Sydney City Council v West [1965] HCA 68

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Sydney City Council v West [1965] HCA 68

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 16 Barwick C.J. and Taylor J.

At about 8.20 a.m. on 15th December 1961 the respondent left his motor-car—registered number BYU 242—at the Domain Parking Station in a place indicated to him by an attendant and he has not seen it since. Shortly after 6 p.m. it was found to be missing from the place where it had been parked and it was said that a search of the station failed to discover it. Consequently it was not redelivered to him. The parking station was owned and operated by the appellant and in August 1962 the respondent commenced proceedings in a District Court in which he claimed to recover damages for the defendant's breach of an alleged promise "to safely keep and take care of the said motor vehicle whilst the same should be in the defendant's care and keeping as aforesaid, and to redeliver the same to the plaintiff on request". Additionally he sued the appellant in detinue and claimed a return of the car or, alternatively, its value. The action was heard before a jury but no issue of fact was left to them for at the conclusion of the evidence the learned District Court Judge directed a verdict for the appellant. In doing so he accepted the respondent's contention that the only conclusion open on the evidence was that the relationship created between him and the appellant was that of bailor and bailee and not merely that of licensee or licensor but he held that the contract of bailment contained a clause which, in the circumstances of the case, exonerated the appellant from liability. However upon appeal the Full Court of the Supreme Court took a different view of the effect of this clause and directed a new trial: West v. Sydney City Council [1] .