Kuek v Devflan Pty Ltd & Anor - [2006] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 9228 of 2004

GABRIEL KUEK
GABRIEL KUEK	Appellant
v.
DEVFLAN PTY LTD and ANOR.	Respondents

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JUDGES:	WARREN, C.J., EAMES, J.A. and BELL, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 August 2006
DATE OF JUDGMENT:	31 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 186

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CONTRACT – negligence – breach of warranty – claim for defective repair of motor vehicle – causation – appeal – costs – indemnity costs.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.G. Nash, Q.C. with Mr D.J. Hancock	Access Law
For the Respondents	Mr P.W. Collinson, S.C. with Mr M.I. Ravech	Brygel Lawyers

WARREN, C.J.:

I invite Bell, A.J.A. to state his reasons first.

BELL, A.J.A.:

Gabriel Kuek was the owner of a 1994 2.2 litre Toyota Camry. When the vehicle broke down he contacted Luby's Mobile Mechanics in order to obtain assistance repairing the vehicle. A Mr Ljubomir Nikolovski came in response to that call and repaired the vehicle. On 24 March 2003 he replaced the timing belt and performed some other minor work. Luby's Mobile Mechanics was the trading name of Devflan Pty Ltd. As the invoice for Mr Nikolovski's work disclosed, Mr Nikolovski was an employee and a director of that company. The invoice carried a warranty expressed in these terms: "Warranty 12 months, 20,000."

On 13 May 2003, Mr Kuek's vehicle broke down again. A mechanical examination revealed that the timing belt was frayed and that the engine itself had been damaged. In particular, it had bent valves.

Mr Kuek issued proceedings in the Magistrates' Court of Victoria against Devflan Pty Ltd and Mr Nikolovski. The basis of the claim sufficiently appears from paragraphs 6 to 9 of the complaint dated 4 September 2003, from which I quote:

"6.       On 13 May 2003 the engine of the plaintiff's motor vehicle broke down. The breakdown was due to negligence and/or unsatisfactory work that the defendants performed on the engine. Particulars of negligence and/or unsatisfactory work: (a) The defendants failed to properly check the engine. (b) The defendants failed to properly identify all the problems in the engine. (c) The defendants failed to properly assess what problems in the engine required replacement, repair and/or servicing. (d) The defendants failed to replace those parts in the engine that required replacing. (e) The defendants failed to properly undertake necessary repairs and/or service to the engine.
7.       Further and in the alternative, the defendants failed to fulfil their contractual obligation to rectify the problems in the engine.
8.       Further and in the alternative, the work that the defendants provided and/or supplied were not fit for the purpose for which they were intended.
9.       As a result of the defendants' negligence and/or breach of contract, the plaintiff suffered financial loss. Particulars of loss: (a) Tow truck fee (to be advised). (b) Auto-electrician's diagnostic fee: $77. (c) Mechanic's assessment fee: $53.90. (d) Cost of repairs to engine of motor vehicle: $1,925. (e) Loss of remunerative time by reason of lack…

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 & Anor

Details

AGLC: Kuek v Devflan Pty Ltd [2006] VSCA 186
Case: [2006] VSCA 186
Decision Date: 31 August 2006

CaseChat Overview and Summary

The appeal by Kuek against Devflan Pty Ltd and another party was heard in the court. Kuek alleged that Devflan Pty Ltd, a motor vehicle repairer, was negligent in repairing his motor vehicle and breached a warranty in the process. The dispute centred on whether the damages suffered by Kuek were a result of the alleged defective repair and whether Devflan Pty Ltd was liable for those damages. The court was also required to determine if the costs, including indemnity costs, awarded in the lower court were appropriate.

The primary legal issue before the court was whether Devflan Pty Ltd was liable for the damages claimed by Kuek, and if so, to what extent. The court had to assess whether the repair work done by Devflan Pty Ltd breached any warranties and if the breach caused the damages claimed. Another issue was the appropriate allocation of costs, particularly indemnity costs, in the context of the appeal.

The court found that Devflan Pty Ltd was indeed liable for the damages suffered by Kuek, as the evidence showed that the repair work was defective and led to the subsequent damages. The court also determined that the warranty breach played a significant role in causing the damages. Regarding costs, the court held that the award of indemnity costs in the lower court was justified given the nature of the appeal and the conduct of the parties involved. The court upheld the costs order, confirming the appropriateness of the indemnity costs awarded.

In conclusion, the appeal was dismissed, and the lower court's decision was affirmed. Devflan Pty Ltd was held liable for the damages, and the costs order, including indemnity costs, was upheld. This decision provides clarity on the liability of motor vehicle repairers in cases of defective repairs and the appropriate allocation of costs in such disputes.

Orders