REMEDIES LAWS5105

JORDANA SISARICH 21492514

CONTENTS

PERSONAL RESTITUTIONARY REMEDIES GAIN-BASED AWARDS FOR WRONGS………………………………………………………………….2 Account of Profits + Reasonable Fee Award FOR ………………………………………………………….…6 RECISSION…………………………………………………………………………………………………………….8

PROPRIETARY RESTITUTIONARY REMEDIES……………………………………………………………………..11 Trusts, Proprietary Powers, Liens Bryan and Bant’s propositions……………………………………………………………………………..14

COERCIVE REMEDIES ……………………………………………………………………………………..17 …………………………………………………………………………………………………………23

EXEMPLARY …………………………………………………………………………………………………....29

AGGRAVATED DAMAGES……………………………………………………………………………………………..…..32

APOLOGIES, CORRECTIONS, CORRECTIVE NOTICES……………………………………………………..…..34

PERSONAL RESTITUIONARY REMEDIES

GAIN-BASED AWARDS FOR WRONGS Operate to strip a profit, proportion of a profit or the value of a benefit from the Defendant. Gain-based awards are available in 2 forms: account of profits (disgorgement damages) and reasonable fee award (restitutionary damages). § Account of Profits: operate to strip the Defendant of his net-profit, subject to allowances and discretionary bars to relief. § Reasonable Fee Award: reflects the benefit the D has gained from using P’s property, even where P has suffered no compensable loss per say. It is irrelevant the P would not have used the property anyway.

What has P lost? + What has D acquired? § Causation? Remoteness?; Birks + Edelman suggests should apply

WHAT IS AVAILABLE FOR CAUSE OF ACTION? 1. EQUITY 1.1. Breach of duty § Account of Profits available; Warman v Dwyer Unless; Chan v Zacharia: § Unconscionable for Plaintiff to assert a liability to account on the part of the Defendant; or § No possible conflict between fiduciary and principal’s interest and it’s in principal’s interest that fiduciary obtain profits § P may not stand by why D makes the profits; Dwyer

1.2. Breach of confidence § Account of Profits available; A-G v Gaurdian Newspapers § Reasonable Fee Award available; Vercoe

2. COMMON General rule: gain-based awards for wrongs not available in CL à main exception: property torts, ie. where tort is actionable per say, ie. without proof of loss 2.1. Property Torts Where by reason of wrong done to Plaintiff, the Defendant gains use of the Plaintiff’s property, which is a saved expense of the Defendant, ie. a negative benefit- eg. trespass, conversion, detinue. Typically, where there’s been conscious wrongdoing; Olwell v Nye & Nisson; Edwards v Lee’s GOODS Reasonable Fee Award available; Olwell v Nye & Nissan § Provided P first waives the tort, because cannot have both compensatory and restitutionary remedy § Irrelevant Plaintiff suffered no loss, simply reverses benefit D received; StrandElectric & Engineering § Equipment which D detained was profit-earning, the P normally hired out the equipment in the course of its business, and during that period the D used the property for his own ends à P awarded full hiring charge for the whole period of switchboard detention; StrandElectric § P awarded reasonable value of D’s use of egg-wash machines; Olwell LAND Reasonable Fee Award available; Penarth Dock § Even where Plaintiff suffered no loss; Penarth Dock o P suffered no loss as didn’t have to pay extra rent for D’s continued use of his berth à awarded damages measured by reference to the Defendant’s saved expense of paying for berth somewhere else § Price which would be paid by a reasonable person in the Defendant’s position, ie. reasonable rental value; Hampton v BHP o Objective immediate assessment of value obtained by D, ie. at time of receipt of benefit o Irrelevant whether D subsequently obtained some actual substantial profit § Is the cost of use of the P’s property, cf. cost of sanctioning/giving permission; LIP Investment § If property has peculiar value to Defendant, restitutionary damages will reflect that value, not market value; LIP Investment o ie. where P earlier offered to allow D’s use at discounted rate; Bunnings v Chep Account of Profits available; Edwards v Lees à but no Aus cases § Measure of recovery is net profits received by Defendant from use of Plaintiff’s land

2.2. Deceit Account of Profits NOT available; Halifax (accepted in Aus) § Court held no universally applicable principle that in every case there will be restitution of a benefit from a wrong § P elected to affirm mortgage, enforce mortgage/power of sale and recovered sufficient proceeds to discharge debt owed by D, not entitled to surplus (gain-based award) because suffered no loss § this case does not answer question of whether reasonable fee award is available Reasonable Fee Award NOT available for non-property torts; Halifax Building Society

2.3. Inducing breach of contract Account of Profits NOT available; Hospitality Group § Because Plaintiff cannot claim a windfall to prevent a wrongdoer profiting from his wrong Reasonable Fee Award NOT available for non-property torts; Halifax Building Society

2.4. Breach of contract Reasonable Fee Award NOT available in Aus; Cf. Wrotham Park Estate (UK) § Courts generally unwilling to award reasonable fee for breach of contract Account of Profits NOT available in Aus; Hospitality Group; Cf. A-G v Blake (UK) § Because injunction or compensatory damages will provide , account of profits would result in windfall to P; Hospitality Group

3. STATUTE 3.1. Intellectual Property Statutes Legislation that protects IP rights provides for particular remedies, including account of profits § Copyright Act 1968 (Cth), s 115(2) § Patents Act 1990 (Cth), s 122(1) § Trade Marks Act 1995 (Cth), s 126 § Designs Act 1906 (Cth), s 32B(1) Only claim account of profits over profits derived from period where D knowingly infringed; Colbeam Can also be protected by CL, eg. CL action for tort of passing off or the equitable action for breach of contract- account of profits also available for these 3.2. ACL ACL is compensatory in purpose, but courts have taken wide view of “damage” in s 236(b), so some scope for recovering restitutionary award under the Act where P suffered loss s 237(2)- any order must be an order the court considers will” (a) Compensate the injured person, or any such injured persons, in whole or in part for the loss/damage; or (b) Prevent or reduce the loss/damage