Nominal Defendant v Morgan Cars Pty Ltd [1974] HCA 16

High Court of Australia Barwick C.J. McTiernan, Menzies, Stephen and Mason JJ. Nominal Defendant v Morgan Cars Pty Ltd [1974] HCA 16

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Barwick C.J.

I have had the advantage in these appeals of reading the reasons for judgment prepared by my brother Menzies. I agree with him that the appeals should be dismissed. I am in accord with his conclusion that to succeed in his claim against the respondent the appellant had need for the reasons my brother gives to establish that the respondent at the time of the occurrence was the owner of the car according to the definition of owner in s. 5 of the Motor Vehicles (Third Party Insurance) Act, 1942-1965. I agree that the nominal defendant did not do so. But I would be content to rest that conclusion, as did Jacobs J.A. and Taylor A.J.A. in the Supreme Court, merely on the absence of any demand by Morgans for the return of the car without deciding that the contract of hire gave Morgans a right at any time without cause or reason to demand that the car under hire be returned by the renter to the respondent's Brisbane address. It would, in my opinion, be a strange contract in a business sense which so provided, particularly if the hire charges had been prepaid and no provisions were made for any reimbursement to the person hiring the car. Rather, I should think that to give business sense to the provision for a return on demand, the contract should be construed as giving the right to demand the return of the car only when there was some cause under or within the contract for its return. However, I prefer the course taken by Jacobs J.A. in the Supreme Court in leaving this question of construction undecided, a decision not being necessary to the resolution of the case. On either view of the contract a demand by Morgans was necessary before the right to possession would have reverted to it.