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Krebs v Vitasovic

Krebs v Vitasovic

Case [2020] WADC 94 30 June 2020

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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…

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 Krebs v Vitasovic

Details

AGLC: Krebs v Vitasovic [2020] WADC 94
Case: [2020] WADC 94
Decision Date: 30 JUNE 2020

CaseChat Overview and Summary

The matter before the court was an appeal from the Magistrates Court of Victoria. The appellant, Mr Krebs, sought an extension of time to appeal a decision related to a contract for the sale of a new motor vehicle. The respondent, Ms Vitasovic, contested the appeal, arguing that the contract was for a new motor vehicle and that there was no basis for extending the appeal time. The primary legal issues were whether there was any discernible error of fact or law in the original decision and whether the Magistrates Court had wrongly exercised its discretion in denying the extension of time. The court was also asked to consider the costs associated with the appeal.

The court examined the contract and the arguments presented by both parties. It found that the meaning of 'new' in the contract was ambiguous and that there was a possibility of a factual error in the Magistrates Court's interpretation. The court held that the Magistrates Court had wrongly exercised its discretion in denying the extension of time, as there was a reasonable possibility of a legal error in the original decision. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates Court for reconsideration. The court also ordered that the parties bear their own costs for the appeal.

Orders