Terry Hogan Prestige Cars Pty. Limited v. Opera Investments Pty. Limited [2006] NSWCA 139

New South Wales Court of Appeal

CITATION: Terry Hogan Prestige Cars Pty. Limited v. Opera Investments Pty. Limited [2006] NSWCA 139

HEARING DATE(S): 18 May 2006

JUDGMENT DATE: 2 June 2006

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 36; Basten JA at 37

DECISION: 1. Appeal allowed. 2. Judgment below set aside, and in lieu thereof judgment for the appellant and order that the respondent pay the appellant's costs of the proceedings. 3. Respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible.

CATCHWORDS: BAILMENT - Duty of bailee to take reasonable care of goods - Standard of care - Onus of proof - Mercedes car stolen from premises with high degree of physical security, being damaged in the process - Keys kept out of sight, but not locked - Whether bailee established that the theft and damage was not due to its negligence.

Hobbs v. Petersham Transport Co. Pty. Ltd. (1971) 124 CLR 220 CASES CITED: Jacap Low Loaders Pty. Limited v. Lindores Plant & Equipment Pty. Limited [2005] NSWCA 5 The Andrews Group Pty. Limited v. Tynan Motors Pty. Limited [2006] NSWCA 22 The State of New South Wales v. Zarafa [2005] NSWCA 187

PARTIES: Terry Hogan Prestige Cars Pty. Limited - appellant Opera Investments Pty. Limited - respondent

FILE NUMBER(S): CA 40551/05

COUNSEL: Mr. J. Miller for the appellant Mr. J. Gracie for the respondent

SOLICITORS: Swaab Attorneys, Sydney for appellant Gells Lawyers, Sydney for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 332/04

LOWER COURT JUDICIAL OFFICER: Dodd DCJ