Contents. Foreword by Professor Andrew Robertson Preface xvii Table of cases xix Table of statutes lvi

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1 Contents Foreword by Professor Andrew Robertson Preface xvii Table of cases xix Table of statutes lvi v I Introduction 1 I Why have a book on remedies? 1 II What is a remedy? 2 A Monism and dualism 4 B Sources of remedies in Australia 5 C Other ways of organising private law causes of action the unjust enrichment school of thought 6 III The common law and equity divide in Australia 8 A Fusion fallacy 8 B Unjust enrichment scholars breaking down the common law and equitable divide 10 C Australian reception of unjust enrichment scholarship 10 D The position of the authors 12 IV A functional approach to remedies 12 A Parts 1 and 2: Compensation 14 B Part 3: Remedies compelling performance and related remedies 15 C Part 4: Remedies as vindication 15 D Part 5: Account of profits and other gain-based relief for wrongs 16 E Part 6: Restitution and giving back 17 F Part 7: Proprietary remedies 17 G Part 8: Enforcement of remedies 18 H Conclusion 18 PART 1 GENERAL PRINCIPLES OF COMPENSATION 19 2 Assessment of compensation 21 I Introduction 21 II The compensatory principle and the identification of the wrong 21 III Losses and benefits 23 A Non-pecuniary loss 23 B Cost of repair and diminution in value 24 C Betterment discount 25 vii

2 viii D Benefits arising from the wrong 28 E The impact of tax law 29 IV Certainty of loss and recovery for the loss of a chance 32 V Temporal considerations 39 A The lump sum rule and the once and for all rule 39 B Date of assessment 41 C Relevance of inflation 46 D Determining the present equivalent of future pecuniary loss 46 E Interest on compensation awards and compensation for the loss of the use of money 48 3 Attribution of responsibility 53 I Introduction 53 II The legal concept of causation 54 III Factual causation 57 A The but for test and its application 57 1 The but for test 57 2 Overtaking cause 58 3 Alternative cause 59 B Factual causation even though the but for test is not satisfied 61 1 Multiple sufficient causes 61 2 Evidential uncertainty 64 IV Scope of liability 69 A Intervening cause 69 B Remoteness of damage 76 C The purpose of the duty breached 77 D The plaintiff s contribution to the loss 78 1 Overview of the three relevant doctrines 78 2 Contributory negligence 80 3 Mitigation 80 4 Multiple wrongdoers 84 I Introduction 84 II Common law rules 85 III Contribution statutes 88 IV Proportionate liability statutes 92 V Interplay of the three regimes 97 PART 2 COMPENSATION IN SPECIFIC CONTEXTS 99 5 Compensation for breach of contract 101 I Assessment of compensation 101 A Protection of the plaintiff s expectation interest 101 B Measure of expectation loss in particular contexts Failure to deliver goods as promised Failure to convey land as promised Breach of an obligation to build, maintain or repair property 108 C Compensation of reliance loss 112

3 ix D Non-pecuniary loss Restrictions at common law Restrictions under statute 119 E Damages awards exceeding loss 120 II Attribution of responsibility 122 A Remoteness of damage The Hadley v Baxendale test The significance of the defendant s knowledge of the plaintiff s circumstances Assumption of responsibility as overriding criterion? 125 B Contributory negligence Compensation in tort 131 I Assessment of compensation 131 A General principle 131 B Specific contexts Damage to reputation: defamation Damage to land orfixtures Other wrongful interference with land Damage to goods Other wrongful interference with goods Defective premises or goods Damage to economic interests: reliance on a misrepresentation 144 II Attribution of responsibility 145 A Remoteness of damage The test of natural and probable consequences The test of reasonable foreseeability The test of reasonable contemplation The eggshell skull rule 152 B Contributory negligence Common law Contributory negligence statutes Civil liability statutes The plaintiff s conduct Causation and scope of the duty Apportionable loss Apportionment Compensation for personal injury and death 162 I Introduction 162 II The impact of legislation 162 A Statutory compensation schemes 162 B Civil liability statutes 164 III Meaning of personal injury 165 IV Loss suffered by an injured person 167 A Pecuniary loss resulting from needs created by the injury 167

4 x 1 Medical expenses and cost of institutional care Cost of nursing and other services provided to the injured person at home Increased cost of living at home Cost of managing compensation award 170 B Pecuniary loss resulting from the impairment of capacities Loss of earning capacity Loss of employment-related benefits Loss of social security benefits Loss of capacity to do domestic work 175 C Non-pecuniary loss Pain and suffering Loss of amenities Loss of expectation of life Statutory regulation 177 D Overlap between different heads of loss 179 V Benefits arising from an injury 179 VI Claims based on injury to another person 181 A Loss of an employee s services 181 B Loss of consortium 183 VII Actions on death 184 A Claim by the estate of the deceased 184 B Claim by the dependants of the deceased Compensation under the Australian Consumer Law 193 I Introduction 193 II Assessment of compensation 195 A General principles 195 B Compensation for misleading or deceptive conduct Reliance loss as the general measure of compensation Compensation of expectation loss Compensation of reliance loss in excess of expectation loss 198 C Non-pecuniary loss 199 D Certainty of loss and recovery for the loss of a chance 200 III Attribution of responsibility 200 A The common-sense test of causation 200 B Factual causation 201 C Scope of liability Intervening cause Remoteness of damage The purpose of the provision contravened The plaintiff s contribution to the loss 204 D Multiple wrongdoers Equitable compensation for equitable wrongs 206 I Introduction 206 II Assessment of equitable compensation 208

5 xi A Object of equitable compensation 208 B Recoverability of non-pecuniary loss 209 C Basic measure of equitable compensation 210 III Attribution of responsibility 211 A Factual causation Misapplication of trust property Breach offiduciary duty 214 B Intervening acts and remoteness of loss Breach of trust Breach offiduciary duty Breach of an equitable duty of care 221 C Contributory negligence Breach of fiduciary duty Breach of an equitable duty of care 225 D Mitigation 226 PART 3 REMEDIES COMPELLING PERFORMANCE AND RELATED REMEDIES Specific performance 229 I Introduction 229 II The nature of specific performance 230 III The relationship between specific performance and injunctions 232 IV Inadequacy of damages and subject matter of the contract 233 A Inadequacy of damages 233 B Subject matter of contract Contracts involving land Contracts involving goods Contracts involving shares and stock Contracts to loan money Contracts for the benefit of third parties Contracts involving intellectual property Contracts for services 241 V Other requirements for specific performance 242 A Personal remedy 242 B Binding contract Consideration Uncertainty Illegality Impossibility and futility 246 VI Discretionary factors and bars to relief 247 A General equitable bars to relief Hardship and the public interest Lack of clean hands Laches: delay with acquiescence and delay with prejudice 250 B Bars to relief relevant only to specific performance 251

6 xii 1 Mutuality Continuous supervision and personal services Readiness and willingness 255 VII Specific performance under the Australian Consumer Law Injunctions 257 I Introduction 257 II The rights protected by injunctions and inadequacy of damages 259 A Inadequacy of damages 260 B The rights protected by injunctions Injury to property rights in land Injury to property rights in goods and funds of money Injury to intellectual property Injury to economic rights Injury to bodily integrity Injury to reputation Injury to privacy Injunctions restraining breaches of negative covenant in a contract Contracts for services 267 III Quia timet injunctions 269 IV Discretionary factors and bars to relief 270 A General equitable bars to relief Hardship and the public interest Lack of clean hands Laches: delay with acquiescence and delay with prejudice 272 B Bars to injunctions that are equivalent to those in specific performance 272 V Injunctions under statutes 272 A Intellectual property 273 B The Australian Consumer Law 273 C The Corporations Act 2001 (Cth) 274 D Other statutory injunctions Equitable damages or Lord Cairns Act damages 275 I History 275 II Advantages of Lord Cairns Act damages for a plaintiff 276 III Jurisdiction to award Lord Cairns Act damages 278 IV The need for a wrongful act in some Australian jurisdictions 279 A Australian legislation which does not mention wrongful act 280 B Australian legislation which mentions wrongful act 280 C Lord Cairns Act damages for statutory wrongdoing 281 V Factors influencing the exercise of the jurisdiction 281 A Generally Lord Cairns Act damages as a middle ground 281 B The Shelfer criteria 283 VI The basis of assessment 284

7 xiii A General principles 284 B Gain-based relief reasonable fee awards 285 C Loss-based relief compensatory awards of various kinds Future wrongdoing Causes of action where compensatory damages ordinarily unavailable In addition to specific relief 287 VII Discretionary bars to relief 287 VIII Part 9.5, Corporations Act 2001 (Cth) 288 IX The future of Lord Cairns Act damages 288 PART 4 REMEDIES AS VINDICATION Self-help remedies 293 I Introduction 293 II Tort and self-help 294 A Eviction of trespassers and protection of land and goods from trespass 294 B Self-defence of property 296 C Self-defence of the person 298 D Recaption, replevin and specific restitution 298 E Abatement of nuisance 301 III Contract and self-help 302 A Rescission 303 B Liquidated damages and penalties 303 C Debt 307 D Other stipulated contractual remedies Exemplary damages and aggravated damages 310 I Introduction 310 II Exemplary damages 310 A The nature and history of exemplary damages in Australia Need to make out the host cause of action Unavailable if criminal punishment already imposed Calculation of exemplary damages 315 B The causes of action for which exemplary damages can be awarded in Australia Exemplary damages available for tort Exemplary damages available for breach of some statutes Exemplary damages not available for breach of contract Exemplary damages not available for equitable wrongdoing Exemplary damages not available for breaches of Australian Consumer Law 324 C Normative objections to exemplary damages generally 324 D Conclusion on exemplary damages 325 III Aggravated damages 326 A The distinction between exemplary damages and aggravated damages 326

8 xiv B Availability of aggravated damages in Australian law Aggravated damages available for tort Aggravated damages available for some statutory causes of action Aggravated damages not available for contract Aggravated damages not available for equitable wrongdoing Aggravated damages available for Australian Consumer Law Apologies and declaratory relief 332 I Apologies, declarations and nominal damages 332 A Apologies 332 B Declarations, nominal damages and contemptuous damages Declarations Nominal damages Contemptuous damages 340 II Other vindicatory remedies under Australian Consumer Law 341 PART 5 ACCOUNT OF PROFITS AND OTHER GAIN-BASED RELIEF FOR WRONGS Disgorgement of gains and reasonable fee damages 345 I The distinction between compensation, restitution and disgorgement and the nature of gain-based remedies 346 A Compensation 346 B Restitution 346 C Disgorgement 347 D Gain-based remedies 347 II Disgorgement 348 A Equity and the account of profits 348 B Election 350 C Intellectual property and the account of profits 351 D Torts and waiver of tort 353 E Breach of contract 355 F Australian Consumer Law 359 III Reasonable fee damages 359 A Introduction and history Academic accounts The approach of the courts 363 B Equity 363 C Intellectual property 364 D Tort Torts protecting proprietary rights in land Torts protecting proprietary rights in goods Other torts 368 C Contract 368 IV Allowances, discretionary factors and bars to relief 370 A Allowances for skill and effort 371

9 xv 1 Allowances for skill and effort for breach offiduciary duty Allowances for skill and effort for intellectual property breaches Allowances for skill and effort and disgorgement in contract 373 B Discretionary factors and bars to relief Hardship Lack of clean hands Delay and acquiescence 375 V The future of gain-based relief in Australia 376 PART 6 RESTITUTION AND GIVING BACK Personal remedies for unjust enrichment 381 I Introduction 381 II The elements of unjust enrichment 384 III Precise remedies for unjust enrichment 385 A Money claims 385 B Services claims 386 C Goods claims 387 IV Defences to a claim in unjust enrichment 387 V The relationship between contract and restitution for unjust enrichment Rescission 392 I Introduction 392 A Legal rescission 394 B Equitable rescission 395 C Rescission under the Australian Consumer Law 396 II The requirement of restitutio in integrum 397 III Election 400 A How to make an election to rescind 400 B The consequences of an election to rescind 402 C The reasons behind the election requirement 404 IV Partial rescission 404 V Bars to rescission 407 A Impossibility of complete restoration 407 B Affirmation 408 C Delay 409 D Intervening third party rights 409 E Executed contracts and innocent misrepresentation 411 PART 7 PROPRIETARY REMEDIES Proprietary remedies 415 I Introduction 415 II Proprietary remedies 416 A Constructive and resulting trusts 416 B Proprietary powers 419 C Equitable liens 420

10 xvi III Criteria for award of proprietary remedies 421 A Proprietary remedies and unconscionability 422 B Proprietary remedies and unjust enrichment 424 C Proprietary remedies and wrongdoing 428 IV Discretionary factors and bars to relief 431 V The need for more defined criteria 431 PART 8 ENFORCEMENT OF REMEDIES Enforcement of remedies 435 I Introduction 435 II Interlocutory injunctions 436 A A legal, equitable or statutory right 437 B A serious question to be tried (or a prima facie case ) 437 C The balance of convenience Likelihood of success Irreparable injury, hardship and inadequacy of damages to the plaintiff Hardship to the defendant and third parties Adequacy of undertaking as to damages for the defendant Delay on the part of the plaintiff Example of the balancing process 442 D Mandatory interlocutory injunctions 443 E Quia timet interlocutory injunctions 443 F Interlocutory injunctions whichfinally determine the matter 444 G Undertakings as to damages 444 H Interim injunctions under statute 445 III Other pre-judgment remedies 446 A Arrest of the person 446 B Freezing orders (Mareva orders) 447 C Search orders (Anton Piller orders) 449 IV Post-judgment enforcement 450 A Enforcement of money remedies Historical background Current Australian law 451 B Enforcement of specific remedies Enforcement against property Coercive enforcement: imprisonment, sequestration and fines 455 Index 457

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