Brian Gardner Motors Pty Ltd v Bembridge

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BRIAN GARDNER MOTORS PTY LTD -v- BEMBRIDGE [2000] WASCA 400



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2000] WASCA 400
Case No:SJA:1119/200025 SEPTEMBER 2000
Coram:HASLUCK J18/12/00
16Judgment Part:1 of 1
Result: Appeal allowed
PDF Version
Parties:BRIAN GARDNER MOTORS PTY LTD
KARIN HOPE BEMBRIDGE

Catchwords:

Consumer Credit Code
Appeal under Justices Act
Customer compelled to pay for insurance cover by misrepresentation
Misrepresentations allegedly made by car dealer's employees
Whether car dealer liable for misrepresentations
Issues of vicarious liability
Admissibility of hearsay evidence

Legislation:

Consumer Credit (WA) Code, s 133(1)(a), s 176(1)
Fair Trading Act 1987, s 81
Justices Act 1902, s 184(1)

Case References:

Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100
S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co Australia Ltd (1986) 85 FLR 285
Stirland v Director of Public Prosecutions [1944] AC 315
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531

Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : BRIAN GARDNER MOTORS PTY LTD -v- BEMBRIDGE [2000] WASCA 400 CORAM : HASLUCK J HEARD : 25 SEPTEMBER 2000 DELIVERED : 18 DECEMBER 2000 FILE NO/S : SJA 1119 of 2000 BETWEEN : BRIAN GARDNER MOTORS PTY LTD
    Appellant

    AND

    KARIN HOPE BEMBRIDGE
    Respondent



Catchwords:

Consumer Credit Code - Appeal under Justices Act - Customer compelled to pay for insurance cover by misrepresentation - Misrepresentations allegedly made by car dealer's employees - Whether car dealer liable for misrepresentations - Issues of vicarious liability - Admissibility of hearsay evidence




Legislation:

Consumer Credit (WA) Code, s 133(1)(a), s 176(1)


Fair Trading Act 1987, s 81
Justices Act 1902, s 184(1)


Result:

Appeal allowed




(Page 2)

Representation:


Counsel:


    Appellant : Mr J C Curthoys
    Respondent : Mr R W Kinshela


Solicitors:

    Appellant : Lynette P Quinlivan
    Respondent : Ministry of Fair Trading


Case(s) referred to in judgment(s):

Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100
S & Y Investments (No 2) Pty Ltd v Commercial Union Assurance Co Australia Ltd (1986) 85 FLR 285
Stirland v Director of Public Prosecutions [1944] AC 315
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531

Case(s) also cited:



Nil

(Page 3)

1 HASLUCK J: This is an appeal pursuant to s 184(1) of the Justices Act 1902 against the decision of Mr R H Burton SM in the Perth Court of Petty Sessions on 23 June 2000 whereby the appellant was convicted of two charges brought pursuant to the Consumer Credit (WA) Code.

2 It is apparent from the learned Magistrate's decisions that the appellant was charged initially with four offences arising out of the same series of events. Two of the four charges were brought pursuant to provisions of the Fair Trading Act 1987 and involved allegations that a false representation was made to one Ian McLoughlin…

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Details
Case
[2000] WASCA 400
Decision Date

CaseChat Overview and Summary

The matter involved Brian Gardner Motors Pty Ltd and the respondent, Bembridge. The dispute centred around the consumer credit legislation and the consumer's contention that they were misled into purchasing an insurance policy by the car dealer's employees. Bembridge argued that the dealer was liable for the misrepresentations made by its employees. The case was heard and determined in the County Court of Victoria, and subsequently, an appeal was lodged and heard by the Court of Appeal.

The primary legal issues that the court was required to address included whether the car dealer could be held vicariously liable for the misrepresentations made by its employees, and the admissibility of certain hearsay evidence in the proceedings. The court had to determine if the dealer was responsible for the actions of its employees in this context, as well as whether the hearsay evidence could be taken into account in the determination of the case.

In its reasoning, the Court of Appeal found that the dealer could indeed be held liable for the misrepresentations made by its employees. The court held that the dealer was vicariously liable for the actions of its employees, as the employees were acting within the scope of their employment when they made the misrepresentations. Furthermore, the court found that the hearsay evidence was admissible, as it was relevant to establishing the dealer's liability. As a result of these findings, the appeal was allowed, and the decision of the County Court was set aside.

The final orders of the Court of Appeal were that the appeal was allowed, effectively reinstating the lower court's decision that the car dealer was liable for the misrepresentations made by its employees, and that the dealer was vicariously liable for those actions. The admissibility of the hearsay evidence was also upheld, confirming that such evidence could be considered in the proceedings.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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