to prevent the defendants from unjustly and unfairly keeping the benefit of the
expenditure of the claimant’s funds without compensation to her. Counsel
further submitted that the claimant’s improvements had clearly been beneficial to
the defendants and it would be unconscionable for the defendants to benefit
wholly from the claimant’s expenditure to her disadvantage. In this case it was
argued that, the defendants’ enrichment was prima facie, an unjust enrichment.
[113] Conversely, counsel for the defendants contended that the claim for restitution
was untenable on the basis of claiming unjust
enrichment in these
circumstances. The pre-requisite for granting this remedy was establishing that
the benefit enjoyed by the defendant was unjust; a matter not to be simply
inferred but proved by the asserter within the ordinary civil standard of proof,
as well as it being established that awarding the remedy would do justice
between the parties.
[114] In the
Law of Restitution, 1998, 5
th
edition, p. 15, the learned authors Goff and
Jones note that:-
In restitution, as in other subjects, recourse must be had to the decided
cases in order to transfer general principle into concrete rules of law. As
Lord Wright once said of Lord Mansfield‘s famous dictum in Moses v.
Macferlan: 'Like all large generalisations, it has needed and received
qualifications in practice...The standard of what is against conscience in
this context has become more or less canalised or defined, but in
substance the juristic concept remains as Lord Mansfield left it.'
As might be expected a close study of the English decisions, and those of
other common law jurisdictions, reveals a reasonably developed and
systematic complex of rules. It shows that the principle of unjust
enrichment is capable of elaboration and refinement. It presupposes three
things. First, the defendant must have been enriched by the receipt of a
benefit. Secondly, that benefit must have been gained at the plaintiff‘s
expense. Thirdly, it would be unjust to allow the defendant to retain that
benefit. These three subordinate principles are closely interrelated, and
cannot be analysed in complete isolation from each other. Examination of
each of them throws much light on the nature of restitutionary claims and
the principle of unjust enrichment.
[115] In the context of the instant case, the law of restitution presupposes three things.
Firstly, that the defendants were enriched from a benefit received; secondly, the
benefit was derived at the claimant’s expense and thirdly, that it would be unjust
to allow the defendants to retain that benefit.
[116] In
City Properties Limited v New Era Finance Limited [2016] JMCC Comm. 1,
Edwards J. stated at para. 63:
So a claimant must have given up something to the benefit of a defendant
without it being a gift and the defendant must have freely accepted that
benefit and had at least incontrovertibly benefitted from the claimant’s
loss. Restitution as a legal proposition can no longer be termed new and
has firmly taken root in the common law.
[117] The learned authors of Halsbury’s Laws of England, Vol. 40(2), 4
th
Ed.,
Reissue, para. 1310 endorse the proposition of law on the structure of a
restitutionary claim as follows:
[I]t is now generally accepted that there are four stages to any
restitutionary claim: (1) the defendant must have been enriched; (2) the
enrichment must have been at the expense of the claimant; (3) that
enrichment must have been unjust; and (4) consideration must be given
to any applicable defences. The claimant must satisfy the court that the
first three elements of the claim have been satisfied. All three must be
satisfied before a restitutionary claim can succeed. The fourth stage, the
defences, is likely to assume ever increasing significance in the cases. As
the courts slowly expand the grounds on which restitution can be ordered,
it will fall to the defences to keep liability within acceptable bounds. In
addition to these four stages it has been argued that there is a fifth stage
to the inquiry, namely the remedies which are available to the claimant.
[118] The law of restitution is concerned with reversing a defendant’s unjust
enrichment at the claimant’s expense and a restitutionary claim can only be
brought where the defendant has been so enriched at the claimant’s expense.
Therefore, the claimant in the instant case is seeking to be restored to her
previous position through a restitutionary claim by making good the loss she has
allegedly suffered. The question therefore becomes, whether the defendants
were enriched?