Roxborough v Rothmans of Pall Mall Australia Limited

Contract – Money had and received – Total failure of consideration – Contract between wholesaler and retailers – Wholesale cost included cost of goods plus tax identified as tobacco licence fee – Tax a distinct part of consideration paid by retailers – Tax held invalid so wholesaler not liable to pay tax collected from retailers – Retailers sought repayment of money for tax as a result of failure of consideration – Whether wholesaler had title to retain the money – Whether failure of the tax involved a failure of a distinct and severable part of the consideration.

Restitution – Recovery – Unjust enrichment – Contract between wholesaler and retailers – Wholesale cost included indirect tax held to be invalid – Whether wholesaler had a duty to make restitution to the retailers – Whether enrichment was at the expense of the retailers who had passed the tax on to consumers and the consumers were unlikely to claim the tax back – Whether unjust enrichment must be at the expense of the party seeking to recover – Whether passing on is a defence to a claim for recovery.

Contract – Implied terms – Test for implying a term – Contract between wholesaler and retailers – Wholesale cost included cost of goods plus tax – Tax held invalid – No express agreement about what would happen if the tax was held to be invalid – Whether such an agreement could be implied from the terms of the contract.

Constitutional law (Cth) – Duty of excise – Invalidity of state law – Consequences of invalidity for contracts agreed to on the basis of the validity of such law – Proceedings by retailers for recovery of invalid tax from wholesaler – Retailers unwilling to refund any amount received to consumers to whom tax passed on – Whether retailers have suffered any loss which they can recover from wholesaler – Whether any such recovery would constitute unjust enrichment of retailers – Whether different principles govern recovery from a state party which has recouped invalid tax and from a private corporation which holds such tax at time invalidity is pronounced.

Words and phrases – "total failure of consideration" – "at the expense of" – "passing on".

Business Franchise Licences (Tobacco) Act 1987 (NSW) – ss 41, 45.