Carlin Auction Services (Qld) Pty Ltd v Gonchee

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 respondent

SOLICITORS:

Creswicks Lawyers for the appellant
Morgan Conley Solicitors for the first respondent
Hewlett & Co for the second respondent

1. 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.

1. 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.

1. Also not challenged on appeal were the assessments for damages, $11,422.66 in the case of the plaintiff and $4,064.88…