Absence of basis: A path to reconciliation between Australian and English unjust enrichment law?

The High Court of Australia has resisted recognition of unjust enrichment as an "all-embracing theory" of when transfers of wealth should be reversed. The unjust factors scheme sought to be just that, by purporting to explain all the circumstances in which every legal basis justifying a transfer may be absent or invalid. The "absence of basis" approach to unjust enrichment supersedes the unjust factors. Under the new approach, once an enrichment of the defendant at the claimant's expense is proven, the question becomes whether any other legal or equitable doctrine gives the defendant a right to retain the enrichment. It is hoped that the surrender of jurisdictional ground previously claimed by the unjust factors will be sufficient to persuade the High Court to embrace this more focused and coherent version of unjust enrichment as the "unifying legal concept" which the court has long professed to acknowledge.