JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2023
DATE OF JUDGMENT:	20 December 2023
CASE MAY BE CITED AS:	Tran v Packaging Logistics Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 775

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APPEALS – Appeals from Magistrates’ Court of Victoria – Assessment of damages for breach of contract in supply and installation of doors and windows – Where Magistrate allowed no damages for doors and windows that had to be replaced – Whether or when to assess by reference to rectification or replacement – Whether there was evidence that could support assessment by reference to replacement – Whether a quote for replacement was admissible – Whether a quote for replacement constituted expert evidence – Whether error to conclude global quote could not be used to assess apportioned damages – Whether expert evidence of cost of rectification inadmissible due to lack of detail – Application of Australian Consumer Law – Haines v Bendall (1991) 172 CLR 60 – Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 – Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167 – JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 – Schedule 2 to the Competition and Consumer Act 2010 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Appellants in S ECI 2022 04572 / Respondents in S ECI 2022 05112	Mr S Stuckey KC and Mr J Stavris	Indovino's Lawyers
For the Respondent in S ECI 2022 04572 / Appellant in S ECI 2022 05112	Mr B Mason	Phillips & Wilkins

TABLE OF CONTENTS

A. Background.................................................................................................................................... 1

B. The evidence led relevant to quantum...................................................................................... 3

B.1The evidence relating to the rectification or replacement of the doors and windows 3
B.2.The evidence in relation to certification of the glass....................................................... 5

C. Was the evidence of Mr Samartzis and Mr Spencer admissible and probative?............ 6

C.1The quote and Mr Samartzis................................................................................................ 6
C.2Mr Spencer’s evidence.......................................................................................................... 8

D. Did the Magistrate err in law in his approach to the assessment of damages?............. 11

D.1.The test for damages.......................................................................................................... 11
D.2Reminder: how the Magistrate approached the assessment of damages................... 12
D.3 Did the Magistrate err by making an implicit finding that rectification cost less than replacement?...................................................................................................................... 13
D.4Did the Magistrate consider relevant evidence when deciding on his approach to the assessment of damages?................................................................................................... 14
D.5Did the Magistrate err by concluding that the quote did not permit an assessment of the cost of replacement of some of the doors and windows?.................................................... 15

E. The claim under the Australian Consumer Law................................................................... 18

F. The application to reopen......................................................................................................... 19

G. What should now be done?..................................................................................................... 21

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 Tran v Packaging Logistics Pty Ltd

Details

AGLC: Tran v Packaging Logistics Pty Ltd [2023] VSC 775
Case: [2023] VSC 775
Decision Date: 20 December 2023

CaseChat Overview and Summary

The appeal in Tran v Packaging Logistics Pty Ltd involved the respondents, Tran, who sought damages for the supply and installation of doors and windows which were found to be defective. The case was heard in the County Court of Victoria. The initial decision by the Magistrates’ Court had disallowed any damages for the replacement of the doors and windows, which was the crux of the appeal before the County Court.

The key legal issues before the County Court were whether damages for the breach of contract could be assessed by reference to the cost of replacement or rectification, and if so, what evidence was necessary to support such an assessment. Specifically, the court needed to determine if a quote for replacement doors and windows could be admitted as evidence and if it constituted expert evidence. Furthermore, the court examined whether it was an error to conclude that a global quote could not be used to assess apportioned damages. Lastly, the court considered whether the expert evidence on the cost of rectification was inadmissible due to a lack of detail.

The County Court found that the assessment of damages should indeed be by reference to replacement, given the extent of the defects. The court accepted that a quote for replacement doors and windows was admissible and could be considered as expert evidence, provided it was relevant and reliable. The court also held that it was not an error to use a global quote to assess apportioned damages, as the quote was relevant to the specific damages claimed. Finally, the court determined that the expert evidence, although lacking in some detail, was sufficient to establish the cost of rectification and was therefore admissible.

The County Court allowed the appeal and remitted the case to the Magistrates’ Court for reassessment of damages by reference to replacement. The Magistrates’ Court was directed to consider the evidence of the cost of replacement and the expert evidence on rectification costs in determining the appropriate amount of damages.

Orders