Krebs v Vitasovic - [2020] WADC 94

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KREBS -v- VITASOVIC [2020] WADC 94
CORAM:   STEVENSON DCJ
HEARD:   12 JUNE 2020
DELIVERED          :   30 JUNE 2020
FILE NO/S:   APP 100 of 2019
BETWEEN:   JUERGEN KARL KREBS
Appellant
AND
DAVID VITASOVIC
First Respondent
MELONIE INVESTMENTS PTY LTD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DARGE
File Number            :   PE 17165/2017

Catchwords:

Appeal - Magistrates Court - General procedure claim - Extension of time to appeal - Contract to purchase new motor vehicle - Meaning of 'new' - Whether any discernible error of fact or law - Costs - Whether any wrongly exercised judicial discretion

Legislation:

District Court Rules 2005 (WA), pt 6, r 50(1), r 50(3), r 50(4),
Fair Trading Act 2010 (WA), pt 6
Magistrates Court (Civil Proceedings) Act 2004 (WA), pt 7, s 40(3), s 40(4) and s 40(5),
Motor Vehicle Dealers Act 1973 (WA), s 42A

Result:

Extension of time within which to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	In Person
First Respondent	:	Mr P W L Hardless
Second Respondent	:	Mr P W L Hardless

Solicitors:

Appellant	:	Not applicable
First Respondent	:	Hardless Legal
Second Respondent	:	Hardless Legal

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Girando v Girando (1997) 18 WAR 450
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

STEVENSON DCJ:

This is an appeal by Mr Krebs from a judgment of his Honour Magistrate Darge delivered on 29 November 2019 (primary decision). The primary decision concerns a General Procedure Claim lodged by Mr Krebs in the Perth registry of the Magistrates Court of Western Australia on 20 November 2017.
At that time Mr Krebs described his claim as follows:
Purchased a new van for $37,500
dealer try to deliver a used one
he offers to resale it for $28,000 to someone else.
please see attached pages 1 - 4.
After a long history of interlocutory matters in the Magistrates Court (not relevant to this appeal) the matter was heard by Magistrate Darge on 29 October 2019. At the time of the trial, Mr David Vitasovic was the first defendant and Melonie Investments Pty Ltd was the second defendant (MIPL).
In summary, Mr Krebs refuses to accept delivery of a motor vehicle supplied to him by a licensed motor vehicle dealer pursuant to a written agreement made on 17 August 2017 on the grounds that it is not a 'new' vehicle. On this basis, Mr Krebs claims he is entitled to a refund of the full purchase price which he has paid for the vehicle, namely $37,500.
For the reasons set out in the primary decision, Magistrate Darge made orders on 29 November 2019:
1.dismissing Mr Krebs' claim;
2.allowing the defendants' counterclaim, but with damages assessed at nil; and
3.that Mr Krebs pay the defendants' costs of the claim, including reserved costs, and of the counterclaim to be assessed if not agreed.
This appeal is concerned with the first and third orders made by the learned magistrate. The respondents to this appeal, Mr David Vitasovic and MIPL (collectively 'the respondents') have not cross‑appealed the second order in relation to the counterclaim.
As will be seen, the facts of the matter also involve Mr Joshua Vitasovic who is Mr David Vitasovic's son. For ease of reference, and without meaning any disrespect to them or Mr Krebs, these reasons will refer to their first names, in contradistinction to Mr Krebs.
Mr Krebs is self‑represented. During the trial in the Magistrates Court he was assisted at times by an interpreter. I am satisfied that the issues sought to be raised by Mr Krebs on appeal, and the appeal hearing itself before me, did not require Mr Krebs to be assisted by an interpreter. Mr Krebs' primary evidence in the Magistrates Court, and the issues raised on appeal, are sufficiently plain and clear from the transcript and his written submissions that the interests of justice and his right to a fair hearing are not at risk.
During the hearing of the appeal Mr Krebs was able to articulate his submissions and in my view fully grasp the nature of the proceedings and the issues to be determined. I have had regard to the requirements to ensure a fair and just trial where one of the parties is a self‑represented litigant, bearing in mind the court's obligation to ensure a fair and just hearing for all parties: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] ‑ [76].
In coming to this view, and in considering Mr Krebs' amended notice of appeal dated 28 April 2020, I have made allowance for the fact that English is not Mr Krebs first language. No request was made by Mr Krebs at the appeal hearing for an interpreter. It is noted that at one stage Mr Krebs was assisted with his claim in the Magistrates Court by a legal representative (although that relationship appears to have come to an acrimonious end). In the week prior to the appeal hearing this court provided to Mr Krebs the court's standard information to assist litigants in person with commencing actions in the District Court. Mr Krebs gratefully acknowledged the document was of assistance to him.
For the reasons which follow, in my view, this appeal must be dismissed.

Statutory provisions governing the appeal

This appeal is governed by pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) and must be conducted in accordance with the pt 6 of the District Court Rules 2005 (DCR).

(a) Extension of time to commence appeal

The appeal must be commenced within 21 days of the date of judgment in the Magistrates Court, unless this court grants leave for the appeal to be lodged out of time: s 40(3) MCCPA.
The notice of appeal was filed three days out of time. The grant of any extension of time is not automatic. Relevant considerations include the length of the delay, the applicant's explanation for the delay, any actual prejudice the respondents will suffer, the prospects of the applicant succeeding in the appeal, and whether on a fair and balanced consideration of the matter a strict application of the procedural rules would constitute an injustice. See generally: Girando v Girando (1997) 18 WAR 450, 454.
The respondents accept it is open to the court to grant an extension of time to Mr Krebs to commence his appeal, having regard in particular to the fact that Mr Krebs is self‑represented (even though he obtained a legal qualification in Germany and on his own statement practiced as an advocate or barrister in that country).
Having regard to the relevant considerations, including the minimal period of the delay, and taking account of the personal circumstances of Mr Krebs as they existed at the time, I would make an order extending time for the commencement of the appeal.

(b) Nature of the appeal hearing

This court must decide the appeal on the material and evidence that was before the Magistrates Court, and any other evidence that it gives leave to admit, which may only be given in exceptional circumstances: s 40(4) and s 40(5) MCCPA.
Because this court hears appeals from a number of different jurisdictions, the DCR provide that this court must not grant leave to a party to adduce evidence that was not adduced in the primary court 'unless satisfied there are special grounds for doing so': r 50(3). This requirement is, however, subject to 'the written law that provides for the appeal': r 50(4).
The result, as a matter of statutory construction, is that this appeal is conducted by way of 'a reconsideration of the evidence' that was before the Magistrates Court (r 50(1) DCR), unless this court is satisfied that 'exceptional circumstances' exist to grant leave for additional evidence to be adduced.
Although Mr Krebs referred to alleged hearsay evidence in his grounds of appeal which the learned magistrate refused to admit into evidence, Mr Krebs did not make any application in this court for leave to adduce fresh or additional evidence. As I understand the notice of appeal, this issue concerns the evidence proposed to be given by Mr John Benari (who at one stage was providing legal assistance to Mr Krebs). This ground of appeal therefore involves an alleged error of law, or a wrong exercise of discretion on the part of the learned magistrate in refusing to admit the evidence at trial.
Accordingly, this appeal must be determined on a reconsideration of the evidence that was adduced in the Magistrates Court, and the powers of this court are exercisable only if Mr Krebs can demonstrate that the learned magistrate's decision is the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172. The power, in the case of an appeal by way of rehearing, can only be exercised for the correction of error, in contradistinction to an appeal by way of a hearing de novo: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203.
So, for the appeal to be allowed, Mr Krebs must discharge the burden of proof on him, by demonstrating that the learned magistrate made a relevant and material error of law or fact in his reasons for decision, or that he wrongly exercised a material discretion in making his decision.

Mr Krebs' grounds of appeal

After some procedural hearings, the appeal proceeded on the basis that the grounds of appeal are contained in Mr Krebs' amended notice of appeal dated 28 April 2020 (notice of appeal). This document is prepared by reference to the numbered paragraphs of the primary decision, and consists of submissions or comment on each paragraph. It must also be observed that reference is made to some German legal maxims such as 'colorandi causa' and 'essentialia negotii'. The meaning of these were explained by Mr Krebs in oral submissions. In general terms, these concepts as explained by Mr Krebs, have an approximate equivalent in Australian contract law.
Consistent with Mr Krebs' European legal background, it is to his credit that he has, in the main, presented his arguments in this appeal with clarity and conciseness notwithstanding the personal toll he has had to bear as a result of the dispute, which he described in correspondence to the court as 'a horrible case' and a 'nightmare'. I am satisfied that Mr Krebs at all material times understood the nature of the appeal hearing and, in particular, that this court has no power or mandate to institute its own inquisitorial process to find answers to questions, or to seek evidence, to advance the case of one party as may happen in civil law jurisdictions.
According to Mr Krebs, in about August 2017, he had been living for about 'two years in a small sedan' when he entered into an agreement with 'Dove Campers' to purchase a new LDV van. This agreement was negotiated with Mr David Vitasovic and evidenced in writing by a document signed by the parties on 11 August 2017 (the written contract). Mr Krebs' intention was to get Mr Joshua Vitasovic to convert the vehicle into a camper van, so he could use it as his primary residence, instead of the small sedan.
The gravamen of Mr Krebs' complaint is found in his contention that he contracted to purchase a 'new' vehicle, and that MIPL has breached the agreement by attempting to provide a vehicle which was not a 'new' vehicle. For this purpose, Mr Krebs is steadfastly rooted to his personal belief that the subject vehicle is not 'new' for the various reasons he has articulated - which question must of course be determined by reference to the terms of the agreement and any objective evidence to the contrary.
Accordingly, by reference to the notice of appeal, I discern that the grounds of appeal are as follows:
1.The learned magistrate erred in law and fact in determining that the subject vehicle was a 'new' vehicle for the purpose of the agreement.
2.The learned magistrate erred in law and fact in not determining that Mr Krebs was lawfully entitled to terminate the agreement:
(a) because the subject vehicle was not a 'new' vehicle;
(b)because the agreement was unenforceable because of a failure to comply with a relevant statutory requirement; or
(c)because of some form of alleged fraud by Mr David Vitasovic.
3.The learned magistrate made an error of law or wrongly exercised his discretion by:
(a) not allowing Mr Benari to give evidence of alleged inadmissible hearsay opinion;
(b)allowing Mr David Vitasovic to give direct evidence of his opinion about a 'new car smell'; and
(c)making an order that Mr Krebs pay the respondent's costs of the claim (including reserved costs), and the costs of the counterclaim.

The proceedings before the magistrate

The trial was conducted by Magistrate Darge on 29 October 2019. Mr Krebs was self‑represented and Mr Hardless appeared on behalf of the respondents (as he did in this appeal).
It must be noted that the learned magistrate went to great lengths to explain the trial process to Mr Krebs and to ensure that he received a fair trial. The legal reason for decisions made by the magistrate in the course of the hearing were respectfully explained to Mr Krebs, but Mr Krebs' responses were often indicative of a closed mind to the issues and the possibilities (giving oxygen to the old adage of the lawyer who acts for himself in his own legal case).
I would add that Mr Hardless in the conduct of the respondent's case, was also professionally mindful, at all times, that Mr Krebs was representing himself. For example, he gave advance notice of the potential forensic difficulty Mr Krebs faced by attempting to call his former lawyer, Mr John Benari, as a witness.
There is no material controversy in the admissible evidence adduced in the Magistrates Court as to the critical underlying requirement that the subject matter of the contract was a 'new' motor vehicle. It is common ground that the agreement between the parties involved the purchase of a 'new' vehicle, which was to be altered by Mr Joshua Vitasovic to convert it into a camper van. The issue in dispute is whether the subject vehicle was a 'new' motor vehicle in accordance with the agreement.

The evidence of Mr Krebs

Mr Krebs gave evidence to the effect that he had been living in his sedan for about two years when he spoke to Mr Joshua Vitasovic about converting a motor vehicle into a campervan. Mr Krebs was highly complementary of the craftsmanship and work of Mr Joshua Vitasovic in his comments during the trial. The proposed endpoint for Mr Krebs was the attainment of a campervan conversion by Mr Joshua Vitasovic.
It is not in dispute that Mr Joshua Vitasovic explained to Mr Krebs that his business only involved undertaking the conversion works necessary to convert an existing vehicle into a campervan. In other words, Mr Krebs would have to supply the vehicle. For this reason, Mr Joshua Vitasovic indicated to Mr Krebs that if he was still interested in the concept that he could speak to his father, Mr David Vitasovic, who might be able to assist him to obtain a suitable vehicle.
According to Mr Krebs, Mr David Vitasovic said he 'would be able to sell him a new van' and was prepared to trade his existing motor vehicle as part of the overall deal. Obviously, Mr Krebs required his car until the new vehicle was ready after its conversion had been completed by Mr Joshua Vitasovic.
Mr Krebs, understandably, does not appear to have known or understood the nature of the separate legal entities between the business of Mr Joshua Vitasovic and Mr David Vitasovic. The former is the sole director of Dove Camper Conversions Pty Ltd. The latter is the sole director of Melonie Investments Pty Ltd which is the corporate trustee of Eagle Investments Trust trading as Dove Campers (Dove Campers). Mr David Vitasovic holds motor vehicle dealer licence 11541. To add to the confusion both businesses were operated from the same premises at 24 Welshpool Road, Welshpool.
Consistent with this factual background there is a handwritten note which sets out a calculation beginning with $37,500 for a 'LDV V80' van which after taking into account a cash component and an allowance for Mr Krebs' existing vehicle arrives at a changeover figure of $55,010. There is a factual dispute about whose handwriting is on the note. This is not directly material to the issues in this appeal, which is only concerned with the first part of the proposed transaction, namely the payment of $37,500 by Mr Krebs to Dove Campers for a 'new' van.
It is common ground that on 11 August 2017 Mr Krebs signed a written standard form contract to buy a motor vehicle from Dove Campers (the contract). There is a factual dispute as to whether Mr Krebs, who signed the contract in two places, did so as 'the purchaser' or merely for the purpose of acknowledging that he had received a copy of the contract as a possible purchaser.
This factual issue is raised by Mr Krebs to aid his contention that there is no legally enforceable contract by reason of the operation of the Motor Vehicle Dealers Act 1973 (WA) (MVD Act). I will deal with this contention later in these reasons.
The contract provided that the subject vehicle was to be 'new' - not 'used' or 'demo'. Further details of the subject vehicle on the contract, which constitute sufficient particularity for the purpose of contractual certainty, include the make (LDV), the model (V80), the transmission (auto), the engine (diesel), the colour (white) and odometer (new).
It is noteworthy that no minimum odometer reading was contractually specified as an express condition of the contract. Similarly, consistent with the transaction at the time it was negotiated, the identifying details of the vehicle were specified as 'TBA' because the actual vehicle had not been identified by both parties.
Of further particular importance is the fact that the year of manufacture was also 'TBA', indicating that Mr Krebs had no particular contractual requirement in this regard, just that the vehicle be 'new'.
Pursuant to the contract Mr Krebs paid the full contract price of $37,500 to Dove Campers by payment of a $500 deposit on 11 August 2017 and the balance of $37,000 on 26 September 2017 (by overseas transfer and cash).
At par 25 of the appeal notice Mr Krebs says that no mention was made at the time the contract was signed that Dove Campers would have to 'source' the vehicle or 'organise' it from another dealer. Putting aside whether Mr Krebs gave evidence in support of this contention (as opposed to making a submission), I would have difficulty in accepting this proposition as it flies in the face of the information on the contract and the way the whole deal was structured from the outset.
In any event, it does not change the contractual issue sought to be raised by Mr Krebs. This court is not permitted to speculate, but it can reasonably be inferred that at the time Mr David Vitasovic knew the market price for and availability of the make and model that Mr Krebs wanted, or he knew of the existence for sale of the actual vehicle and its price. Otherwise, it is unlikely he would have taken the commercial risk of entering into the contract to supply the subject vehicle for the agreed contract price. At the time, Mr Krebs, obviously, presented to Mr David Vitasovic as a commercial opportunity to garnish work for his son’s business, Dove Camper Conversions.
Mr David Vitasovic’s evidence was that he located the subject vehicle about a week before the contract was signed on 11 August 2020 for 'around the price (Mr Krebs) wanted'. If this is right, it would appear Mr David Vitasovic did not obtain the vehicle particulars necessary to enable all the details to be completed on the contract. With the benefit of hindsight, Mr Krebs should have asked to inspect the vehicle first, or made the contract conditional on an inspection of the vehicle.

There does not appear to be any evidence that Mr David Vitasovic offered Mr Krebs the opportunity to inspect the vehicle, before he signed the written contract. And, obviously, Mr David Vitasovic did not bother to obtain full particulars of the vehicle from the seller, including the odometer reading for the purpose of completing the contract.
As to the subject vehicle, it is accepted by the parties that the vehicle was of the correct make and model, was manufactured in China in October 2015, given compliance in January 2016, and first registered in Australia on 14 July 2017 to Torella Pty Ltd (trading as 'Perth Motorsport'), and that it was transferred to MIPL on 2 October 2017 for $31,000: [27] primary decision and licensing documents in evidence.
The registration number of the vehicle is 1GEZ270. The motor vehicle transfer document dated 2 October 2017 records the odometer reading as 27 km.
On 6 October 2017, Mr Krebs said he visited Dove Campers and located the subject vehicle. On inspection he said it 'wasn't acceptable'. He maintained that the driver and passenger seats were dirty, and that you could 'see that the safety belts had been used'. He also said there were 'handprints on the roof of the cabin inside' and that he observed that the odometer reading was 10 km. He also observed that the vehicle was built in 2015.
In the circumstances as he perceived them at the time, Mr Krebs said he was not prepared to accept delivery of the vehicle for the purpose of the contract. As a result, consistent with the evidence of Mr David Vitasovic, it seems enquiries were made of Perth Motorsport, at some stage, to see if they would take the vehicle back. Although it is not necessary to make any findings for the purpose of this appeal, it appears there were further discussions between the parties including attribution of an increased value to Mr Krebs trade‑in vehicle in order for the overall proposal to be completed, including for the camper van conversion to be undertaken by Mr Joshua Vitasovic.
Notwithstanding the effect of Mr Krebs' evidence, in his 'Trial Book' there is a document which purports to be an email from Mr Krebs to Dove Campers sent at 10.21 am on 6 October 2017 as follows:[1]
Dear David,
is there a chance for personalized number plates?
If yes, please make it - - - > BRI JUE < - - -
Have a good weekend - regards - J.Krebs
[1] TB document 87, page 91.
It is not clear from the evidence whether this email was sent before or after Mr Krebs' inspection of the subject vehicle at which time he became dissatisfied with its condition. This email does not appear to have been the subject of direct evidence in the trial.
It also appears that Mr Krebs sent an email to Dove Campers on 6 November 2017 saying 'I have to stop now this stupid game' and requesting a refund of the $37,500 purchase price that he had paid for the vehicle.
In cross‑examination, Mr Krebs confirmed that the overall proposal was, in his words - 'its three simple steps. Buy a car, convert it and trade in'. Mr Krebs also denied that the handwritten notes referring to a changeover of $55,510 (exhibit 2) was his handwriting.
Mr Krebs, in cross‑examination, accepted that he took a series of photographs of the subject vehicle from the outside including one looking in through the window at the front seats. When asked as to where he got the figure of 10 km as the odometer reading on the vehicle his answer was 'from my own eyes'.
Mr Krebs was pressed in cross-examination if he had any photographs which corroborated his evidence. Mr Krebs response was that he did because they were on a microchip which had failed and that he understood it would cost about $15,000 to restore the microchip in order to retrieve the photographs. No relevant evidence was adduced to support this contention.
Mr David Vitasovic said MIPL had not sold the vehicle, notwithstanding the dispute, because he thought that the vehicle might be required for inspection in the course of the litigation. The court understands the vehicle is still sitting in MIPL's yard pending resolution of the matter. I infer that the respondents are likely to claim a possessory lien over the vehicle as security for their legal costs in the litigation. I make no further comment about this proposition as it is not relevant to the appeal.
In cross‑examination, Mr Krebs was asked if he had any personal knowledge of the vehicle having been used for a commercial purpose or otherwise. His response was that there were 'items and materials on the back, then, obviously it must have been used before'. He described the materials as wood and plastic and other equipment to build campervans.
In maintaining his stance that the vehicle was not 'new' Mr Krebs said, in cross‑examination, that he could 'tell by observing whether a thing is new or whether it has been used'. At this stage in Mr Krebs' evidence he added that there were some scratches on both sides but nothing on the back doors. It seems Mr Krebs may have been referring to the floor of the tray in the rear of the van.
According to Mr Krebs, the photographs of the vehicle which he produced were not taken on 6 October 2017 but on another date, which he did not know and could not specify.
In his evidence, Mr Krebs referred to and relied upon his general experience in Brisbane, during which time he said he was employed to drive new vehicles from a ship transporter to the motor vehicle dealer's yard.
Consistent with Mr Krebs' subjective opinion based entirely on his observation of the vehicle, towards the end of his evidence in cross‑examination he said:
… if you buy yourself a new Porsche, you go to the dealer. You open the door and smell it. This is a new car. If you pay the full price, you would not buy a 2‑year old Porsche who is stinking like this car, because it will smell ugly. It was full of rubbish (indistinct) they use it for transporting - I don't know how often. Then you see the odometer is 10 km. What do you think? Everything is fine.
Mr Krebs accepted in cross‑examination that he signed the contract dated 11 August 2017 in two places, but he did not accept that he was agreeing to be bound by its terms. According to Mr Krebs, he was merely acknowledging receipt of the document. Mr Krebs insisted that if you look at the place on the contract where it says signed by purchaser - 'you cannot see my name'.
An examination of the contract reveals that Mr Krebs signed the contract in two places. Whether he also inserted the date 11 August 2017 alongside both signatures is moot. Mr Krebs first signed the contract on the line commencing 'Copy received by Purchaser' above the words 'Signature of Purchaser'. He did not sign on the line immediately above this which commences with the words 'Signed by Purchaser'. The second signature of Mr Krebs appears alongside the second date of 11 August 2017 where there is no line to sign on.
At one stage Mr Krebs contended that his second signature was a fraud. This is an issue about which I make no finding as Mr Krebs accepts for the purpose of the appeal that he signed the contract.

The evidence of Mr John Benari

Mr Benari is a legal practitioner who, for some period during the litigation in the Magistrates Court, provided legal advice and assistance to Mr Krebs. These proceedings are not concerned with the nature of that relationship or the circumstances whereby Mr Benari ceased to advise Mr Krebs about his claim. Notwithstanding the solicitor and client relationship that appears to have existed at some stage and on some basis, Mr Krebs insisted on calling Mr Benari as a witness.
Quite properly the learned magistrate, and Mr Hardless, were concerned about a possible breach of legal professional privilege that might occur if Mr Benari was to give evidence. For this reason, the learned magistrate went to some length in discussion with Mr Krebs to ascertain the proposed evidence of Mr Benari which Mr Krebs wanted to adduce. It seems it was Mr Krebs' intention to lead evidence from Mr Benari of statements made to Mr Benari by 'experts' that Mr Benari knew (by which I infer reference is being made to new or used car salesmen or dealers). The second aspect of the proposed evidence appears to relate to 'without prejudice' settlement negotiations which obviously failed.
It was quite properly noted by the magistrate that Mr Krebs had not complied with the order requiring him to file and serve a witness statement of the proposed evidence of Mr Benari prior to the hearing. Even though Mr Krebs was self‑represented, the magistrate was still obliged not to allow the trial to become unfair to the legally represented parties. Compliance by both parties with such procedural orders is arguably more important in cases involving a self-represented litigant.
It is trite law that a witness cannot give hearsay evidence and cannot express an opinion (whether hearsay or otherwise) unless they are qualified by training and experience to do so. In the circumstances all of the proposed evidence of Mr Benari, as identified by Mr Krebs to the learned magistrate, was inadmissible, and in any event could not advance Mr Krebs' case.
It is observed that the entirety of the evidence adduced by Mr Krebs in support of his primary contention that the vehicle was not 'new' did not, at any time, condescend to any direct evidence that the subject vehicle had been used by a prior purchaser for personal or commercial use, or that it had been used as a demo model by the dealer after registration.
I would add that there does not appear to be any evidence why the vehicle was registered to the dealer, except that there may be an indirect explanation in the evidence of Mr David Vitasovic to the effect that in order to obtain a dealer discount it was necessary for the licence to be registered and transferred to Dove Campers. It would not have been lost on Mr Krebs, even making allowance that by the time of the trial he was self-represented, that he could have served a witness summons on Perth Motorsport to compel the dealer, on oath, to inform the court of the history of the vehicle, including any prior use.

The evidence of Mr Joshua Vitasovic

The respondent adduced evidence from Mr Joshua Vitasovic whose sworn evidence was consistent with his statement of intended evidence dated 15 August 2019. Mr Vitasovic said he first met Mr Krebs in August 2017 in relation to a proposed motorhome conversion.
Mr Joshua Vitasovic said that he received an email dated 30 July 2017 from Mr Krebs asking if he did campervan conversions to LDV vans in his factory. Subsequently, Mr Krebs visited him at 24 Welshpool Road and discussed the possibility of conversion of an LDV vehicle. The discussions were all subject to obtaining a suitable trade‑in price for Mr Krebs' current vehicle.
Mr Joshua Vitasovic said because he did not deal in motor vehicles, he introduced Mr Krebs to his father in August 2017. Thereafter, he said he was not involved in any further discussions relating to sales, trade‑ins or purchases of any motor vehicle with Mr Krebs.
On 26 September 2017, Mr Joshua Vitasovic said Mr Krebs came into the office, which he shared with his father, at 24 Welshpool Road to pay the balance of the vehicle purchase price to Dove Campers in cash. His father was not present at the time so he accepted the payment and provided Mr Krebs with a receipt from Dove Campers, his father's business.
Mr Joshua Vitasovic next saw Mr Krebs in the yard in October 2017 and spoke to him. He was not specific as to the date. At this time Mr Krebs indicated there was a mark on the headlining inside the vehicle and that a seatbelt was frayed. Mr Krebs also said and that he suspected that the dealership had wound back the odometer and that the vehicle did not smell new.
At this time, according to Mr Joshua Vitasovic, Mr Krebs requested that the vehicle be swapped and he said words similar to 'I will not take this vehicle, I want another one'. Mr Joshua Vitasovic said he was made aware by his father that the LDV dealership was not prepared to swap the vehicle as requested by Mr Krebs as they had already transferred the vehicle. To his knowledge the subject vehicle was detailed and the mark on the headlining removed.
In his evidence, Mr Joshua Vitasovic said at one stage there was a bit of foam in the rear of the vehicle.
Mr Krebs did not relevantly cross‑examine Mr Joshua Vitasovic.

The evidence of Mr David Vitasovic

Mr David Vitasovic confirmed as his evidence his statement of intended evidence dated 15 August 2019. The evidence of Mr Vitasovic was that he informed Mr Krebs that Dove Campers was able to buy vehicles at a fleet discount and sell them at a better price than most customers could achieve without the help of a dealership, but that the vehicle would first need to be licensed in Dover Campers' name. According to him, he explained to Mr Krebs that this was because no discount could be achieved if the vehicle is first licensed in the customer's name. This contention was not the subject of any competing evidence to the contrary and therefore the learned magistrate had no basis to reject it.
Mr Vitasovic went on to say, according to his statement of intended evidence, that he told Mr Krebs it would therefore technically be a demonstrator vehicle and therefore all 'new' vehicles that we sell are 'demonstrator vehicles'. At the same time he told Mr Krebs words to the effect that 'the vehicle will never have been previously sold to the general public' and was in effect for all intents and purposes a 'new' vehicle.
Mr Vitasovic also gave evidence that he expressed a concern to Mr Krebs about the inability of the LDV to hold its resale value compared to other more established and better known motor vehicle brands. Mr Krebs seems to have accepted that this conversation occurred.
Mr David Vitasovic says he informed Mr Krebs on or about 3 August 2017, that he had located 'an LDV priced around what you wanted' and that the price would be $37,500 drive away.
Thereafter there was discussion with Mr Krebs about the trade‑in value of his existing vehicle 'a 2015 Holden Cruz' but that Mr David Vitasovic says had concerns because the vehicle was licensed in Queensland and had modifications to the rear which Mr Krebs indicated was 'to suit me living in the vehicle'. Mr Vitasovic was not cross-examined about these matters.
Mr David Vitasovic says he indicated to Mr Krebs that he would accept the Cruz at an agreed value of $6,500 but required payment in full for the LDV in advance because Mr Krebs said he was suffering from a terminal illness. According to Mr Vitasovic, he said he would accept the trade‑in after the conversion of the LDV was completed and that the proceeds of the trade‑in could be used for payment of the conversion by Dove Campers Conversions (his son's business).
Mr David Vitasovic's evidence was that he understood Mr Krebs said he understood and that he agreed with the proposal, which then resulted in both parties signing the written contract on 11 August 2017.
However, according to Mr David Vitasovic, Mr Krebs informed him a few days later by words to the effect that:
I am no longer able to do the deal because the total cost of the conversion and the van is more than I wanted to transfer from overseas.
There were further discussions and this included an inspection of the proposed trade‑in motor vehicle resulting in an agreement by MIPL to increase the agreed trade‑in value to $11,000 once the conversion of the LDV had been completed.
According to Mr Vitasovic, Mr Krebs indicated, as a result of this discussion, that he was prepared to 'go ahead now that we have a better price'.
Mr Vitasovic said that on receipt of the full purchase price of $37,500 he then arranged for the transfer of the registration of the vehicle from Motorsport on or about 2 October 2017. The vehicle had been previously licensed on about 14 July 2017 to Perth Motorsport and the paperwork recorded that it had 28 km registered on the odometer.
Mr Vitasovic said that on 6 October 2017 Mr Krebs attended his premises in person to see the vehicle. According to him Mr Krebs refused to take delivery of the vehicle because it 'does not smell new' and he believed that the odometer had been wound back. There was also reference to a mark on the passenger side seat headlining. As a result Mr Vitasovic sent the vehicle back to Perth Motorsport on about 6 ‑ 8 October 2017 to be detailed to remove the mark.
When the vehicle was returned Mr David Vitasovic contacted Mr Krebs who attended his premises again but refused to inspect or even look at the vehicle. Mr Krebs refused to take delivery of the vehicle on the basis that 'the speedo has been wound back'. As a result of the changed position of Mr Krebs, Mr Vitasovic said he attempted to persuade the dealer whom he had purchased the vehicle from to take it back, but they were not prepared to do so.
According to Mr David Vitasovic, Mr Krebs came into his office on about 6 November 2017 and said words to the effect that: 'I want to cancel the deal'. He replied that the vehicle was Mr Krebs' and that he had paid for it in full. In the end Mr Krebs refused to take delivery of the motor vehicle.
In evidence to the learned magistrate, Mr David Vitasovic said that his motor vehicle dealer's licence was not restricted to selling either new or used vehicles. He maintained it is unconditional in this respect.
In examination‑in‑chief, Mr Vitasovic was asked what he understood was the main reason for Mr Krebs changing his mind on the deal. His evidence was as follows:[2]
Well, quite frankly, I couldn't work out a reason. He - I - the faults he brought up were a mark on the headlining on the passenger side of the vehicle, above the window line - just above the window line - and he seemed to intimate that the vehicle had been - had its speedo wound back. He mentioned something about 10 km on the speedo. I have never in my life seen 10 km on that speedo - on the odometer, and all I could suggest was he was looking at the clock. And the vehicle has been in - in my yard all this time for him to look at …
[2] ts 119.
Mr David Vitasovic confirmed that the subject vehicle remains in his yard at 24 Welshpool Road and 'it's there for anybody to look at and it is new'. There was no application by either party for the learned magistrate to conduct a view of the vehicle.
According to Mr David Vitasovic 'you would swear the vehicle smells new right now, and this is two years later'. This evidence is subject to a ground of appeal. It is an expression of subjective opinion by an experienced used car and new car salesmen. It is not clear what weight was placed on this opinion, if any, by the learned magistrate but it is not in itself determinative of the substantive factual issue of whether or not the vehicle was 'new'.
According to the evidence of Mr David Vitasovic the motor vehicle dealer industry relies upon Federal standards. Even though Mr Vitasovic maintained Mr Krebs had indicated he was willing to take a 'demo model', notwithstanding this, Mr Vitasovic maintains he was receiving a 'new' vehicle even though it had already been licensed to the dealer. However, he accepted that 'technically' it is a 'demo' but he professed he could not understand if it had only done 28 km why it was not a 'new' vehicle.
Mr Krebs cross‑examined Mr Vitasovic. The learned magistrate, quite properly, allowed a fair bit of latitude in the process. In this discourse, Mr Krebs, when the magistrate sought to clarify his position as a result of his questions to Mr Vitasovic, did not accept that he informed Mr David Vitasovic that he could not afford to pay the full price for the complete conversion of the vehicle to a campervan. Mr Krebs did however accept that there was discussion with Mr Vitasovic to the effect that he was given the option of going to a demo vehicle.

The magistrate's primary decision

On completion of the trial on 29 October 2019, Magistrate Darge reserved his decision. On 29 November 2019, he published his reasons for decision.

Paragraph [21] of the primary decision sets out the learned magistrate's findings as to what occurred as follows:
21Although the parties differed as to the precise discussions that took place there are some matters which I find did occur (I have used the Christian names for ease of reference):-
i.The claimant and David discussed the purchase of a van for conversion by Joshua;
ii.David said that he could sell a van to the claimant;
iii.The claimant wanted to buy an LDV van;
iv.David was not a distributor for LDV and would have to source it;
v.If he purchased the Van for the claimant he could obtain a good price through the use of a fleet discount;
vi.He could supply the van for $37,500;
vii.There was an initial conversation about the claimant wishing to trade‑in the Holden;
viii.There was a difficulty with the trade‑in value to be allocated to the Holden;
ix.The claimant wanted as much trade‑in as possible however David was not prepared to make a payment of anything more than $6,500;
x.The claimant indicated that this was not suitable or acceptable;
xi.David subsequently told the claimant that if he wished to have a higher value he would need to have the vehicle re‑registered as it was currently licenced in Queensland which would make it less saleable in WA.
Magistrate Darge also went on to make the following findings at [25] and [26]:
25The claimant came to the Dove Campers yard on 6 October 2017 and complained about the condition of the van. He asked that Motor Sport take back the vehicle because it was not 'new'. On 13 October 2017 the claimant received a call from David Vitasovic explaining that Motor Sport would not take it back.
26The claimant visited Dove Campers again on 20 October 2017 and again indicated he would not accept the van because it was not a new van.
Based on Mr Krebs' own admission that he signed the contract with the intention of being bound by it on 11 August 2017, Magistrate Darge concluded that there was no basis in fact for Mr Krebs to suggest that placing his signature in the wrong spot voided the contract: [32].
The learned magistrate also did not accept that 'the lack of an accurate trade‑in price for his Holden was a breach of the dealer's obligation leading to voidability of the contract': [33]. His Honour did not accept that any technical deficiency had any effect on the enforceability of the contract.
Magistrate Darge went on to find that the sole reason for the incomplete valuation details on the contract was because the parties had reached an agreement in principal on the vehicle being traded but had not reached a final agreement on the trade‑in value. This is consistent with the evidence of Mr David Vitasovic that in order to enable the entire transaction, including the conversion of the vehicle to a campervan to proceed, he agreed to the value being increased to $11,000. For the purpose of the issues raised by this appeal, it matters not because whatever price was agreed between the parties with respect to the trade‑in vehicle was to be applied to the cost of the conversion of the vehicle to a campervan.
At [37] of the primary decision, the learned magistrate identified the issue for determination as follows:
The core issue raised by the claimant was that the vehicle was not 'new' and therefore it was either a breach of contract or misleading and deceptive conduct on the part of David in representing to him that the vehicle was new.
The learned magistrate does not expressly appear to have made any finding arising out of the evidence contained in the witness statement of Mr David Vitasovic, to the effect, that he specifically discussed with Mr Krebs the requirement that he would need to purchase the vehicle from a dealer and that therefore technically it may be considered a demonstrator model, or what may be described as 'dealer new'.
The basis upon which the appeal in this court was conducted did not deal with any alleged lack or failure of the learned magistrate to make a finding on this factual matter. It is not clear on the evidence below of the extent to which Mr Krebs may have disagreed with this version of events. Obviously the magistrate had the advantage of observing the witnesses give their evidence for the purpose of making relevant findings of fact.
As mentioned, this factual controversy does not appear to be a live issue for the purpose of the appeal. The thrust of the appeal by Mr Krebs is that the vehicle was not a 'new' vehicle based on his opinion from his personal observation of the condition of the vehicle and his alleged experience in the car industry. The learned magistrate has implicitly rejected some parts of Mr Krebs' version of events as a result of his findings, but does not expressly record that he rejected any particular aspect of his evidence.
The learned magistrate made a finding, based on the evidence before him, that Mr Krebs did not at any stage suggest that the label to be placed on the vehicle was critical or important to him, just that the subject vehicle was a 'new' vehicle. There was scope in the negotiations and the contract itself to provide greater detail and specificity as to the parameters of the vehicle which were required by Mr Krebs for it to be considered a 'new' vehicle for the purpose of the agreement. This was not done.
In any event, the conduct of the parties, including based on the evidence of Mr David Vitasovic, the agreement of Mr Krebs to pay $37,500 for the vehicle, followed by actual payment, and the reliance on such payment that resulted in the purchase of the vehicle by Mr David Vitasovic are all relevant to construing the intention of the parties and the terms of the contract.
In making his finding that the subject vehicle was a 'new vehicle' for the purpose of the contract, the learned magistrate understood Mr Krebs' argument to be based on the contention that the kilometers recorded on the odometer were so low that it was suspicious. In fact, so suspicious that Mr Krebs believed that Perth Motorsport must have wound back the odometer in order to pass the vehicle off as a new vehicle. However, as the learned magistrate noted, no evidence was adduced at trial to suggest that the odometer reading was well out of the ordinary, or that the dealer had an interest in winding back the odometer to present a second‑hand vehicle as new: [43].
On the hearing of the appeal, Mr Krebs did not seek to contest the learned magistrate's findings that led to his conclusion, in this regard, namely that the motor vehicle was a new vehicle for the purpose of the contract. Nor did Mr Krebs seek to adduce any further or additional evidence, or for an opportunity to rely on such evidence.
Magistrate Darge relied upon the following reasons for his conclusion on the core issue (putting to one side the evidence of the condition of the vehicle):
44So what is a 'new' vehicle? The Motor Vehicle Dealers Act does not contain a definition. The defendant introduced the Motor Vehicle Standards Act 1989 (C'wlth). Section 5 of the standard contained the following definition:
'New vehicle means a locally made vehicle, or a new imported vehicle that, has been neither:
a) supplied to the market nor;
b)used in transporting in Australia by its manufacturer or importer; and
Includes a locally made vehicle or a new imported vehicle that has been supplied to the market but not yet used in transport in Australia.'
45The definition of 'used in transport' excludes movement to have work done on the vehicle, have it registered or for the purposes of protection or indeed for a prescribed purpose.
46The defendant also introduced the Office of State Revenue Circular BLD 4 entitled 'Vehicle Licence Duty Definition of Dutiable Value'. That circular prescribes that in order to satisfy the definition of a new vehicle it:
'must never have been used or have only been used for the purpose of selling it in the ordinary course of business, for demonstration purposes, for certain charitable purposes and for minor incidental purposes.'
47On the base of the Standards Act and the Circular this was a new vehicle. It had not been used for any purposes other than transportation to the dealer post manufacture and from the dealer to Dove Campus.
48In Annand & Thompson Pty Ltd v Trade Practices Commissions (1979) (40 FLR 1 65) the Trade Practices Commission took a Jeep dealer to court alleging misleading or deceptive conduct on its part in advertising two motor vehicles as new when they were, in fact, two years old. Franki J suggested, based on previous cases, that there were at least five possible meanings of the word 'new' when describing a motor vehicle. These were:
'i. that the vehicle has not been previously sold by retail, that is, that it is not a second‑hand vehicle;
ii.that the vehicle is a current and not a superseded model;
iii.that the vehicle has not suffered significant deterioration or been used to significant extent;
iv.that the vehicle is of recent origin; and
v.that the vehicle was one which has suffered a measure of damage but this damage has been quite effectively repaired or any damage part replaced and the vehicle is new in every respect.'
49Fisher J agreed with the idea that the word 'new' had many meanings. Just by describing a vehicle with a compliance plate of January 1975 in 1977 as 'new' was not misleading as the dealer did not misrepresent the date of manufacture and the vehicles were otherwise unused.
50The English Court of Appeal in R v Ford Motor Company Limited (1974) 1 WLR 1 220 at [1229-1228] observed that a car ceases to be 'new' once the mileage it has travelled under its own power significantly exceeds that to be expected as reasonably incidental to delivery. That case was cited in Russo v Belcar Pty Ltd (2011) SASCFC 151 where the court considered that a car would be new even if it had sustained significant damage if it was 'in practical terms perfectly repaired so that in truth it can be said after repairs have been effected that the car is as good as new'.
For these reasons, and on this basis of the evidence, Magistrate Darge by way of conclusion made the following important findings:
1.There was no evidence produced at the trial to show that the vehicle was an old or superseded model, and in any event, the age of the vehicle did not change its status as a new vehicle.
2.The odometer reading of the vehicle, which he accepted was less than 50 km, was consistent with transportation between the various parties based on the known history of the vehicle on the evidence.
3.There is no evidence that the odometer was wound back.
4.The transfer history of the vehicle in the context and circumstances at the relevant time did not change the status of the vehicle from new to second‑hand.
I would add that there is also no evidence that the vehicle had been used as a demonstrator vehicle, or used by a third party for commercial or private transport means. This is an obvious gap in the evidence adduced by Mr Krebs, about which there is no explanation. Obviously, no adverse inference is or could be drawn, in the circumstances of this case, against Mr Krebs.
The learned magistrate considered the parties' evidence in relation to the condition of the vehicle after it had been transferred to MIPL and relocated to its yard for delivery to Mr Krebs. At [63] there is an error as the learned magistrate said 'Joshua described the vehicle as having a new car smell even now'. The witness was Mr David Vitasovic.[3] If it had been Mr Joshua Vitasovic, then it is arguable that he did not have the experience or training in the motor vehicle industry to express such an opinion. In my view, whatever weight the learned magistrate may have given to this evidence, it is not of sufficient import or relevance to change the factual findings and conclusions reached when regard is had to the whole of the evidence that was adduced.
[3] ts 120.
The learned magistrate accepted there was a handprint on the interior, which of course was cleaned at the earliest opportunity. There is some minor difference in the evidence of the parties as to the condition of the vehicle at different times but the overall external impression of the vehicle can be seen from the photographs produced at trial by Mr Krebs.[4]
[4] Exhibit 8.
As mentioned, the learned magistrate did not make specific findings with respect to every aspect of the evidence concerning the condition of the vehicle but he was plainly satisfied that the matters referred to and raised by Mr Krebs were of no significance by reason of his finding at [64] that Mr Krebs had failed to establish that the condition of the vehicle was such that it was not 'new'.
Accordingly, the learned magistrate found that the condition of the vehicle at the time of delivery was not such as to allow Mr Krebs to avoid the contract. Mr Krebs' conduct in this regard has not been described in legal terms as a repudiation or wrongful termination of the contract – perhaps because he is self-represented, or perhaps because the respondents have not sort to accept or rely on his repudiatory conduct. This aspect of the matter seems to be extant and does not arise for determination in this appeal.
In the result, Mr Krebs failed to persuade the learned magistrate that the subject vehicle was not a 'new vehicle' for the purpose of the contract by reason of any one, or combination, of the matters which he sought to rely upon which included:
(a)the odometer reading;
(b)the prior vehicle licensing history of the vehicle;
(c)the alleged unenforceability of the contract pursuant to statute;
(d)the physical condition of the vehicle at the time of delivery; and
(e)the acquisition cost of the vehicle by MIPL, namely $31,000.
As already mentioned, Mr Krebs did not seek leave to adduce any additional or further evidence in support of his claims. Therefore this appeal must be determined on the basis of the evidence adduced during the trial in the Magistrates Court.

General principles of law governing the construction of contracts

It is instructive in this case to refer to a recent Court of Appeal decision in Pilbara Iron Ore Pty Ltd v Ammon [2020] WASCA 92, where Buss P, Murphy JA and Vaughan JA set out some fundamental tenets of contract law concerning the construction of contracts and determining the meaning of words used in an agreement:
85The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract. The instrument must be read as a whole.⁸⁵
86The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation.⁸⁶ Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement.⁸⁷ However, it must also be borne in mind that business commonsense may be a topic on which minds may differ.⁸⁸
87At one time, the terms 'construction' and 'interpretation' were held to signify different things. The word 'interpretation' was said to concern the meaning of words, whereas 'construction' concerned the legal effect of the words used. That distinction has not been maintained, on the basis that notions of meaning and construction are interdependent.⁸⁹ A term may be deduced by implication or interpretation from the express terms of the contract.⁹⁰
88The task of determining whether a contract contains terms implied by law or in fact (to give business efficacy to the contract) is undertaken in order to ascertain the meaning and effect of the contract as a whole and is thereby an exercise in construction.⁹¹ Nevertheless, the process of implication is not one of 'interpretation' in the narrow sense, in that it does not involve assigning a meaning to a particular express provision in the contract.⁹² Rather, an implied term in fact (to give business efficacy to the contract) is a term that the parties have not actually agreed upon, but which, it is presumed, the parties would have agreed upon had they turned their minds to it. For reasons which include not rewriting the contract for the parties, the courts are slow to imply a term.⁹³ The party alleging that a term should be implied bears the onus of proof.⁹⁴ The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to turn their minds to address the question in issue.⁹⁵
89As part of the overall process of construing a contract to determine its meaning and effect, the implication of terms is governed by the objective theory of contract law.⁹⁶
90Further, a contract can only have one correct meaning. Thus, its construction cannot alter depending on the events which happen, but the operation of the contract on its proper construction can.⁹⁷
91The cumulative (but related) criteria for the implication of terms in fact (to give business efficacy to the contract) in a wholly written contract such as the JVA were set out by the Privy Council in BP Refinery.⁹⁸ The implied term must be:
1.Reasonable and equitable.
2.Necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it.
3.So obvious that it 'goes without saying'.
4.Capable of clear expression.
5.Consistent with, and not contradict, any express term of the contract.
92On the other hand, the BP Refinery criteria are not rigidly applied in informal contracts, ie, where the parties have never attempted to reduce their contract to complete written form.⁹⁹ It has been said that, in relation to informal contracts, the true question is whether the implication of the particular term is necessary for the reasonable or effective operation of the contract in the circumstances of the case.¹⁰⁰
(FN⁸⁵: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [46] ‑ [51], [59]; Victoria v Tatts Group Ltd [2016] HCA 5; (2016) 328 ALR 564 [51]; Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42].)
(⁶: Electricity Generation Corp v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 [35]; Hancock Prospecting Pty Ltd v BHP Minerals Pty Ltd [2003] WASCA 259 [72].)
(FN⁸⁷: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017]= HCA 12; (2017) 261 CLR 544 [17]; Woodside [35]; Black Box [42(9)].)
(FN⁸⁸: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 [43]; Black Box [42(9)].)
(FN⁸⁹: Collector of Customs v Agfa‑Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 396 - 397; Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 [8].)
(FN⁹⁰: Marcus Clark (Victoria) Ltd v Brown [1928] HCA 12; (1928) 40 CLR 540, 553 ‑ 554; Vickery v Waitaki International Ltd [1992] 2 NZLR 58, 64; Carlton & United Breweries Ltd v Tooth & Co Ltd (1985) 6 IPR 319, 320; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 [28]; Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79; (2016) 50 WAR 226 [66].)
(FN⁹¹: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, 345 ‑ 346; Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 [22]; Sino Iron [299].)
(FN⁹²: Codelfa (345).)
(FN⁹³: Codelfa (346).)
(FN⁹⁴: Heimann v The Commonwealth (1938) 38 SR (NSW) 691, 695.)
(FN⁹⁵: Codelfa (346).)
(FN⁹⁶: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Codelfa (352).)
(FN⁹⁷: Harrington v Browne [1917] HCA 36; (1917) 23 CLR 297, 307; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 442; Sino Iron [172].)
(FN⁹⁸: BP Refinery (283); see also Codelfa (347); Khoury v Government Insurance Office of NSW [1984] HCA 55; (1984) 165 CLR 622, 636; Servcorp [72]; Sino Iron [254].)
(FN⁹⁹: Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984)156 CLR 41, 121; Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539, 572 ‑ 573; Byrne (422), (441) ‑ (442).)
(FN¹⁰⁰: Byrne (422), (442); Hawkins (573).)

Disposition

There is no dispute that the agreement between the parties required MIPL to provide Mr Krebs with a 'new' LDV 80 van with an automatic transmission, diesel engine and one which was white in colour. It therefore required the learned magistrate to determine whether the subject vehicle was a 'new' vehicle for the purpose of the contract having regard to the terms of the agreement and the context of the negotiations and background circumstances that resulted in the contract being entered into. There can be no dispute that the written agreement signed by the parties and dated 11 August 2017 records the material terms and conditions of the agreement.
In his submissions, Mr Krebs said 'I did not sign this agreement in writing'. This is contrary to Mr Krebs' evidence that he did sign the contract on 11 August 2017. In fairness to Mr Krebs, what I understand him to be saying is that either because he did not sign the contract on the line immediately following the words 'Signed by Purchaser' or because some details on the form were 'TBA', that it did not therefore constitute a legally binding contract.
In my view, the contract dated 11 August 2017 was signed by Mr Krebs as the purchaser. I also find that Mr Krebs signed the contract a second time to confirm that he had received a copy of the contract from the dealer. The juxtaposition of his signature on the form is such that this is the only reasonable conclusion. This finding is also, in any event, supported by Mr Krebs' own conduct in paying the full purchase price prior to acquisition of the subject vehicle by MIPL for delivery to him, and his attendance to see the vehicle when it became available in the respondent's yard.
I am not persuaded by Mr Krebs that there has been any relevant or material non‑compliance with the provisions of the MVD Act which can be relied upon by him to void the contract. I accept that s 42A of the MVD Act contains requirements that a contract or agreement for the sale of a vehicle, irrespective of whether it is a new or used vehicle, must be in writing signed by the dealer and the purchaser, and contain the prescribed particulars, terms and conditions. Those terms and conditions are present on the document signed by the parties on 11 August 2017.
The purpose of the MVD Act is to regulate dealing in motor vehicles. The Act imposes statutory obligations and penalties for non‑compliance on motor vehicle dealers involved in the industry. These include the imposition of a substantial fine of up to $50,000 on any person involved in the alteration of the reading of an odometer on a vehicle.
There is nothing in the MVD Act which provides that a contract or agreement for the sale of a vehicle is void, voidable or unenforceable if it is not in writing and signed by the purchaser and the dealer. This legal issue does not arise, in any event, in the circumstances of this case because there was a written contract signed by the parties which, on the face of it, complied with the regulatory requirements of s 42A. Whether the subject vehicle is a 'new' vehicle for the purpose of the contract is an entirely separate question of fact and law.
A court in determining factual matters is not permitted to speculate or give credence to conspiracy theories without a basal foundation in the evidence from which findings can be made. Mr Krebs has not produced one scintilla of evidence, expert or otherwise, to support his subjective suspicion that the odometer of the vehicle has been wound back. The vehicle is still in the possession of the respondents who have indicated that it is available for inspection.
In addition, the learned magistrate did not receive any evidence as to the process of 'altering the odometer reading' and did not receive any evidence from the dealer as to the history of the vehicle while in its possession prior to its transfer to MIPL for delivery to Mr Krebs. As already mentioned, this is a substantial and important lacuna in the underlying evidence.
Whilst the court understands the basis of Mr Krebs' suspicion and why it fuels his conspiracy theory that the odometer has been wound back, there is no independent or objective evidence that would enable the court to make such a finding. The onus is, of course, on a party to litigation to obtain and present the evidence that supports its contentions and there is no scope for a judicial fact‑finder to embark upon their own inquisitorial process to attempt to uncover evidence which might or might not support one party's position or theories.
Similarly, any position adopted by Mr Krebs based on his subjective opinion about the price paid for the subject vehicle by MIPL cannot logically on its own result in a finding of fact that the vehicle was not a 'new' vehicle. Mr Krebs' submission in this regard, needs to be understood against the undisputed background of the evidence as to the reason for Mr Krebs obtaining the subject vehicle, including in the way he did to allegedly obtain the benefit of a fleet discount. The vehicle registration history, which is merely a paper trail, does not preclude a finding that the vehicle was a 'new' vehicle at the relevant time of delivery to Mr Krebs.
Mr Krebs has not demonstrated that there was any error of law or wrong exercise of discretion by the learned magistrate in refusing to allow Mr Benari to give evidence of his conversations with third parties or about 'without prejudice' settlement negotiations undertaken on behalf of Mr Krebs to resolve the dispute. This was the scope of the evidence that Mr Krebs indicated to the learned magistrate that he wished to adduce from Mr Benari. As a matter of law the proposed evidence was plainly irrelevant to the issues in dispute and in any event inadmissible. Accordingly, it was quite properly, not allowed to be adduced by Mr Krebs. This finding, and the magistrate's decision in this regard, does not involve the exercise of judicial discretion – the evidence was not, as a matter of law, admissible in the trial. Put another way, if Mr Krebs had been permitted to adduce the evidence it would have constituted an error of law by the learned magistrate.
As to Mr Krebs' submissions about the condition of the vehicle and the evidence relied upon in this regard, it must be observed that there is no demonstrable error of fact by the learned magistrate in his analysis of the evidence in coming to the conclusion that the vehicle was, for present purposes, a 'new' vehicle. It is to be expected that every vehicle will need to be detailed and prepared for delivery to a purchaser to ensure it is in pristine condition, irrespective of whether it is a new vehicle or a used vehicle.
On a proper consideration of the available evidence before the learned magistrate, Mr Krebs has failed to persuade this court that the magistrate erred in law or fact in determining that the vehicle was not a 'new' vehicle for the purpose of the agreement.
Accordingly, Mr Krebs has failed to demonstrate on appeal that the learned magistrate was wrong by deciding that he was not lawfully entitled to terminate the agreement because the vehicle was not a 'new vehicle', or because the agreement was unenforceable because of a failure to comply with a relevant statutory requirement, or because of some form of alleged fraud by Mr David Vitasovic.
If there is some aspect of alleged non-compliance by MIPL or Mr David Vitasovic with the statutory obligations of motor vehicle dealers as prescribed by the MVD Act which arises out of the agreement, then this will no doubt be open to investigation in accordance with pt 6 of the Fair Trading Act 2010.
As mentioned, Mr Krebs has not demonstrated that the learned magistrate made an error of law or wrong exercise in his discretion in not allowing Mr Benari to give evidence of the proposed inadmissible hearsay opinion evidence, or evidence of the without prejudice negotiations conducted by him on behalf of Mr Krebs to attempt to resolve the dispute.
I am also not persuaded that there was a wrongly exercised discretion by the magistrate in allowing Mr David Vitasovic to give direct evidence of his opinion about the 'new car smell' in the vehicle. In any event, it does not appear that the magistrate gave any material weight to this part of the evidence in coming to his conclusions.
The learned magistrate carefully explained to Mr Krebs in the course of the trial, in particular at the beginning and again later in the trial, the benefits of finding a resolution of the dispute rather than proceeding with the claim by reason, in part, of the risk of an adverse costs order.
The costs order made by Magistrate Darge is the usual costs order namely, costs follow the event. That is, in civil litigation the losing party pays the 'party and party costs' of the winning party, if the winning party is legally represented. The costs order made by Magistrate Darge that Mr Krebs pay the respondents' costs of the claim, including reserved costs, and the costs of the counterclaim was the only proper exercise of the discretionary power to order costs in the circumstances. On appeal, no argument or reason was advanced by Mr Krebs as to why any part of the reserved costs ought not follow the event in the usual way.

Conclusion

For these reasons, the time for Mr Krebs to lodge the notice of appeal should be extended, however the appeal must be dismissed.
The parties should be heard on the form of the final orders in accordance with these reasons, and also on the costs of the appeal.
Before this occurs, and further legal costs and time is expended by the parties on the matter, the court would be prepared to order mediation by a registrar as there are still unresolved legal issues for both parties because the vehicle the subject of this litigation, which has been paid for in full by Mr Krebs, is still in the possession of the respondents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MD
Associate to Judge Stevenson
30 JUNE 2020