Some­L.J., however, followed the fictional approach of Romer L.J. to}the result into loss to the plaintiff. Both Somervell and Romer: reserved their opinions, "in this comparatively virgin field" , as,ether the plaintiff would be entitled to a similar measure of

. ges if the property had not been profit earning, or if the plain­'ad never applied it for the earning of profit. Denning L.J., on

I ther hand, recognising frankly that the amount the Court of Ap­:.was giving went far beyond the plaintiff s loss, did not limit his, of the defendant's liability in this way. "The claim for a hiringge", he said, "is therefore not based on the loss to the plaintiff,I n the fact that the defendant has used the goods for his own pur­s. It is an action against him because he has had the benefit of the

'952] 2 Q.B. 246. See the excellent discussion of the case in McGregor Ope cit...845 which I have drawn upon here.:952] 2 Q.B. 246 at 252, 253-254.1952] 2 Q.B. 246 at 257.~]A.C.113.~McGregor, Ope cit., p.845 n.42.

\l ~ ,

38 P.A. Butler

goods. It resembles, therefore, an action for restitution rather thanan action of tort."44 Viewed, then, in the light of restitution ratherthan reparation, it would seem that the plaintiff could always re­cover, beyond his proved loss, to the extent of the benefit conferredon the defendant by his use of the goods. Both Somervell and Den­ning L. JJ. also envisaged cases where an owner might be entitled tothe profits made by a wrongdoer by the use of a chattel, but the in­stant case was not such a case.

On the other hand, if the owner had suffered greater loss, hewould be able to recover that actual loss in reparation. "Suppose",said Denning L.J., "that a man used a car in his business, and owingto its detention he had to hire a substitute at an increased cost, hewould clearly be able to recover the cost of the substitute.' '45

If one examines the examples cited by Birks in the preceding arti­cle, of claims in restitution for benefits gained by the defendant by .reason of an established civil wrong to the plaintiff, it is possible toidentify a loss which may have been suffered by the plaintiff in lieu ofthe gains made by the defendant for the same wrongful act. We coulddescribe that loss as loss of the opportunity of user of the subject mat­ter in question. There is a minus - plus linkage, but not an exact equa­tion. In all these instances we could sum up the restitutionary claim asbeing in respect of the misappropriation ofa proprietary right oftheplaintiff. Misappropriation here means to take possession of and tomake use of exclusively for oneself without permission.

(ii) Wrongful Retention ofMoney

Against this background involving the wrongful detention of chat­tels, it is interesting and useful to turn to the wrongful withholding ofmoney, an area traditionally covered by account, and, then, via debt,money had and received. Reference has already been made to a num­ber of examples of such claims. Here, as has been already indicated,we are not accustomed to saying that the recipient of the benefit hasbeen guilty of a wrong. As previously submitted, it is also possible todescribe these examples as restitution in respect of the misappropria­tion of a proprietary right of the plaintiff.

In the restoration of the abstract order which has been disturbedby the payee's wrongful retention, the remedy which has hithertobeen enforced by the courts has not been in reparation in respect ofthe payer's loss, both direct and consequential, but in restitution inrespect of the benefit (money) in the payee's hands. But suppose thata payer mistakenly pays money into wrong hands and that money iswrongly withheld so that the payer is then required to borrow moneyat a higher rate of interest than the prevailing rate, for use in thepayer's business, or loses the opportunity of profitably investing themoney. In those circumstances, particularly now that the High Courtin Hungerjords v. Walkertf' has held, admittedly in a contractualcontext, that the loss of the use of money caused by the wrongfulwithholding by the defendant is compensable in damages, there

44 [1952] 2 Q.B. 246 at 254-255.45 [1952] 2 Q.B. 246, at 254.46 (1989) 63 A.L.J.R. 210, esp at 219 per Brennan and Deane JJ.

39'h. Restitution at Level ofSecondary Obligation

ims Which Should be Excluded

~e accept the dictum in ANZ Banking v. Westpac Banking thatafacie obligation to make restitution connotes "compensation, benefit of unjust enrichment, to the person who has sustained'untervailing detriment",47 it follows that there is no true;tionary claim -"'here no benefit has been rendered to the defendant; and, or al-matively,,here there is no countervailing detriment.

\1

,no reason in principle why a payer should not claim in repara­~"r his actual or consequential loss if to do so will give a greater:~~ In other words· out of a wrong deduced from unjust enrich­'1 the expense of the plaintiff (in Professor Birks's terminology,,btraction from" the plaintiff) we have arising, a right to repa­~as well as to restitution.

"ere no benefit has been rendered

situation can be identified by contrasting examples which can~ the course of or following contractual negotiations. For ex­.~, there might be a tendering situation, a letter of intent, or ale of the forms' , consequent to which, one of the parties does, or delivers goods or renders services in anticipation that a con­

',;will materialise or has materialised.48 If a contract can be madethe circumstances, all will be well and good. But this will not

ys be possible. In such circumstances a court may be led to con­'t a contract artificially or to deny the existence of a claim. In,,'~,cases, an alternative claim has been found to exist in restitution, ,on unjust enrichment. The recent English decision in British;iCorporation v. Cleveland Bridge and Engineering Co. Lttft9 il­''''tes this approach. Cleveland, a building contractor, required·n steel nodes for use in the construction of a building. It negoti­

ith British Steel and sent a letter of intent. The work then pro­"d in the confident expectation that through the efforts of the~rs on either side a formal contract would eventuate. Unfortu­y, the parties were unable to agree on a price or as to which partyto bear loss arising from late delivery. However, all but one of~ odes were delivered, although not on time, or in the right order.Ish Steel claimed the price due either on the contract or on a quan­"meruit basis. Cleveland denied the amount claimed as due in'tract and counterclaimed for damages for late delivery. Robertf J. held that no contract had been made, but that British Steel,entitled to a quantum meruit. Where one party commences worknticipation of entering into a contract and no contract ev~ntuates,e law simply imposes an obligation on the party who made the re­st to pay a reasonable sum for such work as has been done pursu-

,[1988] 62 A.L.J.R. 292 at 295.'See Goff & Jones, Ope cit., pp.505-511; and Beatson, (1989) 2 J.C.L. 65 at 67-70.:J1984] 1 All E.R. 504.

40 P.A. Butler

ant to that request, such an obligation sounding in quasi contract or,as we now say, in restitution" .50

In Cleveland, there could be no doubt that a benefit had been re­ceived in circumstances where it was rendered non-gratuitously. Thiswill not always be the case. In the Australian case of Sabemo v. NorthSydney Municipal CouncifSl, recompense was given to a builder in re­spect of plans and estimates prepared in anticipation of the conclu­sion of a contract with the Council, but which were rendered uselesswhen a newly elected Council decided not to proceed. A distinctionwas drawn between the work which a builder as a normal rule wouldperform gratuitously and work not so normally performed. The for­mer work would not generally give rise to a quantum meruit since itwould be regarded as a necessary outlay risked in order to gain thecontract. Here, the work in question was done at the invitation of theCouncil, after Sabemo was announced to be the successful tenderer.It seems doubtful though, that the developer had been enriched bythe receipt of plans for which it had no use. In a recent article by anEnglish writer, Mr Beatson, it has been suggested that the claim is forreliance loss.52 This does seem to be the better solution for finding re­dress for the plaintiff. The High Court, in its recent decision in Wal­ton Stores (Interstate) Ltd. v. Maher (1988),53 has found thenecessary vehicle for recovery of 'detrimental reliance' in the doc­trine of equitable estoppel. So the claim in Sabemo lay not in restitu­tion, but in reparation.

(ii) Where there is no countervailing detriment

(a) The right to contributionThe right to contribution has been claimed to be an example of arestitutionary claim founded on unjust enrichment.54 The right tocontribution arises from the exercise of a contractual right by a thirdparty creditor against an obligee (a debtor) in order to adjust as be­tween co-ordinate obligees, the burden which falls upon performanceby the obligee of the obligation which he has assumed consensually.The leading early case is Dering v. The Earl of Winchelsea (1787).55There, the plaintiff and the defendants were sureties on separatebonds for the faithful performance of his duties by a brother of theplaintiff. The brother having defaulted in his duties, the plaintiff wascompelled as surety to pay the whole loss. The plaintiff then soughtto compel the other two sureties to contribute to the burden in equalshares. There was no evidence of any contract to contribute. There­fore, the plaintiff had voluntarily assumed the risk of bearing thewhole burden in any event. Some would argue that benefit requiresan increase in the defendant's wealth and should not be extended toinclude a saving of liability. But even if a saving of liability is re­garded as a benefit, there had been no countervailing detriment suf-

50 [1984] 1 All E.R. 504 at 511.51 [1977] 2 N.S.W.L.R. 880.52 Beatson, "Benefit, Reliance and the Structure of Unjust Enrichment", (1987)

C.L.P.71.53 (1987-88) 164 C.L.R. 387.54 See Goff & Jones, Ope cit., p.268 et seq; Birks, Ope cit., pp.192-193.55 (1787) 1 Cox. Eq. 318.

41"Restitution at Level ofSecondary Obligation

:-ach of Equitable Conflict Rule'xamples involving a gain by the defendant without a corre­

, g diminution in the plaintiffs wealth are to be found in some'es of the equitable conflict rule. A clear example is provided by!nan v. Phipps. 56 There a trust estate, the major asset of whiched of a large minority shareholding in a private company, was,incapable of buying up additional shares in that company., ,0 defendants wrongly held themselves out as representing thes and thereby gained valuable information about the

,t" y's assets which enabled them to obtain finance to acquire"nal shares in the company and generate profits for all the'olders. Although they had acted bona fide they were held ac-,- ble to the trust in respect of the shares acquired and dividendsed thereon, subject to the award of a generous allowance forervices. In those circumstances, there could be no loss to theff, so that the liability of the defendants did not lie in restitu-ather, the remedial function underlying such cases would ap­

o be punishment or prevention, that is, to deter such conduct.

-'y the plaintiff. The principle underlying contribution was heldI uality is equity: "[T]he sureties are all in aequali jure, and, as,,:requires equality, they shall equally share the burden." Eq­~s imposed a positive duty to contribute on the part of an obli­, ards co-ordinate obligees. The remedy of the plaintiff is byf reparation to recover the plaintiff s loss resulting from a:~of that obligation; it does not lie in restitution.

"e~C/aims

'''e J. made reference in Pavey to the concept of unjust enrich­"~'as assisting the according of recognition to new or developing'ories of restitution cases. In that regard, the position of the con­'breaker who has rendered services under an entire contract de­'8, examination. Before doing that it is useful to compare the,act breaker who has paid money.

~967) 2 A.C. 46., cDona/d v. Dennys Lasce/les (1933) 48 C.L.R. 457; Dies v. British andnternational Mining and Finance Co [1939] 1 K.B. 724.1980] 1 W.L.R. 1129.

ecovery of money. y in breach can recover money paid in advance otherwise than

, eposit or as security for due performance or in satisfaction of a',arising on the making of a progress claim based on part perfor­~e. Such a payment is conditional upon the subsequent comple­

_~;of the contract. If the contract is terminated before completion,~ondition fails and the payment ceases to be due, or, if paid, is re­'rable if there has been a total failure of consideration.57 How-~. a decision of the House of Lords in Hyundai Heavy Industriestd v. Papadopou/ousS8 has taken the position further by holdingunder a boat building contract an advance payment made other­

:t than as security for due performance or in satisfaction of an in-\'

42 P.A. Butler

debtedness arising on the making of a progress claim, will not beregarded as conditional. This is so even if the payer has not receivedany consideration in the nature of part performance for which thepayment was payable.

(b) Recovery for servicesA party in breach who has part performed may, in the case of sever­able portions of the contractual obligation, recover in debt in respectof each portion that has been fully executed. However, if the obliga­tions are entire his claim will usually fail. The origins of this rule areto found in the case of Cutter v. Powell .59 A seaman agreed to serveas a second mate on a voyage from Jamaica to Liverpool. The nor­mal rate for the return voyage was £4 per month. However, it seemsat the time that it was a most difficult task to get together a crew forthe return journey from the West Indies back to England. A sum of30 guineas was agreed upon as payable if he did his duty for the wholevoyage. He died three-quarters of the way through the voyage. Hisadministratix failed to recover wages on a pro-rata basis because thecontract was held to be indivisible. In addition, however, recovery ona quantum meruit basis for the reasonable value of the services ren­dered was not recovered. The Court construed the contract as one inwhich the seaman too~ the risk that, if he did not complete the wholejourney, he missed out on the far higher reward than would normallybe paid for such services. In other words, the overlying contract im­pliedly denied a right to restitution. The real estate broker's contractis a similar sort of contract. But, as Brennan J. pointed out in Pavey,the rule established in this case came to support a wider principle thatno quasi-contractual obligation (obligation imposed by law) ariseswhen there is a subsisting contractual obligation governing the samesubject matter. Restitution was possible if, but only if, the contractcould be brought to an end, e.g. by rescission or termination forbreach.60

We see this approach exemplified in building contracts, which, bytheir nature, will usually be entire as to the quantity of work to bedone. In Sumpter v. Hedges61, a plaintiff abandoned a contract toerect buildings on the defendant's land when about half the work wascompleted. This did not constitute substantial performance. Theplaintiff was denied recovery on a quantum meruit claim because thecourt, having found an entire contract, could find no circumstancesfrom which to infer a new obligation outside the contract. "The merefact that a defendant is in possession of what he cannot help keeping,or even has done work upon it, affords no ground for such an infer­ence."62

The rationale for the rule has been to deter a contracting partyfrom breaking a contract that had become uneconomic with the in­tent of collecting reasonable remuneration which would be at a ratehigher than that reflected in the contract price. However, the rule canapply harshly in other situations. In Sumpter the plaintiff had run out

59 (1795) 6 T.R. 320.60 See (1986-87) 162 C.L.R. 221 at 237,235 per Brennan J.61 [1898] 1 Q.D. 673.62 [1898] 1 Q.D. 673 at 676.

43'~'Restitution at Level ofSecondary Obligation

ertion of a Restitutionary Claim where a Non-restitutionaryhas been excluded by Statute for Public Policy Reasons

itutionary claim will fail if it is against public policy to enforce~ is seen in relation to such defences as resjudicata, the barring:e claims under the statute of limitations and laches, and the il­,y of the transaction. In addition, restitution will not be''ed if to do so would amount to the enforcement of a transac­':hich the law refuses to enforce. Difficult questions of construc-'an arise in determining whether a restitutionary claim will,~~e the policy of a particular statute.66

"ognition of the distinction between primary obligations and.ary remedial obligations may assist this task. The Pavey case67

tes this. There, an owner made an oral request to a licensed_I' to do work in accordance with certain plans and specifica-

t~~~The builder claimed reasonable remuneration for c~mpletion

:. ) 72 C.L.R. 386.) 72 C.L.R. 386 at 402.

,2] 1 W.L.R. 1009.:9off & Jones, Ope cit., pp.47-SI._,6) 162 C.L.R. 221.

"'ey. In Steele v. Tardianj63 the High Court stated the rationale':: rule to be the defendant's absence of choice, whether to accept" t the benefit conferred. Such absence of choice operates to

e the court from inferring a new obligation distinct from, ori~ding that, covered by the express contract which the plaintiff" y in breach) could not bring to an end without the agreement,efendant. For the plaintiffs to succeed they

,show circumstances removing their right to remuneration from the:,' conditions of the.. special contract. For, if no more appears, the factfch a contract, open and, to that extent, unperformed, excludes anyed obligation· on the part of [the defendant] to pay a fair and'nable remuneration. . .. It is not enough that the work has beenlcial to [the defendant] by turning his standing timber into the moreble form of firewood. 64

, the influence of Cutter v. Powell can be seen. The decision.on its facts, precluded the drawing of an inference to pay rea­< recompense for the work has been transformed in the later· ,a general rule of preclusion. In these cases, the injured partyariably finished the job. In Sumpter v. Hedges the owner com­,. e buildings. In Bolton v. Mahadeva65 the owner had a defec­ating unit repaired. At the point in time when the injured party~:i:he decision to finish the job, that party, by its conduct, could

to have manifested its election to terminate. The work has'))een rendered in circumstances where it was the intention of'~ ,;es that it be paid for. The basis on which payment was to be'namely completion, having been effected, or been arranged by~red party, the party in breach should be able to recover the ac­fti benefit to be ultimately received by the defendant, after tak­o account the actual costs incurred by the defendant.~

44 P.A. Butler

of the work. The owner refused to pay for lack of writing by reasonof section 45 of the Builders Licensing Act 1971 (NSW). That sectionprovides: "A contract . . . under which the holder of a license un­dertakes to carry out . . . [certain building work] . . . is not enforce­able against the other party unless the contract is in writing signed byeach of the parties ...". It was held by the New South Wales Courtof Appeal, in denying recovery, that an action in indebitatus assump­sit was one for the enforcement of an executed oral contract becausethe plaintiff had to plead and prove the special contract for buildingwork under which it claimed remuneration. By contrast, the majorityof the High Court agreed with Deane J, who held that the action forquantum meruit rested on a claim to restitution or one based on un­just enrichment, arising from the defendant's acceptance of benefitsaccruing to him from the plaintifr s performance of the oral contract.The action did not amount to direct or indirect enforcement of theoral agreement. Mason C.J. and Wilson J. held that the function ofthe agreement is to show that the benefit was not rendered gratu­itously, but on the basis that it be paid for, and that the recipient hasnot rendered the promised exchange value. According to the com­monsense view, it seems that the contract is being indirectly enforced.However, it might be said that the use of the single word "contract"in the statutory provision as distinct from, say, the words "contract,agreement or arrangement", suggests that the reference is to themodem contractual secondary remedial obligation founded on thefailure to carry out a promised performance, which redresses theplaintiff s loss therefrom, and not to the more ancient remedial obli­gation founded on the failure to pay either the agreed quidpro quo orits later equivalent in indebitatus assumpsit, which compensates theplaintiff for the benefit received by the defendant.

A similar result favouring the builder under a similar statute wasreached by the Full Court of the Supreme Court of Queensland inGino D~/essandroConstructions v. Powis68• The court drew the dis­tinction between damages to compensate loss for breach of a contrac­tual promise and the action for a debt on an executed consideration.The Full Court observed that the builder had been prevented fromfully completing the job by the owners' repudiatory conduct and ap­plied the much discussed case of Planche v. Co/burn (1831).69 Inawarding the plaintiff the value of the services provided, the courtseems to have applied the principle which precludes a wrongdoer, be­cause of his or her own wrong, from setting up the defence that thework has not been completed.

Finally, the distinction between reparation and restitution at thesecondary remedial level was recognised in the reasoning of theHouse of Lords in Universe Tankships Inc. 0/Monrovia v. Interna­tional Transport Workers Federation. 7o A statute rendered the Fed­eration immune from liability in tort (reparation) for inducing thebreaking of a contractual relationship between the ship-owners andtug operators by "blacking" a ship flying a flag of convenience.

68 [1987] 2 Qd.R. 40.69 (1831) 8 Bing. 14.70 [1983] 1 A.C. 366, 385-391 per Lord Diplock, 397 per Lord Russell concurring.

45,,ing Restitution at Level ofSecondary Obligation

:wever, the statute did not render the Federation immune from ain restitution for money which they had extracted by such du-

his paper, I have attempted to delineate the metes and bounds oflaim in restitution by focusing on the obligation as it has so farndeclared by the High Court. It has been submitted that the pref­Ie view is that the obligation is consistent with a secondary reme­obligation mediately based on unjust enrichment by subtraction

m the plaintiff. A feature which may distinguish such a claimIn restitution by a traditionally recognised wrong to the plaintiff is'requirement that there must be an exact minus-plus 'equation. Ifre must be an exact correspondence between benefit gained by theendant and countervailing detriment to the plaintiff, then it fol­s, I think, that the "major divide" of which Professor Birksaks must stand. But, whichever way the law evolves, it is impor­t to keep in mind Deane J's insistence that:

To identify the basis of such actions as restitution . . . is not to assert ajudicial discretion to do whatever idiosyncratic notions of what is fair andJust might dictate.71

:;~Unjust enrichment in Australia is at the moment no more than a·fying concept, not a general principle. It is useful to recall Lord'mpleman's words in CBS Songs Ltd v. Amstrad Consumer E/ec­nics:

,"Since Anns v. Merton London Borough Council (1978] A.C. 728 put the": floodgates on' the jar, a fashionable plaintiff alleges negligence. Thepleading assumes that we are all neighbours now, Pharisees and Samari­

,.tans alike, that forseeability is a reflection of hindsight and that for everyI mischance in an accident-prone world someone solvent must be liable inI, damages.72

" We must heed the lessons offered by the developments concerninge tort of negligence and proceed cautiously in this branch of the~W.73

,ll"i

1 Pavey's case (1986-87) 162 C.L.R. 221 at 256. And see Shell Co. ofAust. Ltd. v.. Esso Aust. Ltd. [1987] V.R. 317, 329-330, 342, 344-346 (plea of unjust enrichment_ struck out).

[1988] A.C. 1013 at 1059.3 In particular, it might be added, having regard to the recent use of the concepts of, restitution and unjust enrichment in Trident General Insurance Co Ltdv. McNiece

Bros. Pty. Ltd. (1988) 165 C.L.R. 107; see Soh, (1989) 105 L.Q.R. 4.