For a comprehensive and readily understandable critique and explanation of the current law of restitution in Australia, I recommend starting with this article (found on the internet). Professor Burrows deals with the basics as well as a synopsis and commentary of the three most recent significant High Court Decisions:Roxborough v Rothmans of Pall Mall Ltd (2001) 208 CLR 516, Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22, and Lumbers v W Cook Builders Pty Ltd [2008] HCA 27.
While Professor Burrows ultimately agrees that the decisions were correctly decided, he laments the backwards direction in which Australian restitution law is heading:
‘But whether focusing on the wrong relationship or not, the disappointment
here about the joint judgment [in Lumbers] is its apparent desire to take the Australian law of
restitution back into the old world of the forms of action. So it was thought to be of
central importance that the sub-contractor could not bring itself within the traditional
pleading that the claim was for work and labour done for and at the request of the
defendant, ie the owner. That old form of pleading was thought superior to the three-
stage analysis into benefit, at the expense of, and unconscionable retention without
payment. That analysis was itself now described as dangerous ‘top-down reasoning’
which created a risk of incoherence with other branches of the law, namely here the
contract governing the relationship between the head-contractor and the owner. And
it was again said that in Australia, unjust enrichment is a legal concept and not a
principle for direct application in particular cases.’
For another very helpful critique on modern Australian resitution law, I also recommend Lee Aitken’s article, Unforgiven: Some thoughts on Farah Constructions Pty Ltd v Say-Dee Pty Ltd, (2007) 29 Aust Bar Rev 195 which (obviously) focusses on the Farah v Say-dee decision.
MyLearnedFriends 
Posted on June 11, 2011
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