Cauvin v Philip Morris Limited [2002] NSWSC 736

New South Wales Supreme Court

CITATION : Cauvin v Philip Morris Limited [2002] NSWSC 736 revised - 04/09/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2625 of 2002 HEARING DATE(S) : 18 and 19 July 2002 JUDGMENT DATE : 22 August 2002

Myrian Cauvin on her own behalf and as representative of the persons described in Schedule A to the amended statement of claim filed 2 July 2002 (Plaintiff) Philip Morris Limited (First Defendant) Philip Morris (Australia) Limited (Second Defendant) British American Tobacco Australia Services Limited (formerly known as W.D. & H.O. Wills (Australia) Limited) (Third Defendant) W.D. & H.O. Wills Holdings Limited (Fourth Defendant) PARTIES : British American Tobacco Australasia Limited (formerly known as Rothmans Holdings Ltd) (Fifth Defendant) British American Tobacco Australia Limited (former known as Rothmans of Pall Mall (Australia) Limited) (Sixth Defendant) Coles Supermarkets Pty Limited including as representative of the persons described in Schedule B (Seventh Defendant) Coles Myer Ltd including as representative of the persons described in Schedule B (Eighth Defendant) Darren Johnston Barker (Ninth Defendant) Gina Joanne Barker (Tenth Defendant) JUDGMENT OF : Windeyer J at 1

Mr N Francey (Plaintiff) Mr J Sackar QC with him Mr J Hall (First and Second Defendants) COUNSEL : Mr N Hutley SC with him Mr S Goodman (Third, Fourth, Fifth and Sixth Defendants) Mr R Weber SC with him Ms K Williams (Seventh and Eighth Defendants) Mr S J Gageler SC with him Mr J Clarke (Ninth and Tenth Defendants) Maurice May & Co (Plaintiff) Allens Arthur Robinson (First and Second Defendants) SOLICITORS : Clayton Utz (Third, Fourth, Fifth and Sixth Defendants) Minter Ellison (Seventh and Eighth Defendants) Maurice Blackburn Cashman (Ninth and Tenth Defendants) CATCHWORDS : RESTITUTION - money had and received - failure of consideration - subrogation - unjust enrichment - whether the plaintiff/consumer can recover a component of purchase price paid to the retailer, which relates to an invalid licence fee paid by the retailer to the wholesaler where the amount of the licence fee is not specified - TRUSTS - whether the money relating to the licence fee should be subject to a constructive trust in favour of consumer - CONSUMER PROTECTION - trade practices - unconscionability - whether the retention of the money refunded by the wholesaler to the retailer is unconscionable - extent of relief available under s87 of Trade Practices Act 1975 (Cth) - PRACTICE AND PROCEDURE - representative action - difficulties in establishing membership of class of plaintiffs and defendants - whether should proceed as a representative action - PRACTICE AND PROCEDURE - whether causes of action or any of them could be made out, whether proceedings should be dismissed Business Franchise Licence (Tobacco) Act 1987 (NSW) Fair Trading Act 1987 (SA) s51AA; Federal Court of Australia Act 1976 s33Z, s33ZA, s33C LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 s11 Supreme Court Rules Pt8 r13, Pt15, r26 Trade Practices Act 1975 (Cth) s51AA, s51AB, s80, s87, Pt IVA Newburg on Class Actions 3rd Edition, Ch. 10 Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 CG Berbatis Holdings Pty Limited v Australian Competition and Consumer Commission (2001) ATPR 41-826 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51 Fifty-Fourth Street Inc v United States [1946] 157 (F2d) 68 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : GPG (Australia Trading) Pty Ltd v GIO Australia Holdings Limited (2001) 40 ACSR 252 Ha v New South Wales (1997) 189 CLR 465 Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221 Roxborough v Rothmans of Pall Mall Australia Limited (2001) 76 ALJR 203 Ryan v Great Lakes Council (1997) 78 FCR 309 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 Winterton Constructions Pty Ltd v Hambros Australia Limited (1991) 101 ALR 363 DECISION : See paragraph 39