Weldemichael v Ha - [2023] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0020

KIFLE WELDEMICHAEL	Applicant
v
DUY TRI HA (ABN 997 269 818 95) T/AS COLLINGWOOD MOTOR BODY REPAIRS	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 230
JUDGMENT APPEALED FROM:	[2022] VSC 817 (Ginnane J)

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CONSUMER LAW – Application for leave to appeal – Contract for repairs to car – Assessment of damages – Whether VCAT decision involved any question of law – VCAT’s findings of fact – Applicant seeking leave to appeal from VCAT decision – Applicant seeking leave to appeal from judge’s order refusing leave to appeal from VCAT decision – Application not reasonably arguable – Application totally without merit – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14C and 14D, Victorian Civil and Administrative Tribunal Act 1998, s 148.

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Counsel
Applicant:	Unrepresented
Respondent:	No appearance
Solicitors
Applicant:
Respondent:

BEACH JA:

This proceeding concerns the repair of a motor car (a 1991 Nissan Pintara) of limited value.[1] In November 2017, the applicant took his car for repair to the respondent’s workshop. The quoted cost of the work to be performed was $270. The applicant claims he paid this amount for the respondent to replace the car’s exhaust pipe, which had become noisy. The respondent claims that $130 of the sum was to weld and repair a muffler and $140 was for ‘engine services’.
[1]In a document that formed part of the respondent’s response to the applicant’s claims (and which appears to have been pp 89 and 90 of the court book in the court below) the respondent asserted that the applicant had ‘repeatedly and freely admitted that he knows the monetary value of his car is between $200-$500’.
The applicant was dissatisfied with the work performed by the respondent. In August 2018, he commenced a proceeding in the Victorian Civil and Administrative Tribunal (‘VCAT’). In his application form, in answer to the question, ‘How much is your claim?’, the figure ‘$270’ was typed. At some stage, that figure was crossed out and the figure ‘$520’ was handwritten on the form.
The applicant’s claim was heard at VCAT by a deputy president on 3 January 2019. During the course of the hearing, both the applicant and the respondent gave evidence. The respondent was assisted by his son, and gave evidence through an interpreter.
As best as can be discerned from the material, the applicant claimed reimbursement of the $270 he had paid the respondent; $250 to replace a defective used muffler, which the respondent had fitted to the vehicle; and other costs (postage, copying, transport, obtaining a business name extract, and the use of a replacement vehicle for six months) totalling $466.70. The applicant’s case was that he had given the respondent notice of these additional costs on 2 January 2019, the day before the hearing.
At the conclusion of the hearing, the deputy…

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 Ha

Details

AGLC: Weldemichael v Ha [2023] VSCA 230
Case: [2023] VSCA 230
Decision Date: 22 September 2023

CaseChat Overview and Summary

Weldemichael, the applicant, sought leave to appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT) that had denied their claim for damages related to repairs on their vehicle. The matter was heard in the Supreme Court, where the applicant initially sought leave to appeal the VCAT decision. Subsequently, the applicant also sought leave to appeal the judge's order denying the initial application for leave to appeal the VCAT decision. The central legal issues before the court were whether the application for leave to appeal the VCAT decision was reasonably arguable and, if so, whether it involved any question of law.

The court examined whether the VCAT's decision involved any questions of law and concluded that it did not. The VCAT's findings were based on factual determinations, and the court held that these factual findings were not open to challenge on appeal. Additionally, the court found that the applicant's application for leave to appeal the VCAT decision was not reasonably arguable and was totally without merit. The applicant's second application, seeking leave to appeal the judge's order refusing leave to appeal from the VCAT decision, was similarly found to be without merit.

Consequently, the Supreme Court refused both applications for leave to appeal, affirming the VCAT decision and the judge's order. The court's reasoning was grounded in the assessment that the VCAT's findings were based on factual determinations, and there were no legal errors or questions of law involved. The court further determined that both applications for leave to appeal were not reasonably arguable and lacked any prospect of success. As such, the orders of VCAT and the judge's refusal to grant leave to appeal from VCAT's decision were upheld.

Orders