Intertransport International Private Ltd & Anor v Donaldson & Anor

[2005] VSCA 303

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Restitution
2. › Total failure of consideration
3. › Money had and received
4. › Whether mere breach of contract constitutes total failure of consideration
5. › Whether non-delivery of goods under executory contract gives rise to right of repayment
6. › Whether contract must be rescinded before restitutionary claim arises
1. Practice and Procedure
2. › Duty to give reasons for decision
3. › Adequacy of reasons
4. › Whether reasons so inadequate as to vitiate decision
5. › Whether reasons necessarily implicit in judgment
1. Evidence
2. › Failure to call witnesses
3. › Adverse inference
4. › Whether adverse inference can be drawn from failure to call relevant witnesses without explanation
5. › Jones v Dunkel principle

Quick Take

Mere non-delivery of goods under an executory contract that has not been discharged by breach probably does not constitute a total failure of consideration giving rise to a restitutionary claim for money had and received. A party seeking restitution must ordinarily first rescind the contract. Judicial reasons that are brief may be adequate if the reasoning is necessarily implicit in the judgment having regard to the evidence and circumstances of the case.