9 Mr Traczyk properly conceded that it was open to his Honour on the evidence to conclude that the applicant contemplated, when the car was registered in her name, that her son would use it; that he would use it in connection with his work; and that its use by him would be substantial enough to warrant his having special number plates made to his specifications. Indeed, given that the applicant possessed another car, it seems to me that it was open to his Honour to conclude that the son's use would be the predominant use of the vehicle. But it is not for this Court to decide what the correct finding of fact was. It is sufficient to be satisfied, as I am, that his Honour had regard to the use that was, and would be, made of the car.
10 I turn then to the second criterion, of hardship. As Warren CJ noted in Tran: "Something more than ordinary hardship in the operation of the Act is therefore meant."[3] His Honour did not (as I think he should have) refer explicitly to this criterion and express a view about hardship. But it is implicit in the finding that the applicant was a bare trustee of the vehicle - which her son would continue to own beneficially and would continue to use - that his Honour did not regard the hardship contended for as being of any sufficient weight to justify refusing the order. Had it fallen to me to decide the question, I would have come to exactly the same view.
11 As Nettle JA pointed out in argument, this was not a case where it was said that there would be a deprivation of mobility as a result of the loss of the car. Because the applicant had the use of another car, counsel for the applicant before the learned judge confined his submission with respect to hardship to the loss of the valuable asset. As Nettle JA also pointed out, that argument collapses once the finding is made that the applicant had no beneficial interest in the property. That is, if she were to sell the car in her capacity as legal owner, she would have no beneficial right to the proceeds. She would hold the proceeds as trustee for the beneficial owner and - hence - would suffer no hardship from the loss of the vehicle.
12 The third criterion, the matter referred to in sub-s (5)(c), is the claim of any person to an interest in the property. That, of course, was exactly what his Honour was considering. The very essence of the reasoning concerned the nature of this applicant's interest in the property. His Honour made the ruling to which I have already referred, that it was a bare legal interest, conferred upon the mother by arrangement with the son for the reason she gave, that is, to give her more control over his driving.
13 In my opinion, this case could not be more different from Tran. In that case, as Warren CJ noted, the forfeiture in question would have had the result that the defendant would have been rendered homeless. Her Honour concluded that the making of the forfeiture order would impose unacceptable hardship. In the present
case, we are dealing with no hardship at all or, at least, no hardship remotely like the hardship there considered.
14 It follows, in my opinion, that there is no ground made out to show error in the discretionary decision of his Honour to make the forfeiture order. I would refuse the application for leave.