Nock, P. v General Aviation Maintenance Pty Ltd

[1992] FCA 123

IN THE FEDERAL COURT OF AUSTRALIA ) QG 181 of 1991

9UEENSLAND DISTRICT REGISTRY	1	!
GENERAL DIVISION

i BETWEEN: PETER NocK

Applicant

AND :  GENERAL AVIATION MAINTENANCE PTY. LTD.

First Respondent

AND:  COMMANDER AIRCRAFT COMPANY

Second Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	26 February, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The application in QG 181 of 1991 is struck out.

REGISTRY

2.        The Applicant pay the First Respondent's costs of the First Respondent's application.

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rul .es .

RECEIVFD

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA ) NO. QG, 181 of 1991

QUEENSLAND DISTRICT REGISTRY	)	I
GENERAL DIVISION	1

BETWEEN: PETER NOCK

Applicant

AND:  GENERAL AVIATION MAINTENANCE PTY. LTD.

First Respondent

AND :  COMMANDER AIRCRAFT COMPANY

Second Respondent

Coram:	Drummond J
Date :
-	26 February, 1992

Place: Brisbane

EX TEMF'ORE REASONS FOR JUDGMENT

This is an application to strike out an action brought by the Applicant, Mr. Nock. It is unclear from the statement of claim filed with the application what the foundation is for the Applicant's claim for damages alleged to

have been suffered by reason of the First Respondent's delay	in repairing a Commander aircraft deposited with the First
Respondent by the Applicant. From a perusal of the material, particularly that contained in two affidavits filed by the Applicant, it is evident that the background to the dispute is that a class action was brought in the United States by the Commander Flying Association and Thomas A. Sherby on behalf of themselves and all owners of Commander Aircraft Models 112 and 114 against Gulfstream Aerospace ~or~oratidn and numerous associated companies.
The Applicant has annexed to one of his affidavits a copy of the orders and judgment of the Superior Court of California made on 29 August, 1989.
Pursuant to those orders the Court granted final approval to a settlement agreement, the terms of which are that the defendants make arrangements for certain repairs and modifications to be made to Commander Aircraft Models 112 and 114, such repairs to be carried out throughout the world.
Page 1 of the judgment records that the Court modified the ambit of the settlement to include all aeroplane owners worldwide.
The material indicates that the First Respondent to these proceedings, a company carrying on business in Victoria
modifications in accordance with the settlement agreement on defendants in the class action to carry out repairs and as an aircraft maintainer and repairer, was engaged by the
Commander Aircraft Models 112 and 114 owned by Australians.
The aeroplane, the subject of these proceedings, is in fact owned, not by the Applicant, but by his mother. The
Applicant, however, opezates it, under an a~rangemenk with his
mother. That arrangement does not alter the fact that it is his mother who is the owner of the aircraft and who alone is within the class of persons entitled to the benefit of the settlement agreement.
It seems to me that the First Respondent, upon accepting the appointment to act as the defendantsr Australian agent, thereupon made an offer to all Australian owners of Commander Aircraft Models 112 and 114 that it would, on the terms and conditions covered by the settlement of the class action, carry out the repairs and modifications in question.
That offer was capable of ripening into a contract upon any Australian owner of a Commander Aircraft Model 112 or 114 presenting the aircraft to the First Respondent for the appropriate repairs and modifications to be made.
It is clear that the Applicant presented his mother's aeroplane to the First Respondent for repairs. He
could only have done so as his mother's agent.
The Applicant says he disclosed to the First Respondent that it was his mother who owned the aeroplane. That issue cannot be resolved in these proceedings. However, even if I was to accept that such a disclosure was made, that could not assist him. When the Applicant presented the aeroplane to the First Respondent for repairs, he could only have contracted with the First Respondent as agent for his mother. It matters not whether or not he disclosed his agency. The Applicant is not the owner of the aeroplane and thus is not entitled to rely upon the settlement agreement.
The Applicant has only claimed damages personally suffered by not having access to the aeroplane. There is no suggestion that his mother suffered any damage by reason of the alleged late performance of repairs by the First Respondent. If the Applicant had been able to point to some factual basis upon which he could set up a cause of action against either of the respondents, I would in all probability have given him leave to amend his statement of claim to expose that cause of action. However, it seems clear that no such cause can be made out. It is therefore pointless to allow the litigation to continue and I propose to strike out the application.
I certify that this and the three preceding pages are a true copy of the reasons for judgment
herein of the Honourable
Mr. Justice Drummond.
Associate: p w qw ~
Date :  26 February, 1992