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. The learned trial judge regarded himself as required to determine a preliminary matter about the terms of a conversation between Mr Parass and Mr Armstrong, a clerk in the plaintiffs employ, said to have taken place at the time the written terms of agreement were signed by Mr Parass. In his evidence Mr Armstrong said that he asked Mr Parass 'Will there be someone else driving the vehicle', to which Mr Parass answered 'Could be'. Mr Armstrong replied that he must see their JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:20:24 2008 /reports/caseml]/case/urj/9607902 UNREPORTED JUDGMENTS licences, to which the defendant was said to have responded 'In that case I will be the only one driving'. Mr Parass gave a different version of this conversation. The gravamen of the difference was Mr Parass" assertion that after he had said that there could bepersons other than himself on the bus, and that they were licensed, Mr Armstrong had said 'as long as they are licensed it is okay'. Kirkham DCJ came to the conclusion that Mr Parass had reconstructed his evidence and for reasons that his Honour gave, having seen the witnesses, preferred and accepted Mr Armstrong's account. The appellant filed a notice of appeal setting out four substantive grounds. Mr Jordan, who appeared for the appellant, abandoned the fourth ground and concentrated on the first three. His argument was put in two ways. First it was said that his Honour erred in preferring Mr Armstrong's account of the conversation to that of Mr Parass. Mr Jordan advanced a number of considerations in favour of this ground to which I have listened and paid attention. However, it has been said more than once in the High Court that there are very limited occasions in which this Court can interfere with a finding of a trial judge which depends, to any substantial degree, on the credibility of witnesses who have given evidence before that judge. In the language of three members of the High Court in Deveries v Australian National Railways Commission (1993) 177 CLR 474 at 479: The finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. In my opinion none of these tests is satisfied. The case was a simple one in which two accounts were given, one by the agent of the plaintiff, the other by the defendant, and his Honour, having heard those witnesses, preferred the plaintiff's version. The second ground of appeal stemmed from what was said to have been a misrepresentation made by Mr Armstrong to the plaintiff according to the account of the conversation which Mr Armstrong gave as follows: Q. What conversation occurred prior to that? A. Mr Parass mentioned there was a party of Greeks coming out to Australia and that he would be taking or that there would be a tour of Northern Australia, Queensland, the Northern Territory, and that he needed a vehicle for that for about three weeks, and that to me was a fairly long period. What did you say to him when he told you that? A. I asked him would there be a joint renter, someone else driving the vehicle. What words did you use? A. "Someone else driving the vehicle". What did he say to that? A. He said, "There could be". Did you respond to that? A. Yes. What did you say? A. "I must see their licence". Did you say anything else to him concerning that? A. At that time we would have said that we didn't have to see it on the day, but before anyone else drove the vehicle that their licence would have to be shown. Q. What did he say to that? A. It just became a little bit too complicated for him. He said he would be the only one driving the vehicle. ©CLLELE 0 JOBNAME: No Job Name PAGE: 3 SESS: 1 OUTPUT: Mon Feb 25 18:20:24 2008 /reports/caseml]/case/urj/9607902 UAARASS v BURENCAR PTY LIMITED (IN LIQ.) formerly known as BUDGET RENT A CAB SYSTEM PTY LIMITED (Meagher JA) Q. Can you use the words he used, as best you can recollect? A. "In that case I will be the only one driving". Mr Jordan, who I might say advanced every argument that could reasonably be put on behalf of his client, submitted that the statement by Mr Armstrong, that before anyone else drove the vehicle their licence would have to be shown, was a misrepresentation because it did not accord with the requirements of the written contract. In my opinion this statement, taken in the context of the conversation which I have quoted, was obviously part of a discussion of whatwas necessary before the plaintiff would consider consenting to some person other than Mr Parass driving the vehicle. The matter having been raised, Mr Parass said 'In that case I will be the only one driving'. That having been said, further negotiation came to an end and the contract remained unaltered in the written form as we have it. In my opinion there was no misrepresentation in what Mr Armstrong said. From what I have said it will be plain that both grounds advanced by Mr Jordan in support of the appeal fail and that, accordingly, the appeal should be dismissed with costs. Meagher JA. Despite Mr Jordan's best endeavours I also am of the view that the appeal should be dismissed with costs and I agree with the judgment of Sheller JA. Powell JA. Mr Jordan, who has argued the matter on behalf of the appellant 25 in very difficult circumstances, has said all that can be said on behalf of the appellant but, as Sheller JA has demonstrated in the reasons which he has given, the appeal was always hapless. I agree that the appeal should be dismissed with costs. 30 Meagher JA. The order of the Court, therefore, is the appeal is dismissed with costs. Orders accordingly. 35 Counsel for the appellant: J Jordan (Solicitor) Solicitors for the appellant: James Jordan Counsel for the respondent: D J Hammerschlag Solicitors for the respondent: Gells