Weldemichael v Duy Tri Ha - [2022] VSC 817

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 00402

KIFLE WELDEMICHAEL	Appellant
v
DUY TRI HA (ABN 99 726 981 895) T/AS COLLINGWOOD MOTOR BODY REPAIRS	Respondent

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S ECI 2019 00402

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2022
DATE OF JUDGMENT:	22 December 2022
CASE MAY BE CITED AS:	Weldemichael v Duy Tri Ha
MEDIUM NEUTRAL CITATION:	[2022] VSC 817

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CONSUMER LAW – Contract for repairs to car – Appellant’s claim in VCAT that services provided to his car by the respondent were not rendered with due care and skill and not reasonably fit for purpose – VCAT’s findings of fact – Appellant seeking leave to appeal – VCAT’s findings open – No question of law – Victorian Civil and Administrative Tribunal Act 1998 ss 62(1)(c), 98, 109, 148; Competition and Consumer Act 2010 (Cth) sch 2, ss 60, 61.

ADMINISTRATIVE LAW – Tribunals – Procedure in VCAT – Assistance provided to family member.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	In person

HIS HONOUR:

Background

Mr Kifle Weldemichael, the appellant, seeks leave to appeal from an order made by a Deputy President of the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) on 3 January 2019 (‘VCAT proceeding’).[1] Mr Weldemichael commenced a proceeding against Duy Tri Ha, trading as Collingwood Motor Body Repairs, who is the respondent. The dispute was about work that Mr Ha carried out on Mr Weldemichael’s 1991 Nissan Pintara in November 2017. VCAT ordered that Mr Duy Tri Ha pay Mr Weldemichael $250.
[1]Weldemichael v Duy Tri Ha ABN: 99 726 981 895 t/as Collingwood Motor Body Repairs [3 January 2019] VCAT (‘VCAT Proceeding’).

This proceeding has taken considerable time to be listed for hearing because COVID prevented an in person hearing until this year. Mr Weldemichael required an in person hearing as he was unable to participate in a virtual hearing.

The VCAT proceeding

Mr Weldemichael’s claim as described in his VCAT application was as follows. He took his car to Mr Ha’s workshop and asked him to replace the car’s exhaust pipe because it was too noisy. Mr Ha said that he would replace it and that he required $270 in cash upfront. After work had been done, Mr Weldemichael drove the car home and noticed that the exhaust pipe was still noisy and that it had not been replaced, but had been covered with coating. He took the car back and asked Mr Ha why the exhaust pipe had not been replaced. Mr Ha said he was not to worry and that he would replace it properly this time. However, when Mr Weldemichael returned to collect the car, the exhaust pipe still had not been replaced, but more coating had been added to the old exhaust pipe. He told Mr Ha that he was dissatisfied and Mr Ha said that he would replace the exhaust…

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 Weldemichael v Duy Tri Ha

Details

AGLC: Weldemichael v Duy Tri Ha [2022] VSC 817
Case: [2022] VSC 817
Decision Date: 22 December 2022

CaseChat Overview and Summary

The case of Weldemichael v Duy Tri Ha involved the appellant, a car owner, who brought a claim against the respondent, a repairer, in the Victorian Civil and Administrative Tribunal (VCAT) regarding the quality of services provided to his vehicle. The appellant contended that the repairs were not performed with due care and skill and were not reasonably fit for purpose. VCAT found in favour of the respondent and dismissed the appellant's claim. The appellant then sought leave to appeal VCAT's decision, arguing that the tribunal erred in its findings of fact. The central issue was whether the findings of fact made by VCAT were open to challenge and whether there was any error of law that warranted an appeal. The court considered whether the tribunal's findings were open to question and whether any errors of law were present.

The court examined the nature of VCAT's findings and the extent to which they were open to challenge. It noted that VCAT's findings of fact were not subject to appeal unless there was a clear error of law or a finding that the tribunal failed to consider a relevant matter. The court held that VCAT's findings were open and that there was no question of law involved in the decision. The appellant's argument that VCAT had erred in its findings of fact was rejected as the tribunal's conclusions were well-supported by the evidence presented. The court further noted that the assistance provided by the appellant's family member during the proceedings did not influence the tribunal's decision, as the tribunal had the authority to consider such assistance under the relevant statutes.

In conclusion, the court denied the appellant's application for leave to appeal. It found that VCAT's findings of fact were open and that there was no error of law in the decision. The court's decision was based on the premise that VCAT had adequately considered the evidence and exercised its discretion correctly in dismissing the appellant's claim. The orders of VCAT were thus upheld, and no further appeal was permitted.

Orders