"[48]. It does not, however, exclude the emergence of novel occasions of unjust enrichment supporting claims for restitutionary relief. It has been said of Lord Mansfield's judgment in Moses v Macferlan[49] that it was his view that "the grounds for obtaining relief in money had and received were not to be considered static and the remedy could be made available in any case in which money had been paid in circumstances where it was unjust for the defendant to retain it."[50] Nor is the emergence of general principle precluded when "derived from judicial decisions upon particular instances"[51]. These appeals, however, focus upon the particular category of case involving "failure of consideration".
[48] Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 544 [72] per Gummow J.
[49] [1760] EngR 713; (1760) 2 Burr 1005 [97 ER 676].
[50] Maddaugh and McCamus, The Law of Restitution, 2nd ed (2004) at 82 and see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 553 [95] per Gummow J.
[51] Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 158 [154], quoting Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 544 [72].
The judgment of Gummow and Bell JJ includes:
The term "counter-restitution" has been used in this Court[193] but, without further analysis[194], is an unfortunate expression for several reasons. It is another expression, along with those recently disfavoured in Lumbers v W Cook Builders Pty Ltd (In liq)[195] by Gummow, Hayne, Crennan and Kiefel JJ, which provides a framework for analysis at too high a level of abstraction. In the present litigation, the term, as pointed out above, distracts attention from the regular operation of established litigious procedures. It also distracts attention from a principled consideration of the question raised by McHugh and Gummow JJ in Fitzgerald v F J Leonhardt Pty Ltd[196]. This, in short, is the degree of flexibility in fashioning the just measure of recovery on an action such as that for money had and received, given that, while it is a legal action not an equitable suit, it is settled in Australia that the action is a liberal action in the nature of a bill in equity[197].
[193] David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 at 383.
[194] See, for example, the further analysis in Roach, "Counter-Restitution for Monetary Remedies in Equity", (2011) 68 Washington and Lee Law Review 1271 at 1291-1297.
[195] [2008] HCA 27; (2008) 232 CLR 635 at 661 [75], 662-663 [78]; [2008] HCA 27.
[196] [1997] HCA 17; (1997) 189 CLR 215 at 231.
[197] National Commercial Banking Corporation of Australia Ltd v Batty [1986] HCA 21; (1986) 160 CLR 251 at 268; [1986] HCA 21; Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 525 [15]-[16], 539-540 [62]-[63], 543 [71], 548-555 [83]-[100].
The judgment of Heydon J, dissenting, includes:
The Court of Appeal held that no actions for money had and received were available to Rural Finance Pty Ltd on the ground that there was no total failure of consideration. The Court of Appeal's reasons for that view do not have to be investigated, because it was not necessary that there be a total failure of consideration.
As Sir Guenter Treitel says, the supposed requirement that there be a total failure of consideration is now much qualified. One of these qualifications supports the view that it "should ... no longer apply where the [payer] has no remedy, or no satisfactory remedy, for breach (eg by way of action for damages[227]) in respect of the part left unperformed by the payee"[228]. Sir Guenter's reasoning has been approved in this Court[229]. On that view, there is no requirement of total failure, since Rural Finance Pty Ltd has no remedy other than for money had and received.
[227] The footnote in Peel (ed), Treitel on the Law of Contract, 13th ed (2011), par 22-004 at 1134 reads: "Or, in the case of a loan of money, by way of action for the agreed sum."
[228] Peel (ed), Treitel on the Law of Contract, 13th ed (2011), par 22-004 at 1134 (emphasis in original).
[229] Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 558 [107], which quotes the corresponding passage from the 10th ed (1999) at 979.
Lionel
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This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
====
This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
====
This message was delivered through the Restitution Discussion Group,
an international internet LISTSERV devoted to all aspects of the law
of unjust enrichment. To subscribe, send "subscribe enrichment" in
the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe,
send "signoff enrichment" to the same address. To make a posting to
all group members, send to <enrichment@lists.mcgill.ca>. The list is
run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
size:11.0pt">
The workshop website can be found at https://essl.leeds.ac.uk/law/events/event/853/the-place-of-restitution-in-the-modern-law-30-years-after-an-introduction-to-the-law-of-restitution