Katy Barnett

Disgorgement of Profits in Australian Private Law

This chapter discusses the availability of remedies effecting disgorgement of profit in Australian private law. It is noted that there are three main remedies which may effect disgorgement of profits: the account of profits, the constructive trust and restitutionary remedies. However, disgorgement of profit in Australian is generally only available for causes of action where equity allowed such a remedy prior to the English Judicature Acts of the nineteenth Century. In the exclusive jurisdiction, such remedies were available for breach of fiduciary duty, breach of trust, breach of confidence, and in the auxiliary jurisdiction, they were available for intellectual property breaches. The rationale of these awards is to deter breaches and to reverse unjust enrichment. Disgorgement of profit is not generally readily available for causes of action with a common law background including breach of contract and tort. Nor is it available for statutory breaches such as consumer law and competition law.

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, it 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 and practitioners to develop an overarching conception of remedial law and thereby enhance their capacity to analyse legal problems and find the best solutions.