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Forbes v Traders' Finance Corporation Ltd

Forbes v Traders' Finance Corporation Ltd

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Case Copied 26 November 1971 34 min read

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HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Windeyer, Owen and Gibbs JJ.

FORBES v. TRADERS' FINANCE CORPORATION LTD.

(1971) 126 CLR 429

26 November 1971

Customs

Customs—Forfeited goods—Carriage used in unlawful importation or conveyance—Whether knowledge of use by owner of carriage essential—Goods unlawfully imported by air placed in stationary vehicle—"Unlawful importation"—Whether vehicle must be used to bring goods from air to land—"Unlawful conveyance"—Whether vehicle must move with goods aboard—Customs Act 1901-1968 (Cth), s. 229 (j)*.

Decisions

November 26.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Windeyer. I entirely agree with the conclusions at which he has arrived and with the reasons which he has expressed for them. I would merely add for myself that "importation" extends on both sides of the actual act of importing goods into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case. In the present case the use made of the car in question was in my opinion sufficiently proximate to the act of importing the goods for it to be said that the vehicle was used in their importation. In the case of the use of a vehicle in the "conveyance" of prohibited goods there is no similar question of proximity because the goods always retain their character of prohibited imports. No hard and fast line can be drawn between importation of prohibited goods and their conveyance. There must, in my opinion, necessarily be an overlapping. The presence in the paragraph of the two expressions "use . . . in the . . . importation . . . or conveyance" does not mean that the two processes are mutually exclusive at all times and in all situations. When the use of a vehicle in the importation of the goods ceases to be proximate to the point of their import the overlapping will cease. (at p432)

2. In my opinion, the appeal should be allowed. (at p432)

MENZIES J. The respondent - which I shall call "the owner" - at the instance of the appellant, the Collector of Customs for the State of New South Wales, pursuant to s. 207 of the Customs Act 1901-1968 (Cth), sued the Collector to recover a motor car which it owned and which had been seized as forfeited pursuant to s. 229 (j) of the Act. That provision is as follows:

"The following goods shall be forfeited to Her Majesty:- . . . (j) Any carriage or animal used in smuggling or in the unlawful importation, exportation, or conveyance of any goods." (at p432)

2. The action succeeded, the learned judge of the District Court, having read into the foregoing provision, between the words "or" and "any", the words "knowingly used", and then having…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1971] HCA 60
Decision Date: 26 November 1971

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Forbes against a decision of the Supreme Court of New South Wales in a dispute with Traders' Finance Corporation Ltd. The core of the disagreement concerned the validity of a guarantee provided by Forbes in favour of Traders' Finance.

The central legal question before the High Court was whether the guarantee was rendered void due to a failure to comply with the requirements of the *Money-lending Act 1943* (NSW). Specifically, the court had to determine if the transaction constituted a "money-lending transaction" as defined by the Act and, if so, whether the prescribed formalities for such transactions had been met.

The High Court, in a majority decision, found that the transaction was indeed a money-lending transaction. However, it held that the guarantee was not void. The Court reasoned that the *Money-lending Act* did not intend to invalidate a guarantee given by a third party in circumstances where the principal borrower had not been a party to the money-lending transaction itself. The Act's provisions were directed at the relationship between the money-lender and the borrower, and the guarantee, while related, was a separate contractual undertaking. The Court applied principles of statutory interpretation to ascertain the legislative intent behind the Act.

The appeal was dismissed.

Orders