Cauvin v Philip Morris Limited - [2002] NSWSC 736

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

PARTIES :

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)
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

COUNSEL : Mr N Francey (Plaintiff)
Mr J Sackar QC with him Mr J Hall (First and Second Defendants)
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)

SOLICITORS: Maurice May & Co (Plaintiff)
Allens Arthur Robinson (First and Second Defendants)
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

LEGISLATION CITED: Business Franchise Licence (Tobacco) Act 1987 (NSW)
Fair Trading Act 1987 (SA) s51AA;
Federal Court of Australia Act 1976 s33Z, s33ZA, s33C
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

CASES CITED: Carnie v Esanda Finance Corporation Limited (1995) 182 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 736
Decision Date: 22 August 2002

CaseChat Overview and Summary

In Cauvin v Philip Morris Limited, the plaintiff, an Australian consumer, sought restitution of a portion of a purchase price paid to a retailer, which was alleged to relate to an invalid licence fee paid by the retailer to the wholesaler. The dispute was heard in the Federal Court of Australia. The plaintiff contended that the money relating to the licence fee should be subject to a constructive trust in favour of the consumer, and that the retention of the money refunded by the wholesaler to the retailer was unconscionable under consumer protection laws. The plaintiff further argued that the proceedings should proceed as a representative action due to the large number of consumers affected by the alleged invalid licence fee.

The legal issues before the court included whether the plaintiff could recover a portion of the purchase price paid to the retailer, which related to an invalid licence fee paid by the retailer to the wholesaler. Additionally, the court needed to determine whether the money relating to the licence fee should be subject to a constructive trust in favour of the consumer, and whether the retention of the money refunded by the wholesaler to the retailer was unconscionable. The court also considered whether the proceedings should proceed as a representative action, and whether the causes of action or any of them could be made out.

The court found that the plaintiff could recover a portion of the purchase price paid to the retailer, which related to an invalid licence fee paid by the retailer to the wholesaler. The court held that the money relating to the licence fee should be subject to a constructive trust in favour of the consumer, and that the retention of the money refunded by the wholesaler to the retailer was unconscionable. The court also found that the proceedings could proceed as a representative action, but that some of the causes of action could not be made out. The court dismissed some of the claims but allowed others to proceed.

The court ordered that the plaintiff could recover a portion of the purchase price paid to the retailer, which related to an invalid licence fee paid by the retailer to the wholesaler. The court also ordered that the money relating to the licence fee should be subject to a constructive trust in favour of the consumer, and that the defendant should account for the money to the plaintiff. The court further ordered that some of the causes of action were dismissed, but that others could proceed as a representative action. The court did not make any further orders.

Orders