O'Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3

High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Deane JJ. O'Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Western Australia set aside and in lieu thereof order as follows:

(1) That the appeal to that court be allowed with costs;

(2) That the judgment of Wallace J. be set aside and in lieu thereof order that judgment be given in favour of the plaintiff against the third and fourth-named first defendants and the second defendant in an amount to be assessed, with no order as to costs of the hearing already heard before Wallace J.

(3) That the matter be remitted to a single judge of the Supreme Court of Western Australia to enable him to decide such questions as may be raised by the parties in relation to the recovery of instalments of rent due before the retaking of possession, the assessment of any damages and payment of interest and to fix the amount to be assessed (which will include the sum of $7,033.32 and any interest thereon).

Cur. adv. vult.

The following written judgments were delivered:—

1983, Feb. 17 Gibbs C.J.

By an agreement in writing made on 13 April 1977 the first respondent, Allstates Leasing System (W.A.) Pty. Ltd. (in the agreement called "the Lessor") leased to Mr. and Mrs. O'Dea and Mr. and Mrs. Granich, who, together, traded as cartage contractors under the name of Granich Geraldton (in the agreement called "the Lessee"), a Mercedes Benz prime mover for a period of thirty-six months. No right was given to the lessee to buy the vehicle and the agreement stated that it was not intended to be a hire purchase agreement (cl. 17). Clause 1(a) of the agreement stated that the lessor leased to the lessee and the lessee took on lease the vehicle:

upon the terms and conditions hereinafter contained for a period of 36 months at an entire rental of $39,550.32 which shall be due by the Lessee to the Lessor upon the signing of this Agreement provided that if the Lessee shall duly observe and perform all and singular the covenants and conditions on the part of the Lessee herein contained or implied and if the Lessee shall duly and punctually pay on account of such entire rent the following instalments on the days following namely: