PARASS v BURENCAR PTY LIMITED (IN LIQ.) formerly known as BUDGET RENT A CAR SYSTEM PTY LIMITED [1996] NSWCA 420

PARASS v BURENCAR PTY LIMITED (IN LIQ.) formerly known as BUDGET RENT A CAR SYSTEM PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 23 February 1996 [1996] NSWCA 420

CONTRACT — rental agreement — liability — damage to property — whether estoppel by misrepresentation

Sheller JA. The appellant, Nicholas Emanuel Parass, appeals from a decision of Kirkham DCJ of 14 February 1992 in proceedings which the respondent, Budget Rent a Car System Pty Limited, brought against him to recover for damage to a twenty seater bus the respondent hired to Mr Parass on 23 August 1986. Kirkham DCJ gave judgment for the respondent in a total amount of $33,026 which included interest.

The facts of this case are straight forward. The respondent owned the bus. The contract of hire was in writing. The appellant was described as the renter in the contract. The term of hire was for one month. The terms of the written agreement included cl 5 which relevantly provided that the renter agreed:

(a) That no person other than the renter is authorised to drive the vehicle without the written consent of the owner ....

(k) To reimburse the owner for any loss including legal cost(s) incurred relating to a breach of the renter's obligations and to indemnify the owner against any liability arising out of a breach of the renter's obligations.'

On 1 September 1986 while the bus was being driven by someone other than the renter, Mr Parass, it collided with another vehicle and was seriously damaged. The damages to compensate for this were agreed at $18,353. The respondent began proceedings in the District Court on 26 February 1988 to recover this amount.

The appellant filed a notice of grounds of defence in which he alleged that the plaintiff had made a representation to him which he asserted gave rise to an estoppel or alternatively that there was an implied term in the agreement that persons other than Mr Parass were authorised by the plaintiff to drive the motor vehicle without its written consent. In both cases I have summarised the form of the defence which was particularised in greater detail.