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4 - Monetary Remedies in Equity

from Part B - Equitable Remedies

Michael Bryan
Affiliation:
University of Melbourne
Vicki Vann
Affiliation:
Monash University, Victoria
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Summary

In certain situations equity orders the defendant to make payments to the plaintiff as a remedy for the wrong done. These are orders for the defendant to account for profits made, or pay equitable compensation to the plaintiff. These remedies impose a personal obligation on the wrongdoer to pay and do not per se attach to property. This is their disadvantage compared to proprietary remedies in the case of the defendant's insolvency. The remedies perform substantially different tasks. We will now look at each remedy in turn.

Accounts of profits

As a general rule, accounts of profits are not available at common law. They are designed to strip profits made in breach of equitable obligations, preventing the wrongdoer profiting from his own wrong. The remedy is awarded in response to breaches of trust, fiduciary obligations and the obligation of confidence. The essence of the plaintiff's complaint is that the defendant has usurped a profit-making opportunity that should have come to the plaintiff alone (if to anyone at all); justice requires the profit made be removed from the defendant and directed to the plaintiff. However, the remedy is not designed to punish the defendant. As with all equitable remedies it is designed to do corrective justice between the parties. Therefore, only net profits are stripped from the defendant. Although the defendant cannot profit from his wrong he should not be put in a worse position than if he had not taken up the opportunity.

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Publisher: Cambridge University Press
Print publication year: 2012

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