CENTRELEASE EQUIPMENT FINANCE PTY LTD v BULLOCK and ORS [1997] NSWCA 63

CENTRELEASE EQUIPMENT FINANCE PTY LTD v BULLOCK and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, POWELL and BEAZLEY JJA 29 April 1997, 29 April 1997 [1997] NSWCA 63

Negligence — Vicarious liability — Employee or independent contractor — Supervision — Control — Licensed commercial agent — Instructed to repossess leased equipment — Whether lessor of equipment liable for alleged negligence of commercial agent.

Powell JA The first two grounds which were taken in the Notice of Appeal filed on behalf of the Appellant ("Centrelease") - of which company a Mr Miller was, at all relevant times, the Collection Manager - in respect of a judgment delivered by Craigie DCJ on 29 March 1995 were as follows:

"(1) His Honour erred in law in finding that the relationship between the Appellant and the Third Respondent was such that the Appellant could be liable vicariously for the acts of the Third Respondent; and

(2) Having found that the Appellant could be liable vicariously for the acts of the Third Respondent, His Honour erred in finding such liability without first finding facts such as would make the Third Respondent primarily liable."

In the event, it appears to me, for the reasons which I will shortly record, that the appeal falls to be determined solely on the first of those two grounds of appeal.

The proceedings before his Honour were proceedings which were commenced by the filing of an Ordinary Statement of Claim, in which Statement of Claim the First Respondent, ("Mr Bullock'), sought to recover from Centrelease damages for what was alleged to be negligence on the part of Centrelease "by its own servants or agents", the particulars of which negligence which were assigned in the Statement of Claim, if I may with respect say so, being singularly unilluminating.

The facts which gave rise to the proceedings at first instance commence with the entry by a company known as Lachlan Valley Cordials Pty Ltd ("Cordials") - in which company Mr Bullock appears to have been the major shareholder, and of which company Mr Bullock appears to have been the principal director - of what is described as an Equipment Rental Plan ("the Agreement") (AB 181) relating to the hire by the Centrelease to Cordials of a "Hitachi Hifax 15" facsimile machine ("the machine"), that Agreement being for a term of some forty-eight months from 8 December 1987 unless earlier terminated.