| Abstrakt: |
Previously uncertain, the juridical basis of equitable subrogation in Australia is now firmly established as being the restraint of unconscientious conduct by the defendant. However, it remains unclear how this basis bears upon when a claimant will be entitled to subrogation, and when they will not. This article seeks to elucidate the unifying element between circumstances where subrogation is awarded, concluding that subrogation operates to allocate a burden to the party upon whom equitable principles conclude ultimate liability should lie. In this manner, subrogation adjusts the interests of the parties involved to give effect to an equity independently generated. This article argues that a liability-based analysis is consistent with the historical development of the doctrine and modern conceptions of the nature of subrogation rights. It proceeds to apply the analysis to the key areas in which subrogation is awarded, with a view to demonstrating that the relevant unconscientiousness is found in the denial of the carriage of ultimate liability. [ABSTRACT FROM AUTHOR] |
