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 Elise Bant
Professor Elise Bant

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.

About Australian Centre for Private Law Events

The mission of the ​Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:

Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.

Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.

Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.

The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.

Venue

Bar Association of Queensland
Ground Floor Inns of Court
107 North Quay
Brisbane Qld 4000
Room: 
The Gibbs Room

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