Smith v Brooks Hire Service Pty Ltd

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SMITH -v- BROOKS HIRE SERVICE PTY LTD [2016] WADC 43



DISTRICT COURT OF WESTERN AUSTRALIACitation No:[2016] WADC 43
Case No:APP:26/201519 AUGUST & 16 DECEMBER 2015
Coram:STEWART DCJ30/03/16
PERTH
26Judgment Part:1 of 1
Result: Appeal dismissed
PDF Version
Parties:MICHAEL PETER SMITH
BROOKS HIRE SERVICE PTY LTD

Catchwords:

Appeal from Magistrates Court
Enforcement of indemnity
Whether consideration uncertain
Whether misleading or deceptive conduct or unconscionable conduct
Turns on its own facts

Legislation:

Australian Securities and Investments Commissions Act 2001 (Cth) s 12CB, 12CC
Competition and Consumer Act 2010 (Cth) sch 2, s 21, s 22
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 s 40
Property Law Act 1969 s 9

Case References:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Fox v Percy (2003) 214 CLR 118
Marton v Evenwood (Unreported, WASCA, Library No 980135, 27 March 1998)
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
Pao On v Lau Yiu Long [1980] AC 614
Rava v Logan Wines Pty Ltd [2007] NSWCA 62
Silver v Dome Resources NL (2007) 62 ACSR 539
Sloane v The Distribution Group Ltd [2002] VSC 10
Violet Home Loans Pty Ltd v Schmidt (2013) 300 ALR 770


JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
    IN CIVIL
LOCATION : PERTH CITATION : SMITH -v- BROOKS HIRE SERVICE PTY LTD [2016] WADC 43 CORAM : STEWART DCJ HEARD : 19 AUGUST & 16 DECEMBER 2015 DELIVERED : 30 MARCH 2016 FILE NO/S : APP 26 of 2015 BETWEEN : MICHAEL PETER SMITH
    Appellant

    AND

    BROOKS HIRE SERVICE PTY LTD
    Respondent


ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE BOON

File No : PE 10857 of 2012


Catchwords:

Appeal from Magistrates Court - Enforcement of indemnity - Whether consideration uncertain - Whether misleading or deceptive conduct or unconscionable conduct - Turns on its own facts

Legislation:

Australian Securities and Investments Commissions Act 2001 (Cth) s 12CB, s 12CC


Competition and Consumer Act 2010 (Cth) sch 2, s 21, s 22
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 s 40
Property Law Act 1969 s 9

Result:

Appeal dismissed


Representation:

Counsel:


    Appellant : Mr B Wheatley
    Respondent : Mr M Curwood

Solicitors:

    Appellant : Mossensons
    Respondent : De Vita Legal


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

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Fox v Percy (2003) 214 CLR 118
Marton v Evenwood (Unreported, WASCA, Library No 980135, 27 March 1998)
Monarch Petroleum NL v Citco Australia Petroleum Ltd [1986] WAR 310
Pao On v Lau Yiu Long [1980] AC 614
Rava v Logan Wines Pty Ltd [2007] NSWCA 62
Silver v Dome Resources NL (2007) 62 ACSR 539
Sloane v The Distribution Group Ltd [2002] VSC 10
Violet Home Loans Pty Ltd v Schmidt (2013) 300 ALR 770
    STEWART DCJ:




Introduction

1 The respondent, Brooks Hire Service Pty Ltd…

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Details
Case
[2016] WADC 43
Decision Date

CaseChat Overview and Summary

In the case of Smith v Brooks Hire Service Pty Ltd, the dispute centred around an indemnity agreement related to hire services. Smith appealed a decision from the Magistrates Court, seeking enforcement of the indemnity. Brooks Hire Service Pty Ltd, the respondent, argued against the enforceability of the indemnity on various grounds, including uncertainty of consideration, misleading or deceptive conduct, and unconscionable conduct.

The legal issues the court had to address were whether the indemnity agreement was void due to uncertainty of consideration, whether the conduct of Brooks Hire Service Pty Ltd amounted to misleading or deceptive conduct or unconscionable conduct, and whether the indemnity was enforceable in equity. The court had to interpret the terms of the indemnity agreement and assess the nature of the relationship between the parties to determine the enforceability of the indemnity.

The court found that the consideration for the indemnity agreement was not uncertain and that there was no evidence of misleading or deceptive conduct or unconscionable conduct on the part of Brooks Hire Service Pty Ltd. The indemnity agreement was clear in its terms, and the consideration was not so uncertain as to render the agreement void. The court held that the indemnity was enforceable and dismissed the appeal. Consequently, the appeal was dismissed, and the original decision of the Magistrates Court was upheld.

Orders

Orders of the court

Appeal dismissed

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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