Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

Today the High Court of Australia decided Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68. See www.austlii.edu.au.

Several judgments were delivered in relation to a claim for failure of consideration (a joint judgment by Gleeson CJ, Gaudron and Hayne JJ, a judgment by Gummow J one by Kirby J and one by Callinan J). The facts involved two parties that worked out their commercial dealings on the basis of a state licence fee that must be paid. That state licence fee is struck down by the High Court as an excise. The tobacco retailer claimed a refund of tax contractually paid in advance to the wholesaler that was now not liable to pay it to the government. The wholesaler argued that the consideration had not failed and that, in any event, the defence of passing on applied.

The majority allow the claim for failure of consideration and reject any defence of passing on. The joint judgment and judgment of Gummow J emphasises:

1. that the claim for failure of consideration is not confined to a contractual regime and extends to payments made on any basis which fails.

2. The meaning of 'at the expense of' enunciated by Mason J in Royal Insurance is approved as a subtraction from the wealth of the plaintiff. This would, for example, exclude an account of profits from the field of unjust enrichment and from the meaning of restitution (a point which the High Court also made in Maguire v Makaronis).

3. Passing on is rejected as a defence.

Gummow J also comments at length on the nature of claims in restitution and the nature of unjust enrichment and emphasises that unjust enrichment is not a generic formula but useful merely as a concept, although he also suggests that even as a genus there has been considerable Australian scepticism that unjust enrichment is such a genus which is all embracing many particular species.