Anthony Developments P/L v Marsden [1999] NSWSC 472

[1999] 29 MVR 262 Reported Decision : [1999] 10 ANZ Ins Cas 61-456 [1999] Aust Contract R 90-102

New South Wales Supreme Court CITATION : Anthony Developments P/L v Marsden [1999] NSWSC 472 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 10810/99 HEARING DATE(S) : 17/05/99 JUDGMENT DATE : 25 May 1999

PARTIES : Anthony Developments Pty Limited t/as Cut-Price Rent-A-Car (Appel) Geoffrey Arthur Marsden (Resp) JUDGMENT OF : Kirby J

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 13163/97 LOWER COURT JUDICIAL OFFICER : G Henson

COUNSEL : M Vincent (Appel) M W Young (Resp) SOLICITORS : Newman & Associates (Appel) A S Laumberg (Resp) CATCHWORDS : Appeal against Magistrate's decision; Stated Case; Anshun estoppel Port of Melbourne Authority v Anshun P/L (1980-81) 147 CLR 589 CASES CITED : Henderson v Henderson (1843) 67 ER 313 Rahme v Commonwealth Bank of Australia (C of A, unreported, 20/12/91) Green v Schneller (Simpson J, unreported, 12/1/99) DECISION : See para 28

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Tuesday 25 May 1999

10810/99 - ANTHONY DEVELOPMENTS PTY LIMITED T/as CUT-PRICE RENT-A-CAR v GEOFFREY ARTHUR MARSDEN

JUDGMENT

1 HIS HONOUR: This matter comes before the Court by way of case stated by Mr G Henson, Local Court Magistrate. 2 Mr Geoffrey Marsden hired a car from Anthony Developments Pty Limited, trading as Cut-Price Rent-A-Car (Cut-Price Rent-A-Car). At the time of the hire, Mr Marsden signed a hire agreement. The terms of that agreement are not included in the stated case. 3 At the time the car was hired, Mr Marsden sought to have the vehicle insured whilst the vehicle was on hire. He paid an additional amount to this end. 4 On 1 November 1994, Mr Marsden was involved in an accident with another vehicle driven by a Mr Handley. 5 Mr Handley commenced proceedings in the Local Court claiming the cost of the car repairs (approximately $5,352) plus costs. The claim named Cut-Price Rent-A-Car as first defendant, and Mr Marsden as the second. The statement of claim apparently asserted, as the basis of liability of the hire company, that it was the owner of the vehicle (as it was), and having hired the vehicle, Mr Marsden was its agent. Mr Marsden, however, was plainly not the hire company's agent, and the claim against the hire company was bound to fail. 6 Mr Marsden, naturally, sought from Cut-Price Rent-A-Car the name of the insurer. Cut-Price Rent-A-Car, surprisingly, and unhelpfully, refused to identify that insurer. In those circumstances, Mr Marsden, recognising that he was responsible for the collision, proceeded to settle the plaintiff's claim. The terms of settlement were filed on 17 June 1997. He was required to pay approximately $9,000, being the cost of repairs and costs. 7 Again Mr Marsden sought the name of the insurer from Cut-Price Rent-A-Car. Again that company declined to provide that information. This material was not included in the facts stated by the learned Magistrate, but was common ground before me. 8 Mr Marsden, in these circumstances, began an action against Cut-Price Rent-A-Car in the Local Court. The terms of his claim do not form part of the stated case. However, the broad basis was described by the learned Magistrate in the following paragraph: "On 25 July 1997 the current proceedings were commenced by the Respondent alleging that the Appellant was obliged by an express term in the contract of hire to, in the event of an accident and subsequent claim, disclose to the Respondent, the identity of the insurer of the vehicle for the purpose of indemnification under a comprehensive insurance policy over the hired vehicle." 9 The proceedings first went to arbitration. One gathers that the arbitrator determined the matter against Cut-Price Rent-A-Car. The company thereafter sought, as was its right, a rehearing before the Local Court. 10 The matter came before Mr Henson, a Magistrate, on 10 August 1998. Cut-Price Rent-A-Car sought to amend its defence in order to raise an estoppel. It asserted that Mr Marsden was estopped from pursuing his claim, having not sought indemnity under the insurance arrangements in the original proceedings brought by Mr Handley. The estoppel was said to arise under the principle enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Limited (1980-81) 147 CLR 589. The learned Magistrate dealt with the issue as a preliminary matter. He determined that there was no estoppel. There was, accordingly, no entitlement to a permanent stay. The matter then proceeded, and the merits were investigated. The learned Magistrate decided in favour of Mr Marsden.