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
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 103 1 Failure to deliver goods as promised 104 2 Failure to convey land as promised 107 3 Breach of an obligation to build, maintain or repair property 108 C Compensation of reliance loss 112
ix D Non-pecuniary loss 116 1 Restrictions at common law 116 2 Restrictions under statute 119 E Damages awards exceeding loss 120 II Attribution of responsibility 122 A Remoteness of damage 122 1 The Hadley v Baxendale test 122 2 The significance of the defendant s knowledge of the plaintiff s circumstances 124 3 Assumption of responsibility as overriding criterion? 125 B Contributory negligence 127 6 Compensation in tort 131 I Assessment of compensation 131 A General principle 131 B Specific contexts 131 1 Damage to reputation: defamation 132 2 Damage to land orfixtures 134 3 Other wrongful interference with land 136 4 Damage to goods 137 5 Other wrongful interference with goods 139 6 Defective premises or goods 141 7 Damage to economic interests: reliance on a misrepresentation 144 II Attribution of responsibility 145 A Remoteness of damage 145 1 The test of natural and probable consequences 145 2 The test of reasonable foreseeability 147 3 The test of reasonable contemplation 151 4 The eggshell skull rule 152 B Contributory negligence 154 1 Common law 154 2 Contributory negligence statutes 155 3 Civil liability statutes 155 4 The plaintiff s conduct 156 5 Causation and scope of the duty 158 6 Apportionable loss 159 7 Apportionment 159 7 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
x 1 Medical expenses and cost of institutional care 167 2 Cost of nursing and other services provided to the injured person at home 168 3 Increased cost of living at home 170 4 Cost of managing compensation award 170 B Pecuniary loss resulting from the impairment of capacities 171 1 Loss of earning capacity 171 2 Loss of employment-related benefits 174 3 Loss of social security benefits 174 4 Loss of capacity to do domestic work 175 C Non-pecuniary loss 176 1 Pain and suffering 176 2 Loss of amenities 177 3 Loss of expectation of life 177 4 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 186 8 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 196 1 Reliance loss as the general measure of compensation 196 2 Compensation of expectation loss 197 3 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 202 1 Intervening cause 202 2 Remoteness of damage 203 3 The purpose of the provision contravened 203 4 The plaintiff s contribution to the loss 204 D Multiple wrongdoers 205 9 Equitable compensation for equitable wrongs 206 I Introduction 206 II Assessment of equitable compensation 208
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 211 1 Misapplication of trust property 211 2 Breach offiduciary duty 214 B Intervening acts and remoteness of loss 218 1 Breach of trust 218 2 Breach offiduciary duty 219 3 Breach of an equitable duty of care 221 C Contributory negligence 223 1 Breach of fiduciary duty 223 2 Breach of an equitable duty of care 225 D Mitigation 226 PART 3 REMEDIES COMPELLING PERFORMANCE AND RELATED REMEDIES 227 10 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 236 1 Contracts involving land 236 2 Contracts involving goods 238 3 Contracts involving shares and stock 239 4 Contracts to loan money 239 5 Contracts for the benefit of third parties 240 6 Contracts involving intellectual property 241 7 Contracts for services 241 V Other requirements for specific performance 242 A Personal remedy 242 B Binding contract 243 1 Consideration 243 2 Uncertainty 244 3 Illegality 245 4 Impossibility and futility 246 VI Discretionary factors and bars to relief 247 A General equitable bars to relief 248 1 Hardship and the public interest 248 2 Lack of clean hands 249 3 Laches: delay with acquiescence and delay with prejudice 250 B Bars to relief relevant only to specific performance 251
xii 1 Mutuality 251 2 Continuous supervision and personal services 253 3 Readiness and willingness 255 VII Specific performance under the Australian Consumer Law 255 11 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 261 1 Injury to property rights in land 261 2 Injury to property rights in goods and funds of money 262 3 Injury to intellectual property 263 4 Injury to economic rights 263 5 Injury to bodily integrity 265 6 Injury to reputation 265 7 Injury to privacy 266 8 Injunctions restraining breaches of negative covenant in a contract 266 9 Contracts for services 267 III Quia timet injunctions 269 IV Discretionary factors and bars to relief 270 A General equitable bars to relief 270 1 Hardship and the public interest 270 2 Lack of clean hands 271 3 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 274 12 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
xiii A General principles 284 B Gain-based relief reasonable fee awards 285 C Loss-based relief compensatory awards of various kinds 286 1 Future wrongdoing 286 2 Causes of action where compensatory damages ordinarily unavailable 286 3 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 291 13 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 308 14 Exemplary damages and aggravated damages 310 I Introduction 310 II Exemplary damages 310 A The nature and history of exemplary damages in Australia 310 1 Need to make out the host cause of action 313 2 Unavailable if criminal punishment already imposed 314 3 Calculation of exemplary damages 315 B The causes of action for which exemplary damages can be awarded in Australia 316 1 Exemplary damages available for tort 316 2 Exemplary damages available for breach of some statutes 318 3 Exemplary damages not available for breach of contract 319 4 Exemplary damages not available for equitable wrongdoing 322 5 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
xiv B Availability of aggravated damages in Australian law 328 1 Aggravated damages available for tort 328 2 Aggravated damages available for some statutory causes of action 329 3 Aggravated damages not available for contract 330 4 Aggravated damages not available for equitable wrongdoing 330 5 Aggravated damages available for Australian Consumer Law 330 15 Apologies and declaratory relief 332 I Apologies, declarations and nominal damages 332 A Apologies 332 B Declarations, nominal damages and contemptuous damages 335 1 Declarations 335 2 Nominal damages 339 3 Contemptuous damages 340 II Other vindicatory remedies under Australian Consumer Law 341 PART 5 ACCOUNT OF PROFITS AND OTHER GAIN-BASED RELIEF FOR WRONGS 343 16 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 359 1 Academic accounts 360 2 The approach of the courts 363 B Equity 363 C Intellectual property 364 D Tort 365 1 Torts protecting proprietary rights in land 365 2 Torts protecting proprietary rights in goods 366 3 Other torts 368 C Contract 368 IV Allowances, discretionary factors and bars to relief 370 A Allowances for skill and effort 371
xv 1 Allowances for skill and effort for breach offiduciary duty 371 2 Allowances for skill and effort for intellectual property breaches 372 3 Allowances for skill and effort and disgorgement in contract 373 B Discretionary factors and bars to relief 374 1 Hardship 374 2 Lack of clean hands 374 3 Delay and acquiescence 375 V The future of gain-based relief in Australia 376 PART 6 RESTITUTION AND GIVING BACK 379 17 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 388 18 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 413 19 Proprietary remedies 415 I Introduction 415 II Proprietary remedies 416 A Constructive and resulting trusts 416 B Proprietary powers 419 C Equitable liens 420
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 433 20 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 439 1 Likelihood of success 440 2 Irreparable injury, hardship and inadequacy of damages to the plaintiff 440 3 Hardship to the defendant and third parties 441 4 Adequacy of undertaking as to damages for the defendant 442 5 Delay on the part of the plaintiff 442 6 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 451 1 Historical background 451 2 Current Australian law 451 B Enforcement of specific remedies 454 1 Enforcement against property 455 2 Coercive enforcement: imprisonment, sequestration and fines 455 Index 457