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

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WADC 43
Case No:	APP:26/2015	Heard:	19 AUGUST & 16 DECEMBER 2015
Coram:	STEWART DCJ	Delivered:	30/03/16
Location:	PERTH
No of pages:	26	Judgment 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…

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: [2016] WADC 43
Decision Date: 30 MARCH 2016

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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