So far as incorporation of the exclusion clause went, he held that the contract was made on 6 December, so no new terms could be introduced when the balance of the cruise fare was paid.

Thus at virtually the last moment, the plaintiff's plans for a cruising holiday could have been unilaterally terminated although she had paid the full passage money.

I should specifically mention that I do not consider the statement in the booking form that- These conditions and regulations are available to all passengers at any CTC Cruises offices... was sufficient to discharge the obligation which rested upon the defendant in this regard.See The Eagle.

For the sake of completeness reference should be made to the following statement in the brochure: All bookings are subject to CTC Cruises' terms and conditions.

Even so, the statement in the brochure was insufficient, in my view, to bring to the attention of the plaintiff the limitation clauses contained in the ticket terms and conditions.

Another important point was that Mrs Dillon was not allowed to recover the balance of the fare and damages for breach of contract at the same time.

By cl.12 of her further amended writ of summons in personam, the respondent claimed: "return of the full fare in the sum of $2,205.00 as for a total failure of consideration".

Kirby P,[3]: 26  with whom Gleeson CJ agreed on this point,[3]: 7  noted that the appellant had urged that there was no total failure of consideration as "(t)he respondent had had the benefit of eight of fourteen days of an idyllic cruise."

'"[3]: 26 He then observed that, in order to avoid over-compensation, a claim for restitution of money paid on a total failure of consideration will succeed only if accompanied by counter-restitution of benefits bargained for and received by the claimant.

In support of this contention, the appellant submits that there was not a total failure of consideration arising from the fact that the contract of carriage was entire.

In Steele v Tardiani,[6] Dixon J. cited the general proposition stated in Edward Vaughan Williams's Notes to Saunders:[7] "Where the consideration for the payment of money is entire and indivisible, as where the benefit expected by the defendant under the agreement is to result from the enjoyment of every part of the consideration jointly, so that the money payable is neither apportioned by the contract, nor capable of being apportioned by a jury, no action is maintainable, if any part of the consideration has failed; for, being entire, by failing partially, it fails altogether.

The concept of an entire contract is material when a court is called upon to decide whether complete performance by one party is a condition precedent to the other's liability to pay the stipulated price or to render an agreed counter-performance.

When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contract-breaker of its obligations under the contract and the contract-breaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration.

[9][10] If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected under the contract, there will not be a total failure of consideration.

Though unwilling or unable to take delivery, the plaintiff succeeded in recovering the payment, notwithstanding that Stable J held that there was not a total failure of consideration.

The statement also accords with the point made by Dixon J. in McDonald v Dennys Lascelles Ltd, where he said: "When a contract stipulates for payment of part of the purchase money in advance, the purchaser relying only on the vendor's promise to give him a conveyance, the vendor is entitled to enforce payment before the time has arrived for conveying the land; yet his title to retain the money has been considered not to be absolute but conditional upon the subsequent completion of the contract.

The consequence of the respondent's enjoyment of the benefits provided under the contract during the first eight full days of the cruise is that the failure of consideration was partial, not total.

I do not understand how, viewed from the perspective of failure of consideration, the enjoyment of those benefits was "entirely negated by the catastrophe which occurred upon departure from Picton",[2]: 668  to repeat the words of the primary judge.

In order to illustrate the magnitude of the step which the respondent asks the Court to take, it is sufficient to pose two questions, putting to one side cl.9 of the printed ticket terms and conditions.

This rule, although it has been said to be a stipulation introduced into such contracts by custom and not the result of applying some abstract principle,[26] would certainly exclude a restitutionary claim on facts analogous to those in the present case.

If you engage a driver to take you to the station to catch a train for a day trip to the sea, you pay him 2 pounds – and then the car breaks down owing to his negligence.

Prepayments can, in general, be recovered, but the position of deposits or earnests is not entirely clear, the better view being that they are not recoverable if paid to provide a sanction against withdrawal.

In 1846, when Pollock CB held in Walstab v Spottiswoode that it was not possible to combine a claim for damages with one for restitution, the restitutionary action was brought on the writ of indebitatus assumpsit,[42] was essentially a procedural development, simplifying recovery and providing a more convenient or more summary remedy).

The action was, as Lord Mansfield said in Moses v Macferlan,[44] "quasi ex contractu" and founded on an obligation imposed by law and accommodated within the system of formal pleading by means of the fictitious assumpsit or promise.

The abolition of the forms of action inspired an analysis of the sources of obligation in the common law in terms of a rigid dichotomy between contract and tort.

The first is the competition in the latter part of the sixteenth century between the judges of the King's Bench and those of the Common Pleas as to the relationship between debt and assumpsit .

[47] While the precise contemporary import of the decision is a matter of controversy,[48] it was taken in the seventeenth century as deciding that indebitatus assumpsit lay as well as debt to recover sums due under a contract in the absence of an express subsequent promise to pay.

[49] The assumpsit or promise was founded "not upon any fiction of law, but upon an interpretation of facts by the court which led it to the genuine conclusion that the parties had actually agreed (to make the payment)".

The Court held that indebitatus assumpsit lay to recover the profits received by the defendant after the grant of the office to the plaintiff.

In Holmes v Hall[53] Holt CJ refused to nonsuit the plaintiff who sued on an indebitatus assumpsit to recover moneys he paid as executor to the defendant who held certain writings of the testator.