Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ALEXANDER GARNET ROXBOROUGH & ORS APPELLANTS

AND

ROTHMANS OF PALL MALL AUSTRALIA

LIMITED RESPONDENT

Roxborough v Rothmans of Pall Mall Australia Limited

[2001] HCA 68

6 December 2001

S199/2000

ORDER

1. Appeal allowed with costs. 2. Set aside orders of the Full Court of the Federal Court made on 11 November 1999. 3. In place thereof, order that: 4. the appeal to that Court be allowed with costs; 5. the orders of Emmett J made on 18 February 1999 be set aside; and 6. in place of the orders of Emmett J, there be: 7. judgment entered for the first appellant in the sum of $14,377.33; for the second appellant for $11,017.12; for the third appellant for $18,521.99; for the fourth appellant for $31,716.32; for the fifth appellant for $15,622.98; for the sixth appellant for $35,877.19; and for the seventh appellant for $26,456.55; 8. an order that the respondent pay the appellants' costs of the action; and 9. liberty to apply to a Judge of the Federal Court for an order for interest under s 51A of the Federal Court of Australia Act 1976 (Cth).

On appeal from the Federal Court of Australia

Representation:

S J Gageler SC with R A Dick for the appellants (instructed by Glasheen & Quilty)

B W Walker SC with I M Jackman for the respondent (instructed by Clayton Utz)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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.