Kuek v Devflan Pty Ltd

[2005] VSC 163

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9228 of 2004

GABRIEL KUEK

Appellant

v

DEVFLAN PTY LIMITED (ACN 064 849 994)

LJUBOMIR NIKOLOVSKI

First Respondent

Second Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2005
DATE OF JUDGMENT:	18 May 2005
CASE MAY BE CITED AS:	Kuek v Devflan Pty Ltd
MEDIUM NEUTRAL CITATION:	[2005] VSC 163

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APPEAL – question of law – s.109 Magistrates’ Court Act 1989 – whether it was open to Magistrate to hold that there was no relevant contractual relationship between appellant and first respondent – whether Magistrate considered the extent of the warranty given.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Perkins	Access Law
For the Respondents	Mr M Ravech	Brygel Lawyers

HER HONOUR:

Introduction

1. This is an appeal on a question of law under section 109 of the Magistrates’ Court Act 1989 from a final order made on 22 October 2004 by the Magistrates’ Court at Heidelberg constituted by Mr Hassard, Magistrate, whereby the Magistrate dismissed the appellant’s claim against the respondents and ordered the appellant to pay the respondents’ costs of $5,909.00.

1. On 17 December 2004 Master Wheeler ordered the appeal to be brought on the following questions of law:

(a)Was it open to the learned Magistrate to hold that there was no relevant contractual relationship between the First Respondent and the Appellant?

(b)Did the learned Magistrate consider the extent of the warranty (exhibit GK4 to the affidavit of Gabriel Kuek sworn 22 November 2004) particularly as to whether such warranty covered:

(i)initial inspection of [sic] and advice;  and

(ii)consequential damages as a result of work performed.

(c)Did the learned Magistrate in weighing up the evidence of the Appellant’s witness [sic] against those of the Respondents, adopt different criteria to wit:

(i)in the case of the Appellant’s witness [sic] Pace and Salameh he rejected their evidence because:

(a)they were not independent as they were involved in replacing the Appellant’s engine;  and

(b)their opinions were based upon their reference to a trade manual or a repair manual (being exhibits GK10 GK11 to the said affidavit) which he found to be hearsay:

(ii)whereas in respect of the Respondents’ witnesses Herzog and Pianozolla, he relied upon their opinion as experts despite the fact that they had never inspected the relevant engine.

1. After hearing some submissions I ruled that question (c) was not an appropriate question on this appeal, as not raising a question of law, and the matter proceeded on the basis of questions (a) and (b) only.

1. The first respondent (“Devflan”) carries on a business described as “mechanic and autoelectrical”, trading as “Lubi’s Mobile”. The second respondent (“Mr Nikolovski”) is described in his expert witness statement as “a director of [Devflan] a company which he owns together with his wife”.   On 24 March 2003 Mr Nikolovski carried out some repairs on the appellant’s motor vehicle.  The repairs involved installing a new timing belt and associated parts.   When the work was completed Mr Nikolovski handed an invoice to the appellant, showing total charges of $705.32, which the appellant paid.  The heading of the invoice is “Devflan Pty Ltd t/as Lubi’s mobile” and the invoice includes the statement “Warranty 12 months or [illegible to me;  found by the Magistrate to be 20,000] km.”

1. On 13 May 2003, within the warranty period, the engine of the vehicle broke down, and the timing belt was found to be damaged.   The appellant brought proceedings in the Magistrates’ Court at Heidelberg claiming against both respondents damages of $3,855.90  arising from breach of contract and negligence.

Question(a)

1. In the course of delivering his oral findings the Magistrate said:

First, with whom did the plaintiff contract?   As I find the subject contract was with the second named defendant Mr Nikolovski.   On his evidence, Mr Kuek initially spoke to Mr Nikolovski by phone after randomly selecting the phone book entry Lubis mobile.   Following the first contact phone conversation Mr Nikolovski attended Mr Kuek’s home on Monday the 24^th March 2003 and carried out repairs.   There is no evidence, indeed no suggestion that the corporate personality, the first named defendant was known to Mr Kuek within the material time frame.   The contrary is implicit, for his letter of demand dated the 20^th May 2003 was addressed to Lubi’s mobile, notably not the company.   I find there was no contractual relationship between the plaintiff and first named defendant, nor is there any evidence to support an action in negligence against it.   The claim against the first named defendant is dismissed.

1. In Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 at 11 Stephen J said:

In the case of decisions of magistrates the position in Victoria is well established by a line of decisions culminating in Taylor v Armour & Co. Pty. Ltd., [1962] VR 346, in which the Full Court of this State held that in the case of any question of fact the Court should treat the matter as an appeal from the verdict of a jury and should not make up its own mind upon the evidence but rather confine itself to seeing whether there was evidence upon which the magistrate might, as a reasonable man, come to the conclusion to which he did come. In saying this the Full Court stated that it was following the view of Herring, CJ, in Young v Paddle Bros. Pty. Ltd., [1956] VLR 38; [1956] ALR 301. The Chief Justice, in that case, adopted as the test whether "on any reasonable view of the evidence that decision can be supported"; a party aggrieved can thus only succeed if a decision contrary to the view of the magistrate is "the only possible decision that the evidence on any reasonable view can support" (see at VLR p. 41).

1. I am satisfied, considering the matter on the basis of that passage, that the facts found by the Magistrate are based on evidence upon which he might, as a reasonable man, have come to the conclusion to which he did come.   Accordingly, the answer to question (a) must be Yes.

Question (b)

1. As to the warranty, the Magistrate said p 2 :

As to contractual sequelae, I find the specific but unelaborated reference to twelve months or twenty thousand kilometres warranty on exhibit A [the invoice] was a warranty as to fitness and service and in effect mimicked the statutory obligation under the Fair Trading Act. In that vein as to the issue of merchantable quality of the components, the plaintiff was confronted with evidence of contemporaneous purchase of new parts from a reputable supplier. As to the quality of the work performed consideration merges with the allegation of negligence.

1. It is clear that the Magistrate had considered the extent of the warranty to enable him to describe it by reference as mimicking “the statutory obligation under the Fair Trading Act”. That “statutory obligation” derives from the provisions of Part 2A of the Fair Trading Act 1999 (“the Act”), which was inserted in the Act by section 11 of the Fair Trading (Amendment) Act 2003, (“the amending Act”) and came into operation on 1 June 2004, several months before the making of the order here under appeal. I note that the requirement of merchantable quality, to which the Magistrate refers indirectly, is provided for in section 32I of the Act, one of the provisions of Part 2A introduced into the Act by the amending Act. The answer to question (b) is thus also Yes.

1. Both remaining questions having been answered in the affirmative, the appeal is dismissed.   Counsel may wish to make submissions as to costs.

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