Peter Devonshire and Rohan Havelock (eds), The Impact of Equity and Restitution in Commerce
| DOI | 10.3366/elr.2022.0771 |
| Author | |
| Pages | 278-279 |
| Date | 01 May 2022 |
| Published date | 01 May 2022 |
This is the twenty-ninth volume in Hart’s Studies in Private Law series. The editors’ introductory chapters orient the reader within the two levels of debate pursued by the contributors: what are tagged “The Macro Level” (ch 1), and “The Micro Level” (ch 2). The first flight of chapters (chs 3-7) offers perspectives on evolving debates about the relationships of Equity and restitution with other areas of private law, especially contract and property. The second flight (chs 8-12) delves into specific Equitable and restitutionary controversies, focusing on fiduciary doctrines and remedies.
As is customary, this review picks out only a few highlights from this enjoyable book. Justice Stephen Gageler elegantly reviews Australia’s experience of fiduciary obligations in the commercial setting (ch 8: “Expansion of Fiduciary Paradigm into Commercial Relationships: The Australian Experience”). His Honour briskly considers the narrow, core fiduciary duties in Australia (proscribing actual or potential conflicts of interest or duty, and unauthorised profits), and the consequences flowing from their breach (such as equitable compensation, rescission of transactions, and the imposition of remedial constructive trusts). He then examines the rich Australian case law on when fiduciary duties arise. In this regard, his Honour emphasises that the critical question is when one is entitled to expect loyalty from another, and the need to pay close attention to the facts of a given...
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