Exploring the Boundaries of Compensation for Misleading Conduct: Restitution and Accounting for Profits under the ACL.

Abstract

Gain-based relief has long been available to redress loss or damage suffered because of misleading conduct, pursuant to the ‘smorgasbord’ of remedies under s87 Trade Practices Act (now s243 Australian Consumer Law) and equivalent legislative schemes. This is so notwithstanding that the remedial scheme is expressly compensatory in its aims. Common remedies include statutory orders akin to equitable rescission and orders for the refund of money or return of property. Much rarer are orders to strip the defendant of profits obtained as a result of misleading conduct. This paper explores the boundaries of the compensatory requirement by reference to profit-based measures as a means both of providing recompense to the plaintiff and deterring misleading conduct.

Presented by Professor Elise Bant, Melbourne University

Professor Bant holds joint bachelor degrees in Arts and Law (hons) from the University of Western Australia. She also holds the degrees of Bachelor of Civil Laws with distinction and Doctor of Philosophy from the University of Oxford, where she was a Clarendon scholar. She practised in commercial litigation with national law firm Freehills before joining The University of Western Australia Law School. She subsequently taught at Oxford and was a visiting scholar in Portugal, before joining Melbourne Law School in 2008. She is the Co-convenor (with Professor Andrew Robertson) of the Obligations Group at MLS and a former Associate Dean of the Melbourne Juris Doctor degree. 

Her interests lie in the fields of unjust enrichment and restitution law, property, contract and consumer law, civil remedies, equity and trusts. She is author of The Change of Position Defence (Hart Publishing, Oxford 2009) and co-author (with Justice James Edelman) of Unjust Enrichment (Hart Publishing, Oxford, 2016), editor of two collections of essays, co-author of a leading Australian casebook on Remedies and has published over 50 articles, chapters and other scholarly works in her specialist fields. She is also a general editor of the Journal of Equity. She is currently working on Australian Research Council grant research with Associate Professor Jeannie Paterson, which examines the regulation of misleading conduct at common law, in equity and under statute.

Visit Professor Bant's biography.