Cauvin v Philip Morris Limited and Ors [2002] NSWSC 528

Cauvin v Philip Morris Limited and Ors [2002] NSWSC 528

The plaintiff's case for an interlocutory injunction is extremely weak because the sums recovered by wholesalers were not impressed with any trust or obligation to consumers, the issues have already been decided between wholesalers and retailers in Roxborough, there is little to no evidence that individual consumers can be identified as having a claim, and the balance of convenience does not support preventing wholesalers from discharging their High Court-confirmed obligations to retailers.

Parties
Plaintiff: Myriam Cauvin; First Defendant: Philip Morris Limited; Second Defendant: Philip Morris (Australia) Limited; Third Defendant: British American Tobacco Australia Services; Fourth Defendant: W.D. & H.O. Wills Holdings Limited; Fifth Defendant: British American Tobacco Australasia Limited; Sixth Defendant: British American Tobacco Australia Limited; Seventh Defendant: Coles Supermarkets Pty Limited; Eighth Defendant: Coles Myer Limited; Ninth Defendant: Darren Johnston Barker; Tenth Defendant: Gina Joanne Barker
Jurisdiction
Australia
Judgment Date
13 June 2002
Procedural Posture
Class Action / Interlocutory (application for Interlocutory Injunction)
Outcome
Plaintiff's Notice of Motion dismissed.
Legal Topics
Interlocutory Injunction, Class Action, Restitution, Unjust Enrichment, Unconscionable Conduct
Equity Trade Practices Interlocutory Injunction Class Action Restitution Unjust Enrichment Unconscionable Conduct

Case Brief

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Parties

Myriam Cauvin

Plaintiff

Philip Morris Limited

First Defendant

Philip Morris (Australia) Limited

Second Defendant

British American Tobacco Australia Services

Third Defendant

W.D. & H.O. Wills Holdings Limited

Fourth Defendant

British American Tobacco Australasia Limited

Fifth Defendant

British American Tobacco Australia Limited

Sixth Defendant

Coles Supermarkets Pty Limited

Seventh Defendant

Coles Myer Limited

Eighth Defendant

Darren Johnston Barker

Ninth Defendant

Gina Joanne Barker

Tenth Defendant

Procedural Posture

Class Action / Interlocutory (application for Interlocutory Injunction)

Legal Issues

  1. 1 Whether the plaintiff representing cigarette purchasers is entitled to an interlocutory injunction restraining wholesalers from repaying invalid tax amounts to retailers pending trial
  2. 2 Whether the plaintiff has a strong case against the wholesalers for money had and received, unjust enrichment, or unconscionable conduct

Ratio Decidendi

The plaintiff's case for an interlocutory injunction is extremely weak because the sums recovered by wholesalers were not impressed with any trust or obligation to consumers, the issues have already been decided between wholesalers and retailers in Roxborough, there is little to no evidence that individual consumers can be identified as having a claim, and the balance of convenience does not support preventing wholesalers from discharging their High Court-confirmed obligations to retailers.

Court Disposition

Plaintiff's Notice of Motion dismissed.

Orders

  • Plaintiff's application for an interlocutory injunction is refused.