Lloyd's Maritime and Commercial Law Quarterly


Kit Barker* and Anna Kretowicz


This year’s analysis (spanning September 2022 to September 2023) references only two High Court cases. A third, Redland City Council v Kozik [2024] HCA 7, was decided in March, 2024 and will therefore be reported fully next year. The first decision, Bosanac (§18), is ironically not a case of unjust enrichment at all on current thinking, relating as it does to the presumed purchase monies resulting trust. Both UK and Australian courts currently understand such trusts to be the product of party intentions, not the failure thereof. We include it partly because some writers (Birks, Chambers) have historically regarded such trusts as falling within the unjust enrichment rubric, and partly because the joint judgment of Gordon and Edelman JJ references other types of resulting trust that may less controversially do so. The decision is also clearly important in its own right, engaging as it does in a root-and-branch overhaul of the respective “presumptions” of resulting trust and advancement. It goes about as far as one could to effect change without slipping on one’s legislative shoes. Both “presumptions” are stated to be no more than fillers, to be used only where objective evidence as to actual party intentions is entirely lacking, which is likely, as observed by one commentator (H Cooney [2023] LMCLQ 28), significantly to reduce their practical import. The “presumption” of advancement is not a presumption at all, and both “presumptions” supply only weak inferences about party intentions. They are also out of date, if not actually anachronistic. Each of the judgments has a refreshing, forward-looking feel and shows sensitivity to the realities of property transactions in the context of modern domestic relationships, as well as an intelligent consciousness of the limits of the judicial role in reforming long-standing rules.
The other two cases—Hornsby (§29) and Kozik—point to an elephant that has long been lingering impatiently in the room, namely the question whether, in Australia, public bodies are strictly liable to make restitution of payments demanded ultra vires. Kozik, the facts of which were digested last year ([2023] LMCLQ 167 §36), was ultimately decided on the basis of mistake of law without the Court needing to decide “the large question” whether the principle recognised in Woolwich Equitable Building Soc v IRC [1993] AC 70 should be imported into Australian law. 
Some lower court decisions (see, eg, Prygodicz v Commonwealth (No 2) [2021] 
FCA 634; State Bank of New South Wales Ltd v Commissioner of Taxation (1995) 62 FCR 371, 378 (Wilcox J); Esso Australia Resources Ltd v Gas & Fuel Corp of 
Victoria [1993] 2 VR 99, 108 (Gobbo J)) have expressed openness to Woolwich,

Unjust enrichment in Australia


The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.