Daidai Mama Pty Ltd v Wang - [2021] VSC 330

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02569

DAIDAI MAMA PTY LTD (ACN 619 356 777)	Appellant
v
ZI WANG	First Respondent
and
LEAF SUPPLEMENTS AND CO PTY LTD (ACN 607 920 178)	Second Respondent

---

JUDGE:	Robson J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2021
DATE OF JUDGMENT:	8 June 2021
CASE MAY BE CITED AS:	Daidai Mama Pty Ltd v Wang & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 330

---

JUDICIAL REVIEW — Appeal against a VCAT decision — Contract for the sale of goods — Vendor claimed price of the goods — Vendor failed at VCAT — Vendor sought to raise a new ground on appeal that property passed on inspection and approval of the goods and the price was thus payable — Held that it would not be in the interests of justice to raise the new ground on appeal, as the purchaser was not informed of this ground at the hearing and was denied the opportunity to raise possible defences and counterclaims to the new ground — Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr Travis Mitchell	Tao Jiang Lawyers
For the Respondents	Ms Julie Yu Zhou	VSTAR Lawyers

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Appellant’s submissions on the first question of law.............................................................. 3
Respondents’ submissions on appealing on question of law................................................. 6
Respondents’ submissions on raising a new matter on appeal............................................. 8
The second question of law....................................................................................................... 11
Conclusion.................................................................................................................................... 13

HIS HONOUR:

Introduction

Daidai Mama Pty Ltd (Daidai Mama) (appellant) appeals against a decision by the Victorian Civil and Administrative Tribunal (the tribunal).

Daidai Mama brought a claim at the tribunal concerning an agreement for the sale of infant formula which was negotiated by Mr Xueming Liu on behalf of Daidai Mama, as the vendor, and Mr Zi Wang (first respondent) on behalf of Leaf Supplements and Co Pty Ltd (Leaf Supplements) (second respondent) as the purchaser.[1]
[1]VCAT Written Reasons (14 May 2019), 2 [2].

Daidai Mama claimed that, on 15 August 2018, Mr Wang collected infant formula on behalf of Leaf Supplements from a warehouse used by Daidai Mama but did not pay for the goods.[2] Mr Wang said he did not collect the infant formula on the day, or at all, and was thus not liable to pay for the goods.[3]
[2]VCAT Written Reasons (14 May 2019), 2 [5].
[3]VCAT Written Reasons (14 May 2019), 2 [6].

In its points of claim at the tribunal dated 21 February 2019, Daidai Mama claimed that it has suffered loss and damage as a result of the respondents’ failure to make payment for the formula. As such, Daidai Mama claimed for the price of the infant formula, as well as interest and costs.

The facts were otherwise not in dispute. The parties agree that, on 13 August 2018, Daidai Mama and Leaf Supplements entered into an agreement for the sale of 180 units of A2 Platinum Stage 2…

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.

Continue reading Daidai Mama Pty Ltd v Wang

Details

AGLC: Daidai Mama Pty Ltd v Wang [2021] VSC 330
Case: [2021] VSC 330
Decision Date: 8 June 2021

CaseChat Overview and Summary

Daidai Mama Pty Ltd, the appellant, filed an appeal against a decision of the Victorian Civil and Administrative Tribunal (VCAT) in a contract dispute with Wang, the respondent. The case centred around a contract for the sale of goods, where Daidai Mama sought to recover the price of the goods from Wang. At VCAT, Daidai Mama's claim was unsuccessful, prompting an appeal to the court.

The primary legal issue before the court was whether it was permissible to raise a new ground for the appeal, which was that the property in the goods had passed to Wang upon inspection and approval, thus making the price payable. The court had to determine if it was appropriate to entertain this new ground, given that it was not raised at VCAT. This involved assessing the fairness and procedural justice in allowing such a new ground to be raised during the appeal.

The court held that it would not be in the interests of justice to permit the introduction of this new ground on appeal. The rationale was that Wang, the respondent, had not been informed of this ground at the VCAT hearing, thereby being denied the opportunity to present any defences or counterclaims related to the new argument. The court emphasised the importance of procedural fairness and ensuring that all parties have a chance to address new arguments presented in the course of the litigation. Consequently, the appeal was dismissed.

Orders