XERRI v KINGMILL PTY LTD (T/as THRIFTY CAR RENTALS) [1998] NSWCA 269

XERRI v KINGMILL PTY LTD (T/as THRIFTY CAR RENTALS) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and STEIN JJA 24 February 1998

[1998] NSWCA 269

Sheller and Stein JJA Pursuant to s102 (2) (h) of the Supreme Court Act 1970 the claimant, John Xerri, applies by summons to extend the time to apply for leave to appeal by fourteen days and for leave to appeal from a decision of Sully J of 24 October 1997. Sully J had before him an appeal by way of stated case from a decision of a Local Court Magistrate brought pursuant to the provisions of Division | Pt5 of the Justices Act 1902. In those proceedings the claimant was the appellant and the opponent, Kingmill Pty Ltd (trading as Thrifty Car Rentals), the respondent. His Honour dismissed the appeal with costs.

The proceedings arose out of a collision which occurred on 13 August 1992 between a motor vehicle owned and driven by the claimant and a Mitsubishi motor vehicle owned by the opponent and driven by Charles Azzi, who died as a result of the collision. The claimant sued the opponent to recover $39,800, the cost of repairing his motor vehicle, relying upon s51(1) of the Insurance Contracts Act 1984 (C'th). He alleged that the deceased was the insured under a contract of liability insurance with the opponent, whereunder the opponent had agreed to indemnify the deceased against liability to pay damages to the claimant for damage caused to his property during the term of the contract of insurance by use of the Mitsubishi. The Magistrate found that the deceased "caused the motor vehicle collision which occurred between the Mitsubishi and the Plaintiff's vehicle in that the deceased breached provisions of the Motor Traffic Act and/or Motor Traffic Regulations." A question for consideration by Sully J was whether the Magistrate had erred in law in failing to hold that the Insurance Contracts Act imposed a liability upon the opponent to pay damages to the claimant as a result of the collision.