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'Unjustified Enrichment in Australia: Dispelling the Phantom Menace'
This paper argues that it is time for the Australian courts to accept that the general anti-enrichment principle should be conceived of in a similar way to the general principles underlying the law of contract and the law of torts.
Recent judicial doubts about seeing unjustified enrichment as anything more than a vague 'legal concept' perpetuate a fear of principle and a naïve view that anything other than case by case legal development is dangerous, display misplaced concerns that law is improperly seeking to crystallise what ought only to be viewed in broad equitable terms, and are founded upon unwarranted concerns that the anti-enrichment principle will undermine established precedent.
The paper will conclude by proposing ways in which the law might develop, considering questions which an anti-enrichment principle will have to answer, and musing on some practical ways in which the academic community might encourage the courts to accept the desirability of such an anti-enrichment principle.
(It is intended that the paper will appear, in modified form, in the 2013 edition of the Restitution Law Review)