JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 February 2018
DATE OF JUDGMENT:	22 March 2018
CASE MAY BE CITED AS:	Roehlen v Mikhail
MEDIUM NEUTRAL CITATION:	[2018] VSC 121

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APPEAL – Magistrates’ Court of Victoria – Whether magistrate erred in finding contract void for uncertainty – Whether magistrate erred in failing to find damages for compensable loss – Appeal allowed – Matter remitted to Magistrates’ Court.

CONTRACT – Whether contract void for uncertainty – Whether failure to agree on price is essential term – Whether court may imply term into contract – Contract enforceable – Court will strive to infer failure to agree on price not essential term – Australian and New Zealand Banking Group v Frost Holdings Pty Ltd [1989] VR 695 – May and Butcher Ltd v R [1934] 2 KB 17 – Moonlighting International Pty Ltd v International Lighting Pty Ltd [2000] FCA 41 – Wenning v Robinson [1964] NSWR 614.

DAMAGES – Whether plaintiff suffered compensable loss for loss of use of vehicle – Whether res inter alios acta applies – Whether distinction between direct loss and consequential loss – No distinction between direct loss and consequential loss in Australian common law – Anthanasopoulos v Moseley (2001) 52 NSWLR 262 – Burdis v Livsey [2002] EWCA Civ 510 – Dimond v Lovell [2000] 2 All ER 897 – Griffiths v Kerkemeyer (1977) 139 CLR 161 – Powercor Australia Ltd v Thomas [2012] VSCA 87 – Saric v Tehan (2011) 33 VR 632.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A. Klotz	Martin P Board & Associates
For the Respondent	Mr P. D. Crutchfield QC with Mr S. J. Ryan	Mills Oakley

HIS HONOUR:

Overview

The appellant’s vehicle was damaged as a result of the negligent driving of the respondent. The property damage claim was resolved without litigation. The appellant’s claim for loss of use of his vehicle was the subject of an arbitration at the Broadmeadows Magistrates’ Court on 3 May 2017. In short, the appellant had entered into a hire car agreement with a third party (Right2Drive) for the supply of a vehicle while his Ford Flacon was being repaired.

The appellant argued that his loss of vehicle use was a compensable loss that should be calculated either at market rates or at the actual invoice cost of its temporary replacement. The respondent submitted that there was no actual loss to the appellant as his contract with Right2Drive was void for uncertainty. In these circumstances it was contended that because the loss claimed was a future or consequential loss (as opposed to a direct loss) it never actually crystallized. The loss was thus avoided and therefore not recoverable.

Her Honour found for the respondent, concluding (I infer) that because the hire contract with Right2Drive was void for uncertainty,…

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 Roehlen v Mikhail

Details

AGLC: Roehlen v Mikhail [2018] VSC 121
Case: [2018] VSC 121
Decision Date: 22 March 2018

CaseChat Overview and Summary

The appeal before the Court of Appeal in Victoria concerned a dispute between Roehlen and Mikhail over the validity of a contract and the awarding of damages. The case originated in the Magistrates' Court of Victoria, where the magistrate found that the contract between the parties was void for uncertainty, and dismissed the plaintiff's claim for damages. Roehlen appealed both findings. The appeal raised two primary issues: firstly, whether the magistrate erred in finding that the contract was void for uncertainty, and secondly, whether the magistrate erred in failing to find that Roehlen suffered a compensable loss for the loss of use of a vehicle.

The Court of Appeal found that the magistrate erred in finding the contract void for uncertainty. The Court noted that the failure to agree on price was not necessarily an essential term of the contract, and that the court should strive to infer that it was not. The Court cited Australian and New Zealand Banking Group v Frost Holdings Pty Ltd, May and Butcher Ltd v R, Moonlighting International Pty Ltd v International Lighting Pty Ltd, and Wenning v Robinson to support this conclusion. The Court also found that the magistrate erred in failing to award damages for the loss of use of the vehicle, noting that there is no distinction between direct loss and consequential loss in Australian common law, and that the plaintiff had suffered a compensable loss. The Court cited Anthanasopoulos v Moseley, Burdis v Livsey, Dimond v Lovell, Griffiths v Kerkemeyer, Powercor Australia Ltd v Thomas, and Saric v Tehan in support of this finding.

The Court of Appeal allowed the appeal, and remitted the matter to the Magistrates' Court of Victoria for further consideration in light of the Court's findings. The Court found that the contract was enforceable, and that Roehlen was entitled to damages for the loss of use of the vehicle. The Court did not make any specific orders regarding the amount of damages to be awarded, leaving that matter to be determined by the Magistrates' Court.

Orders