DISTRICT COURT OF QUEENSLAND
CITATION:
Carlin Auction Services (Qld) Pty Ltd v Gonchee & Anor [2004] QDC 086
PARTIES:
CARLIN AUCTION SERVICES (QLD) PTY LTD
Appellant/Second Defendant
v
IVAN GONCHEE
First Respondent/First Defendant
and
GREGORY JOHN CONDON
Second Respondent/Plaintiff
FILE NO/S:
D3341/03; M486/02
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Brisbane
DELIVERED ON:
4 May 2004
DELIVERED AT:
Brisbane
HEARING DATE:
13 April 2004
JUDGE:
McGill DCJ
ORDER:
Appeal dismissed, with costs. Time for filing the first respondent’s notice of contention extended to 17 December 2003.
CATCHWORDS:
NEGLIGENCE – Liability for other’s negligence – motor vehicle on test drive – whether owner liable.
MOTOR VEHICLES – Insurance – test drive – high excess on comprehensive insurance – whether implied term that excess be no more than reasonable.
CONTRACT – Consideration – test drive of vehicle for sale – whether consideration passing from drivers to owners.
CONTRACT – Implied Terms – test drive of vehicle for sale – whether implied obligation on owner that vehicle insured without unreasonable excess – damages.
Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706 – followed.
Perre v Apand Pty Ltd (1999) 198 CLR 180 – considered.
Reichardt v Shard (1914) 31 TLR 24 – followed.
Sampson v Aitchison [1912] AC 844 – followed.
Scott v Davis (2000) 204 CLR 333 – considered.
Valleyfield Pty Ltd v Primac Ltd [2003] QCA 339 – followed.
COUNSEL:
A K H Cooper for the appellant
R G Fryberg for the first respondentSOLICITORS:
Creswicks Lawyers for the appellant
Morgan Conley Solicitors for the first respondent
Hewlett & Co for the second respondent
This is an appeal from a decision of a magistrate following a trial of various claims arising out of a motor vehicle accident in which some property damage, but apparently no injuries, was suffered. The accident was a commonplace enough collision, but it has given rise to an interesting set of legal problems.
On 2 February 2001 a motor vehicle owned and driven by the plaintiff[1] came into collision at an intersection with a motor vehicle owned by the second defendant and driven by the first defendant. The magistrate who heard the evidence concluded that both drivers were negligent, and apportioned responsibility for the collision 80 percent to the first defendant and 20 percent to the plaintiff. This was unsurprising, since the plaintiff’s vehicle was on the right of the defendants’ vehicle, which had entered the intersection through a “give way” sign, but there was reason to think that the plaintiff had not been keeping as careful a lookout as he might have been. So much is entirely conventional, and indeed none of the magistrate’s conclusions about those matters was challenged on appeal.
[1]The appellant was the second defendant at the trial, the first respondent the first defendant, and the second respondent the plaintiff. For convenience and (hopefully) clarity I shall use the terminology from the trial.
Also not challenged on appeal were the assessments for damages, $11,422.66 in the case of the plaintiff and $4,064.88…
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- Case
- [2004] QDC 86
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the appellant could recover the excess from the respondent and whether the excess was reasonable, implying a term in the contract that the excess should not be unreasonable. Additionally, the court had to consider the extent to which consideration passed between the parties and whether the respondent owed a duty of care to the appellant during the test drive. The court needed to address the question of whether the excess was a term implied in law or merely an equitable principle.
The court found that the excess was an implied term of the contract, not merely an equitable principle. It held that the excess was unreasonable and that the respondent was liable for the excess as part of the damages. The court followed precedents such as Valleyfield Pty Ltd v Primac Ltd and Reichardt v Shard, which held that a term could be implied in law to protect a party from an unreasonable excess. The court also considered Perre v Apand Pty Ltd and Scott v Davis in determining the respondent's liability for the excess. The appeal was dismissed, with costs awarded to the respondent, and the time for filing the first respondent’s notice of contention was extended to 17 December 2003.
Orders
Orders of the court
Appeal dismissed, with costs. Time for filing the first respondent’s notice of contention extended to 17 December 2003.
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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