Although the High Court’s recent decision in Lumbers v W Cook Builders Pty Ltd (in liq) reinvigorated interest in the relationship between the laws of contract and unjust enrichment, reactions to the decision have largely centred around the Court’s perceived reversion to the rigidity of the old forms of action. Putting that latter aspect of the decision largely to one side, this article seeks to identify more precisely the implications of Lumbers for the rights and obligations of contracting parties in unjust enrichment. Although the decision appears consistent with the view that liability in unjust enrichment cannot interfere with a contractual allocation of risk, the fact that this principle precluded restitutionary relief in Lumbers itself indicates that contractual relationships between the parties might be a greater bar to restitution than has been supposed. Lumbers also suggests that unjust enrichment’s subsidiary status is based on the primacy of contract, rather than the inherent doctrinal nature of unjust enrichment. Finally, further observations on the relationship between the laws of unjust enrichment and contract are made, particularly in relation to unjust enrichment’s status as an independent category of law.
“The Relationship between Contract and Unjust Enrichment: Unpacking Lumbers v Cook”, (2011) 32 Adelaide Law Review 83.