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Unit of study_

LAWS3521: Law of Restitution and Unjust Enrichment

Semester 2, 2021 [Normal day] - Camperdown/Darlington, Sydney

Students who enjoyed studying other private law subjects will enjoy this unit. The central question considered is when the law allows one party to recover (the value of) benefits obtained by another. Despite the relative simplicity of this core concern, students will see that it raises a myriad of difficult, interesting and often unresolved questions. Perhaps the most fundamental of these questions is whether there is a unified law of restitution (or 'unjust enrichment') at all, or whether the subject merely brings together number of distinct, and only superficially related, claims. The unity of the law of 'restitution' for 'unjust enrichment' is now generally accepted in England, albeit that this is a relatively recent phenomenon. By contrast, the High Court of Australia has been more cautious in unifying the historically disparate restitutionary claims, upon which the modern law is based. While the focus will be on understanding precisely when the recovery of (the value of) benefits is possible under Australian law, a key underlying question explored is whether the Australian or English approach to the subject is preferable. Each week students are expected to read textbook chapters, cases, and articles by way of preparation for discussion in seminars.

Unit details and rules

Unit code LAWS3521
Academic unit Law
Credit points 6
Prohibitions
? 
LAWS5221
Prerequisites
? 
LAWS1012 and LAWS1015 and LAWS1017 and LAWS2012
Corequisites
? 
LAWS2015
Assumed knowledge
? 

None

Available to study abroad and exchange students

Yes

Teaching staff

Coordinator David Winterton, david.winterton@sydney.edu.au
Lecturer(s) David Winterton, david.winterton@sydney.edu.au
Type Description Weight Due Length
Final exam (Take-home short release) Type D final exam Final take-home exam [Option 2]
Final 2hr (+30 mins reading time) take-home exam
0% Formal exam period 2 hours
Outcomes assessed: LO1 LO5 LO3 LO4 LO2 LO6
Participation Structured Class participation
Class participation around weekly readings & questions set before class.
0% Ongoing Ongoing
Outcomes assessed: LO1 LO5 LO4 LO3
Assignment Mid-semester assignment
Assignment
0% Week 08
Due date: 08 Oct 2021 at 16:00

Closing date: 22 Oct 2021
1500 words
Outcomes assessed: LO1 LO2 LO4 LO5 LO3 LO6
Assignment Outline for final research essay
Outline for those writing optional essay and wishing to devise own topic
0% Week 09
Due date: 11 Oct 2021 at 10:00
250 words
Outcomes assessed: LO1 LO4 LO3 LO5
Assignment Final Research Essay [Option 1]
Research Essay
0% Week 13
Due date: 14 Nov 2021 at 11:59

Closing date: 03 Dec 2021
4000 words
Outcomes assessed: LO1 LO6 LO5 LO3 LO4 LO2
Type D final exam = Type D final exam ?

Assessment summary

Structured Class participation (10%): Students are required to get acquainted with readings set for any particular class in advance of the class. Students will be assessed on the quality, rather than quantity, of their contributions. What is principally sought are constructive, insightful remarks (including thoughtful questions) provided consistently throughout the semester, which contribute positively towards class discussion.

Mid-semester assignment (30%):

Students must answer one of three essay questions. These will be released on Wednesday, 22 September 2021 at 9:00 and the assignment is due on Friday, 8 October 2021 at 16:00. The maximum word length is 1500 words.

For the remaining 60%, students have the choice of a research essay or a final exam.

Final assessment option 1:  Research essay (60%): The research essay requires students to answer one of a choice of ten research essay questions, which will be released on Wednesday, 1 September, 2021 at 9:00. This assignment is due on Sunday, 14 November 2021 at 23:59 and has a maximum word length of 4000 words.

If students wish to design their own essay topic, this topic must first be submitted to the convenor by Monday, 11 October 2021 at 10:00 in the form of a 250-word outline for prior approval and before they begin working on their essay.

Research essay outline (0%): For those students who are writing the optional essay, and wish to devise their own topic, a precondition is the submission for prior approval of a 250-word outline to the convenor by Monday, 11 October 2021 at 10:00. This is non-assessable.

Final assessment option 2: Final take-home exam (60%): The final take-home exam will be of 2 hours duration with an additional 30 minutes’ reading time and will be scheduled during the exam period. Students will be required to answer two of a choice of ten essay questions.  The word limit will be 3000 words.

For some special consideration applications, students may have to complete an alternative assessment.

IMPORTANT NOTE: A student must make a genuine attempt at all assessment tasks set out in this Unit of Study in order to obtain a Pass mark and grade (or above); otherwise, an Absent Fail grade will be recorded as the student’s result for this Unit of Study.

 

Assessment criteria

The University awards common result grades, set out in the Coursework Policy 2014 (Schedule 1).

As a general guide, a high distinction indicates work of an exceptional standard, a distinction a very high standard, a credit a good standard, and a pass an acceptable standard.

Result name

Mark range

Description

High distinction

85 - 100

• Completely answers the question.
• Contains striking originality of approach or analysis.
• Demonstrates exhaustive or innovative research (where independent research
required).
• Exceptionally well written, structured and expressed.
• Is otherwise exceptional in some way.

Distinction

75 - 84

• Completely answers the question.
• Achieves a critical and evaluative approach to the issues.
• Content and structure is well organised in support of the argument.
• Demonstrates extensive research and analysis to support a well-documented
argument.
• Generally well expressed and free from errors.
• Has a clear structure and is well articulated.

Credit

65 - 74

• Covers main issues fairly well in answering the question.
• Contains no significant errors
• Demonstrates an attempted critical approach to the issues.
• Demonstrates reasonably sound research and analysis in addressing the key issues.
• Has a clear structure and reasonably clear expression.

Pass

50 - 64

• Identifies the key issues, but does not follow through with a reasoned argument.
• Contains some significant errors.
• Displays satisfactory engagement with the key issues.
• Offers descriptive summary of material relevant to the question.
• Superficial use of material, and may display a tendency to paraphrase.
• Demonstrates little evidence of in-depth research or analysis.
• Adequate expression.
• Overall, demonstrates the minimum level of competence in the assessment and
satisfies the requirements to proceed to higher-level studies in the degree or subject
area.

Fail

0 - 49

• Does not answer the question.
• Contains significant or numerous errors.
• Few or no identifiable arguments.
• Content that is inappropriate or irrelevant.
• Lack of research or analysis.
• Difficult or impossible to understand through poor grammar, expression or
structure.
• Overall, does not demonstrate the minimum level of competence in the
assessment.

For more information see sydney.edu.au/students/guide-to-grades

For more information see guide to grades.

Late submission

In accordance with University policy, these penalties apply when written work is submitted after 11:59pm on the due date:

  • Deduction of 5% of the maximum mark for each calendar day after the due date.
  • After ten calendar days late, a mark of zero will be awarded.

This unit has an exception to the standard University policy or supplementary information has been provided by the unit coordinator. This information is displayed below:

The late submission of a piece of assessment, which has not been granted an extension, will attract a penalty of 10% of the total marks available for the piece of assessment per calendar day or part thereof.

Academic integrity

The Current Student website  provides information on academic integrity and the resources available to all students. The University expects students and staff to act ethically and honestly and will treat all allegations of academic integrity breaches seriously.  

We use similarity detection software to detect potential instances of plagiarism or other forms of academic integrity breach. If such matches indicate evidence of plagiarism or other forms of academic integrity breaches, your teacher is required to report your work for further investigation.

You may only use artificial intelligence and writing assistance tools in assessment tasks if you are permitted to by your unit coordinator, and if you do use them, you must also acknowledge this in your work, either in a footnote or an acknowledgement section.

Studiosity is permitted for postgraduate units unless otherwise indicated by the unit coordinator. The use of this service must be acknowledged in your submission.

Simple extensions

If you encounter a problem submitting your work on time, you may be able to apply for an extension of five calendar days through a simple extension.  The application process will be different depending on the type of assessment and extensions cannot be granted for some assessment types like exams.

Special consideration

If exceptional circumstances mean you can’t complete an assessment, you need consideration for a longer period of time, or if you have essential commitments which impact your performance in an assessment, you may be eligible for special consideration or special arrangements.

Special consideration applications will not be affected by a simple extension application.

Using AI responsibly

Co-created with students, AI in Education includes lots of helpful examples of how students use generative AI tools to support their learning. It explains how generative AI works, the different tools available and how to use them responsibly and productively.

WK Topic Learning activity Learning outcomes
Week 01 1. Introduction to Legal Taxonomy and the ‘Unjust Enrichment’ Principle, 2. Restitution for ‘Unjust Enrichment’ in Australia: Some Key Debates. Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 02 3 and 4. Enrichment at the Expense of the Claimant Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 03 5 and 6. Introduction to Unjust Factors and ‘Mistake’ Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 04 7. Coercion, 8. Defects in Personal Capacity Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 06 9 and 10. ‘Failure of Consideration’ or ‘Failure of Condition’ Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 07 11. Other Reasons for Restitution?, 12. ‘Absence of Basis’ Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 09 13. Restitution for ‘Wrongdoing’ Part I, 14. ‘Restitution’ for Wrongdoing Part II Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 10 15. ‘Ignorance’ or ‘Absence of Consent’ and Tracing, 16. Proprietary Restitution Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 11 17. The Change of Position Defence and the Role of Estoppel, 18. Other Defences in the Law of Restitution Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6
Week 12 19. Rival Approaches and Central Debates in the Law of Restitution, 20. Theoretical Foundations of the Law of Restitution and Unjust Enrichment Seminar (4 hr) LO1 LO2 LO3 LO4 LO5 LO6

Attendance and class requirements

  • Attendance: All students are required to attend 70% of classes (or as otherwise specified by the Unit Coordinator) to satisfy the pass requirements for each unit of study. Attendance requirements may be satisfied by in person as specified by the Unit Coordinator. Failure to meet this requirement may result in a student being precluded from sitting the final assessment.
  • Word count penalty: A piece of assessment which exceeds the prescribed word limit will attract a penalty of 10% of the total marks available for the piece of assessment for every 100 words, or part thereof. The total word count for essay and other written assessments will exclude bibliography; footnote numbers; footnote citation; cover page and include body text; headings and sub-headings; quotations; anything other than numbers and citations in footnotes.
  • Referencing guide: The Sydney Law School expects you to use the Australian Guide to Legal Citation (4th edition, 2018) for your footnoting style, although you should confirm this with your lecturer, and a link to the library website where this is set out comprehensively is available at https://libguides.library.usyd.edu.au/c.php?g=508212&p=3476376

Study commitment

Typically, there is a minimum expectation of 1.5-2 hours of student effort per week per credit point for units of study offered over a full semester. For a 6 credit point unit, this equates to roughly 120-150 hours of student effort in total.

Required readings

K Barker and R Grantham, Unjust Enrichment (2nd ed, 2018 LexisNexis)

 

Learning outcomes are what students know, understand and are able to do on completion of a unit of study. They are aligned with the University's graduate qualities and are assessed as part of the curriculum.

At the completion of this unit, you should be able to:

  • LO1. Actively engage with the relevant primary and secondary materials and through this acquire a sophisticated understanding of the law of restitution in Australia as well as the ways in which the Australian approach differs from that taken in other commonwealth jurisdictions, particularly England.
  • LO2. Demonstrate critical thinking and problem solving.
  • LO3. Apply your written and oral communication and argumentation skills
  • LO4. Develop your capacity to construct legal arguments based on the studied materials so as to be able to influence the conduct of negotiations, as well as dispute resolution proceedings in commercial law
  • LO5. Develop your capacity to apply your knowledge of the material covered in the resolution of practical problems spanning across the various different facets of private and commercial law.
  • LO6. Fill in various gaps in your understanding of private law and come to better understand the way that its various different aspects fit together.

Graduate qualities

The graduate qualities are the qualities and skills that all University of Sydney graduates must demonstrate on successful completion of an award course. As a future Sydney graduate, the set of qualities have been designed to equip you for the contemporary world.

GQ1 Depth of disciplinary expertise

Deep disciplinary expertise is the ability to integrate and rigorously apply knowledge, understanding and skills of a recognised discipline defined by scholarly activity, as well as familiarity with evolving practice of the discipline.

GQ2 Critical thinking and problem solving

Critical thinking and problem solving are the questioning of ideas, evidence and assumptions in order to propose and evaluate hypotheses or alternative arguments before formulating a conclusion or a solution to an identified problem.

GQ3 Oral and written communication

Effective communication, in both oral and written form, is the clear exchange of meaning in a manner that is appropriate to audience and context.

GQ4 Information and digital literacy

Information and digital literacy is the ability to locate, interpret, evaluate, manage, adapt, integrate, create and convey information using appropriate resources, tools and strategies.

GQ5 Inventiveness

Generating novel ideas and solutions.

GQ6 Cultural competence

Cultural Competence is the ability to actively, ethically, respectfully, and successfully engage across and between cultures. In the Australian context, this includes and celebrates Aboriginal and Torres Strait Islander cultures, knowledge systems, and a mature understanding of contemporary issues.

GQ7 Interdisciplinary effectiveness

Interdisciplinary effectiveness is the integration and synthesis of multiple viewpoints and practices, working effectively across disciplinary boundaries.

GQ8 Integrated professional, ethical, and personal identity

An integrated professional, ethical and personal identity is understanding the interaction between one’s personal and professional selves in an ethical context.

GQ9 Influence

Engaging others in a process, idea or vision.

Outcome map

Learning outcomes Graduate qualities
GQ1 GQ2 GQ3 GQ4 GQ5 GQ6 GQ7 GQ8 GQ9

This section outlines changes made to this unit following staff and student reviews.

This is the first time this unit has been offered.

Disclaimer

The University reserves the right to amend units of study or no longer offer certain units, including where there are low enrolment numbers.

To help you understand common terms that we use at the University, we offer an online glossary.