The Counter-Restitution Defence

Speaker: Dr Timothy Pilkington, Thorndon Chambers, Wellington, NZ

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The prevailing view is that one of the defences to a claim for restitution for ‘unjust enrichment’ is the counter-restitution defence.  However, there are very few cases where the counter-restitution defence has been recognised; academic consideration of the defence has also been limited.  This article considers the justification for and scope of the counter-restitution defence.  It argues that in cases involving ‘benefits’ conferred under void contracts and contracts rescinded ab initio, the defence is a form of ‘statutory set-off’. On this view, there is not truly a distinct counter-restitution defence in such cases.  By contrast, in cases involving benefits conferred under a contract that has been terminated or which remains on foot—where the ground for restitution is ‘failure of condition’ (or ‘failure of basis’), it is argued that there is a distinct counter-restitution defence. 

About the Speaker

Tim completed his D. Phil at St John’s College, University of Oxford on restitution for a failure of condition in 2023 under the supervision of Professor Ben McFarlane, having previously lectured at the University of Sydney Law School, where he taught property and commercial law, and served as a Clerk to Justice David Hammerschlag and then Justice Julie Ward in the New South Wales Supreme Court. He returned to New Zealand in 2023 and currently  practices at Thorndon chambers in Wellington, NZ, where he specialises in commercial, trusts and arbitration matters. He is the author, amongst other many other valued works, of T Pilkington, ‘Restitution for a Failure of Condition’ (Hart, 2026, forthcoming).