Gisborne District Council v Green DC Gisborne CRI 2012-016-500 [2012] NZDC 2030 (5 December 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT WELLINGTON

_{CIV-2012-085-642}

BETWEEN BIRHAN HAGAS OF AUCKLAND Appellant

AND FANUS GEBREKIDAN OF WELLINGTON

Respondent

Hearing: 2 November 2012

Appearances: No appearance of or on behalf of the appellant

Ms Gebrekidan in person together with an assistant Ms Kiddle

Judgment: 5 November 2012

RESERVED JUDGMENT OF JUDGE S M HARROP [As to appeal against Disputes Tribunal Order]

[1] When this appeal was called before me shortly after 11.45am on Friday

2 November 2012, there was no appearance of or on behalf of the appellant Mr Hagas. He had been notified of the date, time and place of the hearing by letter dated 18 October 2012. Ms Gebrekidan, the respondent, had also received such notice and she was present together with a person assisting her, Ms Susan Kiddle. No application had been made by Mr Hagas for an adjournment of the appeal nor was there a request that he be involved in the appeal hearing by telephone as sometimes occurs and as was the case in respect of his involvement at the Disputes Tribunal hearing on 23 July 2012.

[2] Although I could have simply dismissed the appeal for want of prosecution, I consider it appropriate to deal with the appeal on its merits given that I have read the file including Mr Hagas’ notice of appeal.

[3] The dispute arose from the purchase of a vehicle from Mr Hagas by

_{Ms Gebrekidan. The Tribunal noted that although there was a belief on all sides that}

HAGAS V GEBREKIDAN DC WN CIV-2012-085-642 [5 November 2012]

it was in good condition at the time of sale, it was found by the Tribunal that the cost of repairing rust ,which must have been present at the time of the sale, was properly payable by Mr Hagas to Ms Gebrekidan. The sum involved was $900 plus GST, i.e.

$1,035. The Tribunal found that ,on application of the Contractual Remedies Act

1979 and Contractual Mistakes Act 1977 to the situation, it was appropriate to order that the relevant portion of the claim be upheld. The total claim was for $1,894.05 but the Referee found that some of the defects may have arisen after the sale.

[4] Mr Hagas has provided a number of reasons why in his view the Referee’s decision was wrong. It is not necessary for me to traverse these because they are all challenges to the merits of the decision rather than relating to the manner in which the hearing was conducted. There is a very limited basis on which a Disputes Tribunal Order may be successfully appealed. Under s 50(1) of the Disputes Tribunal Act 1988 the only ground of appeal is that the proceedings were conducted by the Referee in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. A Court does not have jurisdiction on appeal to revisit the merits of the Referee’s decision as Mr Hagas asks the Court to do.

[5] Because there is no allegation or other indication that the way in which the Referee carried out the proceedings was unfair to Mr Hagas let alone that any such unfair procedure prejudicially affected the result, the appeal must be and is dismissed.

S M Harrop

_{District Court Judge}

Signed at am on 5 November 2012