THE TYPES OF GAIN-BASED REMEDY FOR WRONGDOING

Once it has been accepted that the wrong committed by the defendant was of a type for which gain-based relief is available, it is then necessary to determine what type of remedy should be awarded.

(A) MONEY HAD AND RECEIVED

Where the defendant has obtained money as a result of the wrong he or she may be required to pay this amount to the claimant by means of the remedy of money had and received. This is a Common Law[1] restitutionary remedy, even though it is sometimes still described as an ‘action’. It is a prerequisite for this remedy to be awarded that the money which the defendant obtained as a result of the commission of the wrong was subtracted from the claimant. So, for example, if the defendant wrongly obtained the claimant’s money by deceit, the defendant may be required to repay the money to the claimant by means of the action for money had and received.[2]

  • [1] It is, therefore, not available where the defendant commits an equitable wrong.
  • [2] Alternatively, the claimant may bring a restitutionary claim founded on unjust enrichment, the ground ofrestitution being an induced mistake. See p 187, above.
 
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