BMW Australia Finance Pty Ltd v Morehuman Erskineville Pty Ltd & Bayni [2011] NSWDC 15

District Court New South Wales

Medium Neutral Citation: BMW Australia Finance Pty Ltd v Morehuman Erskineville Pty Ltd & Bayni [2011] NSWDC 15 Hearing dates: 17, 18, 19 August, 26 November 2010 Decision date: 25 March 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1. Verdict and judgment for the defendants on the plaintiff's claim 2. The cross claim is dismissed 3. The plaintiff is to pay the costs of the defendants in respect of the plaintiff's claim and the cross claim on the ordinary basis unless otherwise ordered 4. The exhibits may be returned 5. Liberty to apply for further orders on 7 days notice unless otherwise ordered. Catchwords: CONTRACT - contract for hire purchase of a motor vehicle - guarantee of that contract - whether enforceable where fraud by a third party - motor vehicle did not exist - whether contract could be performed or was frustrated - consequences for the parties; ESTOPPEL - whether hirer or guarantor estopped from denying existence of a non-existent motor vehicle after providing financier with an acknowledgment that the motor vehicle had been inspected - whether financier could acquire ownership of a non-existent motor vehicle and make it the subject of a hire purchase agreement - extent of application of the principle of nemo dat quod non habet Legislation Cited: Frustrated Contracts Act 1978, ss 13(1), 15, 15(1), 15(1)(b), 15(2) Trade Practices Act 1974 (Cwth), ss 52, 75B, 82 Cases Cited: Air Tahiti Nui Pty Limited v McKenzie [2009] NSWCA 429 Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR 218 March v Stramare (1992) 175 CLR 514 Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 Toll (FGCT) Pty Limited v Alphapharm Pty Ltd & Ors [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: BMW Australia Finance Pty Ltd (Plaintiff) Morehuman Erskineville Pty Ltd (First defendant) Salman Ghassan Bayni (Second defendant) Representation: Counsel: Mr R Beasley (Plaintiff) Mr M Gracie with Mr D Neggo (Defendants) Solicitors: Bartier Perry (Plaintiff) Spinks Legal (Defendants) File Number(s): 777 of 2008 2008/315535