The role of unjust enrichment in New Zealand

Abstract

This paper argues that courts should recognise unjust enrichment as a cause of action, mainly due to the structure and discipline this can bring to New Zealand’s private law. This paper explores the historical development of unjust enrichment, and its relationship to the general law of restitution. This involves an exploration of legal taxonomy, and the different roles the concept of unjust enrichment can play in a common law legal system. The current New Zealand position on unjust enrichment is unclear: it can be seen operating as a label, a legal principle and some argue it is a cause of action in its own right. This paper considers how other jurisdictions have treated the concept of unjust enrichment, before briefly outlining how the cause of action should be structured in New Zealand. Given its sometimes broad nature, this paper views unjust enrichment as a supplementary action, within the law of obligations: there to provide a remedy when one is necessary, even in the absence of a wrong or an agreement between the parties.