The scope of equitable contribution in Australian law
- Publication Type:
- Thesis
- Issue Date:
- 2008
Closed Access
| Filename | Description | Size | |||
|---|---|---|---|---|---|
| 01Front.pdf | contents and abstract | 2.06 MB | |||
| 02Whole.pdf | thesis | 36.59 MB |
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NO FULL TEXT AVAILABLE. Access is restricted indefinitely. ----- This thesis examines the theoretical basis for, and scope of, the doctrine of equitable
contribution under Australian law.
The examination commences with a historical analysis of the development of the
right to contribution in the Court of Chancery. This is compared with the right as it
developed at common law as an action for money paid. The historical study
clarifies the scope of the doctrine in equity and gives context and meaning to
important concepts and principles applied in contemporary contribution law in
Australia. The common thread across the variety of cases in which contribution has
been granted in equity is a pre-existing equality between the parties in the nature of
their relationship, shared liability or duty, or common exposure to risk, or other
community of interest with respect to the liability incurred by the plaintiff. This
thesis concludes that whilst in most cases a shared liability to the same third party
founds the right to contribution, this is not an essential requirement of the right in
equity.
The thesis studies various tests for the availability of contribution, tracing them to
their original context, and suggests that there are differences in meaning between
some tests which should be recognized so as to assist in the classification of
different types of contribution in equity.
The modem application of the doctrine of equitable contribution in Australia
between mixed concurrent wrongdoers is then examined. The principles which
have been applied in these cases are compared with the findings of the historical
analysis. The pressure for reform to accommodate contribution claims in this
context is also studied and the role of equity to assist in such cases is compared with
the statutory schemes for contribution between mixed concurrent wrongdoers which
have been introduced in some jurisdictions.
The thesis also examines the modem restitutionary analysis of the doctrine of
equitable contribution. It examines restitution's focus upon the presence of an
'unjust enrichment' to the defendant in the form of the discharge of the defendant's
liability by the plaintiff and considers examples of the application of contribution in
equity which do not arise from an unjust enrichment to the defendant in this form.
The thesis concludes that a restitutionary analysis is unnecessary to clarify existing
equitable principles and has the potential to distort the application of the equitable
doctrine if it restricts availability of contribution to cases in which the defendant has
been unjustly enriched through the discharge of a legal liability by the plaintiffs
payment.
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