Weldemichael v Duy Tri Ha
[2022] VSC 817
•22 December 2022
| 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 pipe. When Mr Weldemichael next returned to the workshop, he saw that the exhaust pipe still had not been replaced, but had been welded and that the rear muffler had been replaced. He had not asked Mr Ha to replace the muffler and Mr Ha gave no explanation of why he had. He asked for his money back but Mr Ha refused. The replacement muffler was noisy and had a hole in it. He took the car to a muffler specialist who told him that the muffler was faulty because it had a hole and would cost $250 to replace.
Mr Weldemichael contended that Mr Ha’s work was not rendered with due care and skill and was not reasonably fit for purpose as required by the Australian Consumer Law.[2] He asked for a specific service, which Mr Ha promised to supply. He could not drive the car because the exhaust pipe was never properly repaired and was still noisy. He requested Mr Ha to refund the $270 he had paid him and $250 being the cost of replacing the faulty muffler which had been installed without him requesting it. The Deputy President awarded him that sum of $250.
[2]Competition and Consumer Act 2010 (Cth) sch 2 (‘Australian Consumer Law’) ss 60, 61.
The dispute between the parties was summarised by the Deputy President in his reasons as follows:[3]
[3]VCAT Proceeding, [2]-[3].
2. … the Applicant owns a Nissan Pintara which is not particularly valuable but which is dear to the Applicant.
…
The Applicant alleges that he engaged the Respondent, a motor mechanic, to replace a pipe which forms part of the exhaust system on the Nissan. The Applicant complains that the Respondent:
(a)did not replace the pipe but instead attempted to repair it by covering a hole in the pipe and welding it, and
(b)replaced the muffler component of the exhaust system which did not need to be replaced, with a used muffler which was in worse condition than the original and which is defective.
The Applicant claims that he is entitled to a refund of the $270.00 he paid in advance for the replacement of the pipe, and $250.00 as the quoted cost to replace the [defective] used muffler.
The Respondent alleges that he understood that the Applicant had very limited funds, and that the car was of very little value, and he sought to perform work as economically as possible, in the interests of the Applicant. It was appropriate to attempt to repair the pipe rather than replace it. An exhaust system should be capable of being disassembled, so that the pipe could be replaced, but in the Applicant’s Nissan someone had already welded the entire exhaust system together, which made it impossible for the Respondent to do this and which shows the seriousness of the defects in the exhaust system. The muffler needed to be replaced and the Respondent purchased a used muffler for $130.00 to reduce costs to the Applicant. Part of the $270.00 paid by the Applicant was for works performed on the engine, about which there can be no complaint. The Respondent has made an open offer to pay the Applicant $270.00, and the Respondent considers the Applicant’s refusal of that offer and his demand for a total of $520.00 as being unreasonable, both because he is not liable to compensate the Applicant at all in respect of the muffler and because the $250.00 quoted for its replacement is excessive.
The Deputy President found that:[4]
4.On the basis of the evidence, the Tribunal is satisfied that the Respondent sought to help the Applicant by keeping costs down, and so acted in good faith, but that objectively the Respondent did not perform his obligations under his contract with the Applicant.
5.The attempted repair to the pipe was unsatisfactory, but was appropriate given that the pipe could not be replaced because the exhaust system has been welded together. As the Respondent’s charge of $270.00 included work on the motor as well as work on the pipe, this part of the Applicant’s claim must be dismissed.
6.The photographic evidence produced by the Applicant shows that the muffler did not require replacement. Because the Respondent brought the replacement muffler from a wrecker, I conclude that the replacement muffler is defective. Therefore the Respondent must compensate the Applicant for the cost of reinstating the muffler, which in practical terms can only be achieved by purchasing a replacement for $250.00 as quoted.
7.It follows that the Applicant is entitled to $250.00 from the Respondent.
[4]VCAT Proceeding, [4]-[7].
Amended Notice of Appeal
By amended Notice of Appeal, Mr Weldemichael sought to appeal the decision of the Deputy President pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). His application for leave to appeal and his arguments on appeal, if leave were granted, were heard together.
Mr Weldemichael’s handwritten amended Notice of Appeal did not contain questions of law or grounds of appeal. However, during the hearing he clarified his grounds of appeal. In essence, they were:
(a) did the Deputy President err in allowing Mr Ha’s son to interpret for Mr Ha at the VCAT Proceeding?
(b) was there insufficient evidence before the Deputy President to conclude that the repair, carried out by Mr Ha to the exhaust pipe, was appropriate?
(c) was there insufficient evidence before the Deputy President to conclude that Mr Ha had carried out work on the car’s engine; and
(d) did the Deputy President err by not ordering costs against Mr Ha?
Section 148 of the VCAT Act
Appeals from VCAT’s orders can only be made on questions of law and only with the leave of this Court. That is the effect of s 148 of the VCAT Act which states:
148 Appeals from the Tribunal
(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding—
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
…
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
The effect of s 148 is that the Court can only consider an appeal from VCAT on a question of law, as opposed to questions of fact or merit. In addition, s 148(2A) states that the Court can only grant leave to appeal if I am satisfied that the appeal has a real prospect of success.
The parties must understand one central and important matter about this proceeding. That is that the findings that a Deputy President, or other VCAT member, makes about the facts of a dispute, for instance in this case about what repairs were made to the car’s engine, can only be successfully challenged if there was no evidence or information upon which the Tribunal might rationally have made those findings.[5] The Supreme Court does not make its own findings about the facts that were presented to VCAT, but examines the facts that VCAT found and considers whether was some evidence to support those findings. I could only consider granting Mr Weldemichael leave to appeal and allowing his appeal if I was satisfied that there was no evidence to support the Deputy President’s findings and order. The Deputy President appears to have taken into account all the statements, documents and submissions that the parties relied on, or made to him, whether they were strictly formal evidence or not. That was appropriate in a case like this.[6]
[5]Kyriackou v Law Institute of Victoria [2014] VSCA 322, [14] and Maund v Racing Victoria Ltd [2016] VSCA 132, [67]-[69].
[6]VCAT Act s 98.
The parties’ submissions
Mr Weldemichael’s submissions
Mr Weldemichael submitted that the Deputy President made an error in allowing Mr Ha’s son to act as an interpreter for him at the VCAT hearing. He contended that the son exceeded the role of an interpreter and made submissions to the Deputy President. Mr Weldemichael tried to object to the son’s actions, but the Deputy President did not allow him to do so.[7]
[7]See Transcript of Proceeding, (Supreme Court of Victoria, S ECI 2019 00402, Ginnane J, 23 May 2022) 58 (‘T’).
Mr Weldemichael, who has qualified as a motor mechanic, challenged the Deputy President’s finding that his car’s exhaust system had been welded together before he took it to Mr Ha’s workshop. On the basis of this finding, the Deputy President then found that Mr Ha had acted appropriately in repairing the exhaust pipe. Mr Weldemichael disputed these findings. He presented photos which he said showed that the exhaust system was not welded together when he took it to the workshop.
Mr Weldemichael also disputed the Deputy President’s finding that Mr Ha carried out works on his car’s engine. His case was that he paid $270.00 to Mr Ha for repairs to the exhaust pipe and not for anything else.[8] That was the scope of his agreement with Mr Ha. In any event, Mr Ha did not do any work on the engine and Mr Weldemichael replaced the spark plugs himself.[9]
[8]T 21.
[9]T 23.
Mr Weldemichael submitted that he had suffered consequential loss or costs as a result of Mr Ha’s defective repair works to the exhaust pipe. In his amended Notice of Appeal, he claimed amounts including: $270.00 to replace the exhaust pipe as Mr Ha performed work that was beyond the scope of their original agreement; $10.95 for postage expenses during the VCAT proceeding; $18.00 for public transport expenses that he incurred attending VCAT and Mr Ha’s place of business; $10.00 to make copies of documents for VCAT proceeding; $17.00 for an ASIC current and historical business name extract; $157.08 for the transcript of the VCAT proceeding; $65.55 for the CD, postage of $5.20; and $402.85, $410.75 and $410.75 paid to VicRoads being the registration charges for three years in which he registered a second car. That was necessary because he could not drive his Nissan Pintara, as it was too noisy and he had preserved it as evidence for his VCAT proceedings.[10]
[10]T 15–16.
Mr Ha’s submissions
Mr Ha’s account of events was that Mr Weldemichael brought his Nissan to his workshop and told him that the rear muffler had holes in it and was noisy. The exhaust system of three parts was welded together when the car arrived. Mr Weldemichael’s photos presented to the Tribunal did not show that the exhaust system was not welded together.[11]
[11]T 34–5.
Mr Ha said that he would repair the muffler by welding the holes in it, as that would be the most economical solution given the age of the car. Mr Weldemichael agreed with that and also for Mr Ha to service the engine, replace the spark plugs and adjust the petrol supply to the engine. Mr Weldemichael told him not to turn off the engine as the car took four hours to start. No agreement was made to replace the muffler. Mr Weldemichael offered upfront money and the agreed price was $130 for welding the rear muffler and $140 for engine services. Upon completion of this work, Mr Ha gave Mr Weldemichael an itemised receipt for the repair works totaling $270.00 being ‘rear muffler’ and ‘engine assessment for petrol’.[12]
[12]Court Book, Weldemichael, Kifle v Duy Tri Ha (ABN 997 269 818 95) t/a Collingwood Body Repair (Supreme Court of Victoria. S ECI 2019 00402, Ginnane J, 14 August 2019) (‘CB’) 86: Tax Invoice/Statement dated 14 November 2017.
Mr Weldemichael returned again to the workshop because there was still a small hole where the crack used to be. Mr Ha agreed to weld the hole again free of charge. He did so but Mr Ha said that Mr Weldemichael did not like its appearance. Mr Ha offered to return the $130 for the welding repairs, but they agreed that he would purchase a second-hand muffler for the car. He did that for no extra cost, but even then Mr Weldemichael was still not happy and demanded his $270 back. Mr Ha refused, as he had incurred additional costs in purchasing the muffler and for his labour, but for neither of which he charged Mr Weldemichael.
Mr Ha described Mr Weldemichael’s claims for consequential losses and costs as unfair as he had performed repair works well beyond what he had agreed to do in order to satisfy him. If he was dissatisfied with Mr Ha’s repairs, he could have taken his Nissan Pintara elsewhere for more repairs.[13]
[13]T 37.
Consideration of Mr Weldemichael’s and Mr Ha’s submissions
The assistance Mr Ha’s son provided during the hearing
Mr Weldemichael objected to the fact that Mr Ha received assistance from his son during the VCAT hearing. His son addressed the Tribunal on occasions and made submissions on his behalf, although it appears that an interpreter was present and that Mr Ha had some command of English.
VCAT had power to allow Mr Ha’s son to assist him in the way that he did. This is consistent with the Court of Appeal’s decision in Hua Li v John Hong Ping So[14] which discussed the discretion to permit a non-legally trained person to represent a litigant as a McKenzie friend in special circumstances. That power is appropriately used to assist a person present their case when they may otherwise be unable to do so. The assistance may extend to making oral submissions on a person’s behalf.
[14][2021] VSCA 32, [20].
In addition, VCAT has a discretion to allow people other than a party to address them or make submissions on behalf of the party.[15]
[15]VCAT Act s 62(1)(c).
The Deputy President’s findings as to the terms of the contract
The Deputy President clearly accepted Mr Ha’s account of his agreement with Mr Weldemichael, that being to weld and repair the crack in the exhaust pipe and service the engine. That explains why he did not require Mr Ha to repay the sum of $270. He found that the muffler did not require replacement and that the replacement muffler was defective and awarded Mr Weldemichael $250, being the cost of another replacement muffler.
The Tribunal’s finding that the exhaust system had been welded together
The Deputy President found that when Mr Weldemichael took the car to the workshop, the exhaust system had already been welded together. He stated:[16]
The attempted repair to the pipe was unsatisfactory, but was appropriate given that the pipe could not be replaced because the exhaust system had been welded together. As the Respondent’s charge of $270.00 included work on the motor as well as work on the pipe, this part of the Applicant’s claim must be dismissed.
[16]VCAT Proceeding, [5].
Mr Weldemichael disputed that the exhaust system had been welded together. Mr Ha’s evidence was that the exhaust system had been welded together when the car arrived at his workshop.
As previously mentioned, Mr Weldemichael’s right to seek leave to appeal on questions of law does not extend to disputing the Tribunal’s findings of fact unless he could establish that there was no evidence to rationally support those findings. This is not such a case. Mr Weldemichael’s and Mr Ha’s evidence conflicted on this issue of whether the exhaust had already been welded together and the photos produced to the Tribunal were inconclusive. The Deputy President accepted Mr Ha’s evidence on this issue as he was entitled to do and that conclusion did not involve an error of law. While Mr Weldemichael considers Mr Ha’s evidence to be untrue, the VCAT Act gave the Deputy President the task of deciding which evidence to accept and he accepted Mr Ha’s.
The issue of whether Mr Ha carried out work on the vehicle’s engine
Another dispute was whether Mr Ha carried out work on the engine which he said included replacing the spark plugs and working on the petrol filter to improve the petrol flow.
Again, this was a question of fact which the Tribunal decided. The Deputy President had to choose between Mr Weldemichael’s evidence and Mr Ha’s. He preferred Mr Ha’s evidence and he did not make an error of law in doing so. I am not persuaded that Mr Weldemichael has established that there was no evidence to support the Deputy President’s conclusions.
The Deputy President’s decision on costs
The remaining matter concerns costs. Mr Weldemichael said that VCAT should have awarded him the costs of registration of another car he drove for years up to 2021 because Mr Ha had not properly repaired his Nissan. The Tribunal dealt with the costs claims in the following passage:[17]
The applicant sought to bring some additional claims for a consequential costs and expenses during the hearing, but he had not given notice of these proposed amendments to the Respondent and it would be unfair to award them to the Applicant. Further, some of the claims were not sustainable at law.
[17]VCAT Proceeding, [8].
In his printed application filed with the Tribunal, Mr Weldemichael claimed the two sums of $270.00 and $250.00. He did not claim consequential costs. The Tribunal awarded him the sum of $250.00. He said that he served copies of his registration costs and the costs of his transport and for a copy of a business name certificate on Mr Ha the day before the hearing.
VCAT has a broad discretion on the question of costs.[18] Mr Weldemichael had the option of having the exhaust pipe repaired by someone else. He did not do so because he said he wanted to maintain it in its unrepaired state as evidence. However, he could have videoed the pipe or taken more photos of it, or obtained an inspection of it by another mechanic. Most of the items he claimed as costs were expenses and the Deputy President had a discretion whether to award them. It has to be kept in mind that Mr Weldemichael only succeeded on his claim for $250, but not in respect of his claim for $270. The Tribunal’s ‘prima facie’ rule is that each party is to bear their own costs of the proceeding.[19] The Deputy President apparently applied that rule and took into account the late notice that Mr Weldemichael gave of his consequential losses or costs. The Deputy President did not err in refusing to award Mr Weldemichael consequential costs or losses and expenses.
[18]VCAT Act s 109.
[19]Ibid.
Conclusion
This case concerns a small claim, although I understand its importance to the parties, not least Mr Weldemichael. But it is a case largely turning on questions of fact that were for VCAT to decide. I do not consider that Mr Weldemichael has shown that the Deputy President made an error in his finding of fact about the agreement with Mr Ha and the work done on the car or in any other matter on which he seeks to appeal.
Accordingly, I refuse leave to appeal and dismiss the proceeding.
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