However Lord Goff was unequivocal : " even if part of the capital sum had been repaid, the law would not hesitate to hold that the balance of the loan outstanding would be recoverable on the ground of failure of consideration; for at least in those cases in which apportionment can be carried out without difficulty, the law will allow partial recovery on this ground ( see " David Securities Pty Ltd v Commonwealth Bank of Australia " ( 1992 ) 175 CLR 353, 383 ) ."
42.
If " Sinclair v Brougham ", in both its aspects, is overruled the law can be established in accordance with principle and commercial common sense : a claimant for restitution of monies paid under an ultra vires, and therefore void, contract has a personal action at law to recover the monies paid as on a total failure of consideration; he will not have an equitable proprietary claim which gives him either rights against third parties or priority in an insolvency; nor will he have a personal claim in equity, since the recipient is not a trustee.
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