THOS COOK v KUMARI [2002] NSWCA 141

THOS COOK v KUMARI [2002] NSWCA 141

The respondent did not breach condition 2. Her concession that she would not have carried an equivalent amount of cash in the markets could not establish breach, because that construction would defeat the object of travellers' cheques. On the proper comparison, the appellant had to show that she failed to safeguard currency notes of the same value and bulk as the travellers' cheques at the same time and place; there was no evidence she would have carried such currency in any other place, and the evidence about the handbag did not establish breach.

Jurisdiction
Australia
Judgment Date
21 May 2002
Procedural Posture
Banking and Contract Appeal Concerning Refund of Lost or Stolen Travellers' Cheques / Appeal From District Court Judgment of Certoma ADCJ
Outcome
Appeal dismissed with costs.
Legal Topics
["travellers' Cheques" 'loss or Theft' 'construction of Refund Condition' 'safeguarding Condition']
['banking' 'contract Law'] ["travellers' Cheques" 'loss or Theft' 'construction of Refund Condition' 'safeguarding Condition']

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Procedural Posture

Banking and Contract Appeal Concerning Refund of Lost or Stolen Travellers' Cheques / Appeal From District Court Judgment of Certoma ADCJ

Legal Issues

  1. 1 ["Whether the respondent breached condition 2 of the purchase agreement requiring her to safeguard each travellers' cheque against loss or theft as she would a similar amount of her own cash." "Whether the respondent's concession that she would not have taken $US 50,000, or the equivalent in Australian currency, in cash into places such as the Tikkiah Markets or the Mustafa Centre established a breach of condition 2." "Whether keeping the travellers' cheques in the outer pocket of her handbag established that she had not safeguarded them as she would a similar amount of her own cash."]

Ratio Decidendi

The respondent did not breach condition 2. Her concession that she would not have carried an equivalent amount of cash in the markets could not establish breach, because that construction would defeat the object of travellers' cheques. On the proper comparison, the appellant had to show that she failed to safeguard currency notes of the same value and bulk as the travellers' cheques at the same time and place; there was no evidence she would have carried such currency in any other place, and the evidence about the handbag did not establish breach.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']