Year: 2003
Type: article
Abstract: 2001] HCA 68.The judgments of the majority were along the same lines, and decisions on which the majority judgments were broadly consistent will be referred to as decisions of the court.tobacco licence fee 'funded [Rothmans] to meet a cost of continuing in business for ... future licence periods, to the mutual benefit of both wholesaler and retailer'.3 It had previously been held that the licensing scheme was invalid as a disguised excise duty, which the New South Wales Parliament had no power to impose under the Australian Federal Constitution.4 The recovery of money paid as licence fees to the government of New South Wales was governed by a separate statute and was not in issue in Roxborough.The issue at stake was whether, since it was now known that Rothmans did not have to pay the licence fee, Roxborough could recover the part of the price paid that was attributable to it.Otherwise it would seem that Rothmans would be left with an unjustified surplus from the contract.References below to the recovery of the payment refer to the recovery of this part of the total payment.The court denied that there was any contractual claim to recover the payment.Such a claim, it was thought, would have to be based on an implied term in the contract to the effect that the sum paid in respect of the tobacco licence fee would be repayable if Rothmans was not liable to pay a licence fee.According to the court, it would be 'artificial and unconvincing' to find such a term, because the parties 'made no agreement, express or implied, about what was to happen if the tax was held to be invalid'.5 The contingency that arose was not provided for in the contract. The claim based on failure of consideration as a failure of conditionIt was held, however, that there was a non-contractual claim to recover the payment.This was a form of the claim traditionally described as a claim for money had and received, and nowadays as a restitutionary claim, the ground for which in the present circumstances was 'failure of consideration'.This was understood to mean that the payment was made on a basis or a condition or 2 Save for a nominal sum. 3 Para 54, per Gummow J; see also para 16, per Gleeson CJ, Gaudron and Hayne JJ. 4 Ha v New South Wales (1997) 189 CLR 465. 5 Gleeson CJ et al, para 20; see also Gummow J, para 60; Kirby J, para 157.Similarly, there was no implied term to the effect that Rothmans was obliged to pay the licence fee: see below n 25.
Source: Modern Law Review
Author: Peter Jaffey
Institution: Brunel University of London
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2139196467