The Receipt of What?: Questions Concerning Third Party Recipient Liability in Equity and Unjust Enrichment

Abstract

[This article argues that equitable recipient liability should not be displaced by a strict liability claim in unjust enrichment. Furthermore, recent judicial and academic suggestions to the contrary fail to engage in a proper analysis of the requisite elements of either claim. In particular, the questions of whether there has been a ‘receipt’ of trust property and whether proprietary relief is available have been glossed over. To demonstrate the complexity and confusion surrounding both the equitable and unjust enrichment claims the article considers (against the backdrop of proprietary claims reliant on the priority/tracing rules) the application of equitable recipient liability and unjust enrichment theory to a simple fact scenario and then more complex variations. It is argued on doctrinal and policy grounds that equitable fault-based liability best reconciles the competing claims of the beneficiary of a trust or fiduciary relationship, and the third party recipient of trust property. The High Court of Australia, in its recent decision of Farah Constructions Pty Ltd v Say-Dee Pty Ltd, reached similar conclusions on a number of key points.]

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