XERRI v KINGMILL PTY LTD (T/as THRIFTY CAR RENTALS) [1998] NSWCA 269

XERRI v KINGMILL PTY LTD (T/as THRIFTY CAR RENTALS) [1998] NSWCA 269

Leave to appeal is granted and the stated case is sent back to the Magistrate to make a finding whether the collision was caused by the deceased's negligence, as the appeal cannot proceed on negligence without such a finding.

Parties
Claimant: John Xerri; Opponent: Kingmill Pty Ltd (trading as Thrifty Car Rentals); Driver (deceased): Charles Azzi
Jurisdiction
Australia
Judgment Date
24 February 1998
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal and Extension of Time
Outcome
Leave to appeal granted. Extension of time for filing application granted. Stated case sent back to Magistrate for further hearing and findings. Appeal stood into Registrar's list for mention.
Legal Topics
Insurance Coverage, Exclusion Clauses, Negligence, Vehicle Collision
Insurance Law Contract Law Tort Law Insurance Coverage Exclusion Clauses Negligence Vehicle Collision

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Parties

John Xerri

Claimant

Kingmill Pty Ltd (trading as Thrifty Car Rentals)

Opponent

Charles Azzi

Driver (deceased)

Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal and Extension of Time

Legal Issues

  1. 1 Whether the exclusion clauses in the Car Rental Agreement exclude cover for negligent or inadvertent breaches of the Motor Traffic Act or Regulations.
  2. 2 Whether the Insurance Contracts Act 1984 imposes liability upon the opponent to pay damages to the claimant as a result of the collision.
  3. 3 Whether the Magistrate erred in law by failing to make a finding of negligence against the deceased.

Ratio Decidendi

Leave to appeal is granted and the stated case is sent back to the Magistrate to make a finding whether the collision was caused by the deceased's negligence, as the appeal cannot proceed on negligence without such a finding.

Court Disposition

Leave to appeal granted. Extension of time for filing application granted. Stated case sent back to Magistrate for further hearing and findings. Appeal stood into Registrar's list for mention.

Orders

  • Extend the time for filing an application for leave to appeal up to and to include the day upon which the summons for leave to appeal was filed
  • Grant the claimant leave to appeal