The fabrication of unjust enrichment in Australian law: Pavey & Matthews v Paul reassessed

摘要

Until 1987, the principle of unjust enrichment was foreign to Australian law. In Pavey & Matthews v Paul, the High Court adopted the principle as the foundation for claims for quantum meruit in cases where a contract was unenforceable by reason of statute. In recent years the High Court has receded from the doctrine, but without actually departing from or expressly criticising Pavey & Matthews. This article argues that the reasoning in the primary judgment of Deane J in that case is seriously flawed and does not provide any proper explanation or justification for the importation of unjust enrichment into Australian law. With the benefit of 20 years hindsight, it has become apparent that unjust enrichment is not the handy, unifying concept which Deane J had hoped for. It is argued that this seminal case is based on seriously flawed reasoning and should no longer be regarded as sound. If unjust enrichment is to remain as a credible part of Australian common law, then the High Court will need to reassess the matter in the next appropriate case.