Case: Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516
Outcome: discussed
The recognition of a "unifying legal concept" does not, however, render the traditional categories of restitutionary claims, such as the action for money had and received, null and void. On the contrary, in recent years the High Court, and superior State courts, have chosen to frame claims in restitution within the bounds of these established categories. See Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 ; (2001) 208 CLR 516, Baltic Shipping Company v Dillon [1993] HCA 4 ; (1993) 176 CLR 344, David Securities , Pavey &amp; Matthews , Ovidio , McKay (referring to Mason v New South Wales ), and Vickery v JJP Custodians Pty Ltd (2002) 11 BPR 20,333. 92 It is therefore clear from the High Court's approach in David Securities and Roxborough that while the categories of restitution are not closed, the "established categories" still provide, at the very least, the starting point for analysing restitutionary claims. 99 Nor do I consider as relevant the fact the applicant may be considered to achieve a "windfall" by reason of it receiving restitution of the overpaid rent. The High Court squarely faced this issue in Roxborough , and held that that fact did not prevent a claim in restitution. 100 Roxborough involved a claim for money had and received by retailers of tobacco products against the wholesaler of those products. The contracts of sale between the parties involved invoices that specified the wholesale price of the products and an additional fee representing an ad valorem license fee imposed by New South Wales state law. The license fee was subsequently held to be unconstitutional by virtue of it imposing an excise in contravention of s 90 of the Commonwealth Constitution . The retailers claimed sums equal to the amounts specified in the invoices as the "tobacco license fee", for approximately the month prior to the constitutional decision being handed down. These amounts had been paid by the retailers, but had been retained by the defendant and not paid to the New South Wales Government. 101 The retailers' claim was upheld by the High Court on the basis that there had been a failure of consideration. The failure in this case was described by Gummow J at [104] as "the failure to sustain itself of the state of affairs contemplated as a basis for the payments the appellants seek to recover". Gleeson CJ, Gaudron and Hayne JJ described, at [19], the failure as "the failure of a severable part of the consideration for which the net total amounts shown on the invoices were paid". 102 In Roxborough , there was no suggestion that the retailers would pass on the remitted monies to its customers. Gleeson CJ, Gaudron and Hayne JJ stated (at [5]): "[i]n all probability, whoever succeeds in these proceedings will have made a windfall gain. In the absence of some legislative intervention, the appellants, if they succeed, are unlikely to be obliged to pass on the fruits of their success to the smokers who bore the financial burden of the invalid tax. For its part, the respondent has collected what was held to be a tax on goods, but it has not had to pay it over to the revenue authorities." 103 The Court went on to order repayment by the wholesaler to the retailers of the relevant monies, irrespective of the fact that this would provide the retailers with a "windfall" benefit.