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

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

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.

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.

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.

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…

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 Kuek v Devflan Pty Ltd

Details

AGLC: Kuek v Devflan Pty Ltd [2005] VSC 163
Case: [2005] VSC 163
Decision Date: 18 May 2005

CaseChat Overview and Summary

In the case of Kuek v Devflan Pty Ltd, the appellant, Kuek, sought to appeal a decision of the Magistrates’ Court of Victoria. The dispute centered around a contractual relationship between Kuek and Devflan Pty Ltd, the first respondent. Kuek contended that there was a contractual agreement that entitled them to a warranty from Devflan Pty Ltd regarding the quality of a property they had purchased. The first respondent argued that no such contractual relationship existed and that the claim was therefore invalid.

The central legal issue before the court was whether it was open to the Magistrate to determine that there was no relevant contractual relationship between the parties. Additionally, the court had to consider whether the Magistrate had appropriately assessed the extent of any warranty that may have been provided. The appellant argued that the Magistrate had failed to adequately consider the terms of the contract and the nature of the warranty claimed.

The court examined the Magistrate's reasoning and concluded that the Magistrate had indeed considered the contractual terms and the nature of the warranty in question. The court found that the Magistrate's decision was based on a proper interpretation of the evidence and the applicable law. The court held that it was open to the Magistrate to conclude that no contractual relationship existed under the terms claimed by the appellant. Furthermore, the court found that the Magistrate had sufficiently considered the extent of any warranty provided, thereby affirming the lower court’s decision.

No further orders were made by the court in light of its findings.

Orders