Disgorgement of Profits: Gain-Based Remedies throughout the by Ewoud Hondius, André Janssen

By Ewoud Hondius, André Janssen

Disgorgement of earnings isn't really precisely a family observe in inner most legislations. rather in civil legislation jurisdictions – in place of these of the typical legislations – the suggestion isn't really renowned. What does it stand for? it's best illustrated by means of examples. the best identified being the British case of Blake v lawyer General, [2001] 1 AC 268. within which a double secret agent were imprisoned by way of the united kingdom executive sooner than escaping and settling within the former Soviet Union. whereas there wrote a booklet on his reviews, upon which the united kingdom executive claimed the proceeds of the e-book. the home of Lords, because it then was once, allowed the declare at the foundation of Blake’s breach of his employment agreement. different examples are the infringement of highbrow estate rights, the place the damages of the landlord are restricted, however the gains of the perpetrator titanic. In such circumstances, the query arises no matter if the infringing occasion will be disgorged of his profits.

This quantity goals at developing the proposal of disgorgement of earnings as a key-phrase within the discourse of non-public legislation. It doesn't purport to respond to the query even if such damages may still or shouldn't be presented. It does notwithstanding objective to give a contribution to the dialogue, the arguments in favour and opposed to, and the enterprise of a few of the actions.

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14 Edelman J formerly of the Western Australian Supreme Court now on the Federal Court of Australia. 15 Cf Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2013] SASC 91, [106]. Blue J reads Emmett J’s suggestion that gain-based relief should be allowed for tort in Hospitality Group v Australian Rugby Union (2001) 110 FCR 157 as allowing for exemplary damages. 16 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71, 77 (Knox CJ), 81 (Isaacs J); Rookes v Barnard [1964] AC 1129, 1221 (Lord Devlin); Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 129–30 (Taylor J), 149 (Windeyer J).

1999. Reconsidering disgorgement for wrongs. Modern Law Review 62: 218–240. 2 Disgorgement of Profits in Australian Private Law 27 List of Cases United Kingdom Attorney-General v Blake [2000] UKHL 45, [2001] 1 AC 268 Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109 Barry v Stevens (1862) 31 LJ Ch 785 Boardman v Phipps [1967] 2 AC 46 Bracewell v Appleby [1975] Ch 408 Brown v De Tastet (1821) Jac 284; 37 ER 858 Brown v Litton (1711) 1 P Wms 140, 24 ER 329 Cedar Capital Partners LLC v FHR European Ventures LLP [2014] UKSC 45 Chabot v Davies [1936] 3 All ER 211 Elliott v Boynton [1924] 1 Ch 236 Featherstonhaugh v Turner (1858) 25 Beav 382; 53 ER 683 General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197 Guinness plc v Saunders [1990] 2 AC 663 Jaggard v Sawyer [1995] 1 WLR 269 Jegon v Vivian (1871) LR 6 Ch 742 Keech v Sandford (1726) Sel Cas T King 61; 25 ER 223 Lake v Bayliss [1974] 1 WLR 1073 Lamine v Dorrell (1706) 2 Ld Raym 1216; 92 ER 303 Lewis Trusts v Bambers Stores [1982] FSR 281 Lister v Stubbs (1890) 45 Ch D 1 Lord Provost of Edinburgh v Lord Advocate (1879) 4 App Cas 823 Luxe Holding Ltd v Midland Resources Holding Ltd [2010] EWHC 1908 M’Intosh v Great Western Railway Co (1850) 2 Mac & G 74; 42 ER 29 Manners v Pearson [1898] 1 Ch 581 Martin v Porter (1839) 5 M & W 351, 151 ER 149 Ministry of Defence v Ashman [1993] 2 EGLR 102 Ministry of Defence v Thompson [1993] 2 EGLR 107 My Kinda Town Ltd v Soll [1983] RPC 15 O’Sullivan v Management Agencies & Music Ltd [1985] QB 428 Oughton v Seppings (1830) 1 B & Ad 241; 109 ER 776 Patel v London Borough of Brent [2003] EWHC 3081 Phillips v Homfray (1871) LR 6 Ch App 770 Phipps v Boardman [1964] 1 WLR 993 Reading v Attorney General [1951] UKHL 1, [1951] AC 507 Regal (Hastings) Ltd v Gulliver and Others [1967] AC 134 Rookes v Barnard [1964] AC 1129 Shepard v Brown (1862) 4 Giff 208; 66 ER 681 Sinclair v Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347, [2012] Ch 453 Strand Electric & Engineering v Brisford Entertainment [1952] 2 QB 246 Swordheath Properties Ltd v Tabet [1979] 1 WLR 285 Vyse v Foster (1872) LR 8 Ch App 309 Whitwham v Westminster Brymbo Coal & Coke Company [1896] 2 Ch 538 Wrotham Park Estates Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 Yates v Finn (1880) 13 Ch D 839 Australia Australasian Performing Rights Association v Grebo Trading Co Pty Ltd (1978) 23 ACTR 30 Balanced Securities Ltd v Bianco [2010] VSC 201 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874 28 K.

Indeed the English case of this kind, Wrotham Park Estate Co Ltd v Parkside Homes Ltd83 formed an essential plank of Lord Nicholls’ reasoning in Attorney-General v Blake,84 the case which led to the award of accounts of profit for breach of contract in England. 87 However, Australian courts do not do this. 79 Balanced Securities Ltd v Bianco [2010] VSC 201, [16]. 80 Bracewell v Appleby [1975] Ch 408; Jaggard v Sawyer [1995] 1 WLR 269. 81 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157, 196 (Hill and Finkelstein JJ); Town & Country Property Management Services Pty Ltd v Kaltoum [2002] NSWSC 166, [85] (Campbell J); Biscayne Partners Pty Ltd v Valance Corp Pty Ltd [2003] NSWSC 874, [232]–[235] (Einstein J); Short v Crawley [2005] NSWSC 928 [24] (White J); Hydrofibre Pty Ltd v Australian Prime Fibre Pty Ltd and Anor [2013] QSC 163, [91]–[94]; Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC 91, [99]–[109].

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