Scott Fury trading as Fury Custom Boats v Nasso

The appeal of Scott Fury trading as Fury Custom Boats (Appellant) against the decision of the District Court of Western Australia (First Court) was dismissed by the Supreme Court of Western Australia (Court of Appeal). Stephen Nasso (Respondent) had sued the Appellant for the recovery of $115,400 paid under the contract for the design and construction of a custom‑made dual console fishing boat. The appeal grounds centred upon the conclusion by the learned trial judge that there had been a total failure of consideration entitling the Respondent to receive the $115,400 by way of restitution. The appeal was dismissed because the contract between the parties was one for the sale of a boat, rather than one for design and construction. The contract required that the whole of the purchase price be paid before the Respondent was entitled to take possession of the boat. There was no total failure of consideration because the Respondent had received some benefit for his payment: participation in the design of the boat. The Respondent had not received or retained any substantial part of the benefit expected under the contract. The appropriate remedy was restitution.