Unjust enrichment versus equitable principles in England and Australia

In this chapter I contrast the different approaches of the High Court of Australia and of the House of Lords (and Privy Council) in relation to that controversial concept, unjust enrichment. In particular, I will compare the treatment of unjust enrichment with the differing approaches of the courts in relation to equitable concepts, such as unconscionable conduct, and equity's capacity flexibly to shape remedy. In the context of equity, there are discernible though more subtle differences between the views of the High Court and the House of Lords. At first blush, the contrasting judicial positions that I will describe, although not polar opposites, are at least significantly at odds. In part, this is a consequence of highlighting some of the rhetoric contained in judgments in isolation from the decisions themselves. Although the differences of substance between the courts are not as stark as some of the rhetoric might suggest, nonetheless, such differences also exist, at least as a result of decisions in the last 15 years or so. I will seek to give some tentative reasons for why the different positions have developed. This interesting exercise may raise more questions than will be answered.