Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information

Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information Remedies in Australian Private Law Remedies in Australian Private Law offers a clear, logical and complete treatment of remedies in common law, equity and statute. Designed in response to the rapid expansion of interest in this field of law, this book provides readers with a theoretical and practical framework for understanding the principles of private law remedies and how they are applied. Clearly structured with a strong black-letter law focus, this book includes detailed coverage of remedies for tort, breach of contract, the Australian Consumer Law and equitable obligations. It also includes discussion of theoretical perspectives on issues such as the fusion of common law and equity, the nature of reasonable fee awards and the concept of unjust enrichment. The systematic and accessible approach set out in this book will enable students, practitioners and others to develop an overarching conception of remedial law, and thereby enhance their capacity to analyse legal problems and find the best solutions. Katy Barnett is Senior Lecturer in the Melbourne Law School, the University of Melbourne. Sirko Harder is Senior Lecturer in the Faculty of Law, Monash University. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information Remedies in Australian Private Law Katy Barnett and Sirko Harder © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107610835 © Cambridge University Press 2014 This publication is copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 (version 3, September 2016) Cover designed by Kerry Cooke, eggplant communications Typeset by Integra Software Services Pvt. Ltd Printed in Australia by Ligare Pty Ltd, August 2016 A catalogue record for this publication is available from the British Library A Cataloguing-in-Publication entry is available from the catalogue of the National Library of Australia at www.nla.gov.au ISBN 978-1-107-61083-5 Paperback Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information Foreword The law of civil remedies is a fascinating subject. More than any other field of study in the core curriculum, it lays bare fundamental questions as to the nature and purpose of the law of obligations. The law of remedies defines what it means to have particular private law rights and to owe particular private law duties. Difficult issues concerning remedies necessarily direct attention to questions as to what precisely is to be rem- edied, why particular obligations are imposed, and the nature of the interests protected by different private law causes of action. The law of remedies is also an immensely practical subject. Remedies are, after all, the ends of civil litigation. The principles that govern their application are in many cases simple to state in the abstract but give rise to great difficulty in their application to particular fact situations. The finer points of the law of remedies are therefore not only matters of great theoretical interest and intense academic debate, but also of great day-to-day importance for legal practitioners. For all of these reasons, the publication of this substantial new book on the Australian law of civil remedies is an exciting event. It is the more so since Remedies in Australian Private Law has been written by two up-and-coming remedies scholars who have recently published monographs offering insightful analyses of particular aspects of the field. Sirko Harder is the author of Measuring Damages in the Law of Obligations: The Search for Harmonised Principles (Hart Publishing, 2010), and Katy Barnett is the author of Accounting for Profit for Breach of Contract: Theory and Practice (Hart Publishing, 2012). Readers of their new jointly authored book are offered new perspectives on the nature of the subject and new ways of approaching the many thorny issues that make it so challenging. Dr Barnett and Dr Harder adopt a functional approach to the law of remedies. They begin their study with those remedies that compensate for breach of private law duties, moving to those that compel performance of private law duties, then to those that seek to deter breaches, then those that vindicate rights, and then those that require restitution of unjust gains, dealing finally with proprietary remedies and the enforcement of remedies. Their approach brings different causes of action, different categories of obligation and different subject areas together in productive and interesting ways. Substantial parts of the book are necessarily devoted to the treatment of particular remedies in particular contexts, and the authors navigate these discrete topics as deftly as they do the general principles. Remedies in Australian Private Law provides an admirably clear and concise analysis of the law of civil remedies in Australia. The authors’ deep learning on the law of remedies is evident in many areas. They are able to provide clear v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information vi FOREWORD guidance in relation to complex topics, valuable insights into the nature of particular remedies and particular remedial issues and incisive critical comment where appropriate. The result is an instructive and thought-provoking treatment of this complexandimportantareaoflaw. Andrew Robertson Melbourne Law School © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information Contents Foreword by Professor Andrew Robertson v Preface xvii Table of cases xix Table of statutes lvi 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 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-61083-5 — Remedies in Australian Private Law Katy Barnett , Sirko Harder Frontmatter More Information viii CONTENTS 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

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