Cauvin v Philip Morris Limited [2002] NSWSC 736

Cauvin v Philip Morris Limited [2002] NSWSC 736

Consumers cannot recover a component of the tobacco purchase price reflecting an invalid licence fee where there is no identification or separation of that component in the retail price; in the absence of such identification, restitution, failure of consideration, subrogation, constructive trust and unconscionable conduct claims must be dismissed. Only a claim for unjust enrichment, if repleaded adequately, may survive as between the consumer and the relevant retailers, but not as a representative action nor against wholesalers.

Jurisdiction
Australia
Judgment Date
22 August 2002
Procedural Posture
Civil Equity / Interlocutory Judgment on Motions to Dismiss/strike Out and for Representative Action Orders
Outcome
Plaintiff's claims (save for limited unjust enrichment claim against seventh and eighth defendants if repleaded) dismissed. Action not to proceed as a representative proceeding. Costs awarded to defendants.
Legal Topics
['money Had and Received' 'failure of Consideration' 'unjust Enrichment' 'constructive Trust' 'representative Proceedings' 'trade Practices Act – Unconscionable Conduct' 'class Actions' 'practice and Procedure—strike Out']
['restitution' 'trusts' 'consumer Protection' 'equity' 'practice and Procedure'] ['money Had and Received' 'failure of Consideration' 'unjust Enrichment' 'constructive Trust' 'representative Proceedings' 'trade Practices Act – Unconscionable Conduct' 'class Actions' 'practice and Procedure—strike Out']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Equity / Interlocutory Judgment on Motions to Dismiss/strike Out and for Representative Action Orders

Legal Issues

  1. 1 ['Whether consumers can recover a component of the cigarette purchase price reflecting an invalid licence fee paid by retailers to wholesalers where not separately identified' 'Whether there is a basis for constructive trust or equitable charge over funds held by wholesalers or retailers' 'Whether retailers or wholesalers are unjustly enriched at expense of consumers' 'Whether the action can proceed as a representative action against defined groups of retailers and wholesalers' 'Whether there is actionable unconscionable conduct under Trade Practices Act' 'Whether pleadings disclose a cause of action']

Ratio Decidendi

Consumers cannot recover a component of the tobacco purchase price reflecting an invalid licence fee where there is no identification or separation of that component in the retail price; in the absence of such identification, restitution, failure of consideration, subrogation, constructive trust and unconscionable conduct claims must be dismissed. Only a claim for unjust enrichment, if repleaded adequately, may survive as between the consumer and the relevant retailers, but not as a representative action nor against wholesalers.

Court Disposition

Plaintiff's claims (save for limited unjust enrichment claim against seventh and eighth defendants if repleaded) dismissed. Action not to proceed as a representative proceeding. Costs awarded to defendants.

Orders

  • ["Plaintiff's notice of motion dismissed with costs" 'Claims in paragraphs 2D, 2F, 2G, 2H, 2I and 2K of amended statement of claim dismissed' 'Claim against all defendants other than seventh and eighth defendants dismissed' 'Action not to proceed as a representative action' 'Balance of the amended statement of claim...