
Contents
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1. The Essence of Restitution for Wrongs 1. The Essence of Restitution for Wrongs
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(A) The Relationship between Restitution for Wrongs and the Reversal of Unjust Enrichment (A) The Relationship between Restitution for Wrongs and the Reversal of Unjust Enrichment
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(i) Proof of a Cause of Action Involving Wrongdoing (i) Proof of a Cause of Action Involving Wrongdoing
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(ii) The Wrong Triggers Gain-Based Remedies (ii) The Wrong Triggers Gain-Based Remedies
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(iii) The Defendant Obtained a Benefit (iii) The Defendant Obtained a Benefit
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(B) Advantages of Treating Restitution for Wrongs as not Founded on Unjust Enrichment (B) Advantages of Treating Restitution for Wrongs as not Founded on Unjust Enrichment
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(C) Alternative Analysis (C) Alternative Analysis
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(D) The Relationship between Restitution for Wrongs and Proprietary Restitutionary Claims (D) The Relationship between Restitution for Wrongs and Proprietary Restitutionary Claims
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(E) Does Restitution for Wrongs Properly form Part of the Law of Restitution? (E) Does Restitution for Wrongs Properly form Part of the Law of Restitution?
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(i) Restitution and Disgorgement (i) Restitution and Disgorgement
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(ii) Compensation or Gain-Based Remedy? (ii) Compensation or Gain-Based Remedy?
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(iii) Different Senses of Restitution (iii) Different Senses of Restitution
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2. The Principles Underlying the Award of Restitutionary Remedies for Wrongs 2. The Principles Underlying the Award of Restitutionary Remedies for Wrongs
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(A) The Fundamental Principles (A) The Fundamental Principles
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(B) Determining which Wrongs will Trigger a Gain-Based Response (B) Determining which Wrongs will Trigger a Gain-Based Response
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(i) Interference with Property Rights (i) Interference with Property Rights
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(ii) Deterrence and Ethical Standards (ii) Deterrence and Ethical Standards
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(1) Abuse of a Relationship of Trust and Confidence (1) Abuse of a Relationship of Trust and Confidence
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(2) Illegal Conduct (2) Illegal Conduct
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(3) The Defendant’s Culpability (3) The Defendant’s Culpability
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(iii) Inadequacy of Compensatory Remedies (iii) Inadequacy of Compensatory Remedies
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3. Gain-Based Remedies for Wrongdoing 3. Gain-Based Remedies for Wrongdoing
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(A) Money had and Received (A) Money had and Received
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(B) Account of Profits (B) Account of Profits
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(C) Restitutionary Damages (C) Restitutionary Damages
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(i) The Nature of Restitutionary Damages (i) The Nature of Restitutionary Damages
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(ii) Are ‘Restitutionary Damages’ Really Restitutionary? (ii) Are ‘Restitutionary Damages’ Really Restitutionary?
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(D) Exemplary Damages (D) Exemplary Damages
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(E) Constructive Trust (E) Constructive Trust
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(F) Restoration of Property (F) Restoration of Property
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(G) Rescission (G) Rescission
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(H) Injunction (H) Injunction
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4. Causation and Remoteness 4. Causation and Remoteness
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(A) The General Principle of Causation (A) The General Principle of Causation
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(B) Assessing the Defendant’s Contribution (B) Assessing the Defendant’s Contribution
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(C) The Principle of Remoteness of Gain (C) The Principle of Remoteness of Gain
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(D) More than One Victim (D) More than One Victim
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5. The Relationship between Gain-Based and Compensatory Remedies for Wrongdoing 5. The Relationship between Gain-Based and Compensatory Remedies for Wrongdoing
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(A) Election between Inconsistent Remedies (A) Election between Inconsistent Remedies
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(B) When must the Election be Made? (B) When must the Election be Made?
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(C) Tang Man Sit v Capacious Investments Ltd (C) Tang Man Sit v Capacious Investments Ltd
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(D) Determining when Compensatory and Gain-Based Remedies are Inconsistent (D) Determining when Compensatory and Gain-Based Remedies are Inconsistent
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(E) Inadequacy of Compensatory Damages (E) Inadequacy of Compensatory Damages
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6. Defences 6. Defences
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(A) Claim Founded on the Defendant’s Wrongdoing (A) Claim Founded on the Defendant’s Wrongdoing
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(B) General Defences to Restitutionary Claims (B) General Defences to Restitutionary Claims
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(C) Claim Founded on the Reversal of the Defendant’s Unjust Enrichment (C) Claim Founded on the Reversal of the Defendant’s Unjust Enrichment
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Cite
Abstract
This chapter considers the general principles relating to the award of restitutionary remedies where the cause of action is a wrong. It considers the relationship between this group of claims and the Law of Unjust Enrichment and proprietary restitutionary claims. The principles underpinning the award of gain-based remedies for wrongs are considered, as are the principles which are relevant to the identification of the wrongs for which gain-based remedies are available. The appropriate characterization of negotiation damages is considered. The range of gain-based remedies for wrongs is identified, including money had and received, account of profits, and restitutionary damages. The various tests of causation and remoteness are identified. The relationship between gain-based remedies and compensatory remedies is considered, along with the principle of election and the principle of compensatory damages being inadequate.
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