Esanda Finance Corporation Ltd v Plessnig [1989] HCA 7

High Court of Australia Wilson, Brennan, Deane, Toohey and Gaudron JJ. Esanda Finance Corporation Ltd v Plessnig [1989] HCA 7

ORDER Appeal allowed. Set aside the judgment of the Full Court of the Supreme Court of South Australia dated 20 August 1987 and in lieu thereof order that the appeal to that Court be dismissed with costs. Order that the appellant pay the respondents' costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1989, Feb. 9 Wilson and Toohey JJ.

In April 1982 the appellant advanced the finance necessary to enable the respondents to acquire possession of a secondhand Scania prime mover which was for sale for a cash price of $44,000. Initially, the respondents sought finance over a four year period but were told by an officer of the appellant that because of the age of the vehicle the money would only be available over a three year term. The transaction was completed by the execution of a hire-purchase agreement between the appellant as owner and the respondents as hirers. The total rent, payable by thirty-six monthly instalments each of $1,878.78, amounted to $67,636.08. The last-mentioned figure was reached by taking the cash price of $44,000 and adding $792.00 stamp duty and terms charges of $22,844.08.

The respondents acquired the vehicle with a view to engaging in the transport industry. Unfortunately, they encountered difficulties in the conduct of their business, including the cost of repairing and maintaining the vehicle and recovering moneys owing to them by consignors. They failed to pay the monthly instalments of rent due in June, July and August 1983. On 16 September 1983 the respondents delivered the prime mover to a location nominated by the appellant. In the courts below the parties were at issue over the question whether the vehicle was voluntarily returned by the respondents (as contended for by the appellant) or repossessed by the appellant (as contended for by the respondents). That issue was resolved against the appellant and is not in contest in this appeal. On termination, the appellant called for tenders for the purchase of the vehicle and it was sold for $27,000.