Gashparac v Broadview Windows Pty Ltd - [2015] ACAT 29

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GASHPARAC v BROADVIEW WINDOWS PTY LTD
(Civil Dispute) [2015] ACAT 29
XD 11/1202
Catchwords: CIVIL DISPUTE – Trade Practices Act 1974 – Sale of Goods Act 1954 – supply of goods to consumer – supplied goods breached implied guarantees – merchantable quality – whether goods corresponded with their description

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 18

Sale of Goods Act 1954 ss 6, 8, 10, 18, 19, 38, 39, 55, 56
Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth) sch 7 cl 6
Trade Practices Act 1974 (Cth) ss 4, 58, 66, 68, 70, 71, 75, 82, 87

Tribunal:     Mr A. Anforth – Senior Member
Date of Orders:  2 April 2015
Date of Reasons for Decision:       2 April 2015
ACTCIVIL & ADMINISTRATIVE TRIBUNAL      )       XD 11/1202

BETWEEN:
ZELKO GASHPARAC

Applicant
AND:
BROADVIEW WINDOWS PTY LTD ATF THE ARAS FAMILY TRUST T/AS BROADVIEW WINDOWS & DOORS
Respondent

TRIBUNAL: Mr A. Anforth – Senior Member

DATE:2 April 2015
ORDER

The Tribunal Orders That:

The Respondent is to pay the Applicant the sum of $4123.00 by 30 April 2015, being a refund of the cost of the second bathroom window and the filing costs in the Tribunal.
The Respondent is to supply new horns that match the description in the Schedule for all windows that it supplied to the Applicant which required horns of that design.
The Applicant is to supply the Respondent with a document setting out the particulars for each window to be re-fitted by 30 April 2015. The Respondent must supply the new window horns to the Applicant by 30 June 2015.

………………………………..
Mr A. Anforth
Senior Member

REASONS FOR DECISION

Summary

The present matter is a claim arising from a contract for the Respondent (a corporation) to supply goods within the ACT to the Applicant in the form of windows and doors valued at $22,000.00, manufactured to the Applicant’s specifications.
The Applicant owns a heritage listed residential property in Ainslie, ACT which he had extended in 2012.
The Respondent is a company based in NSW which supplies windows and other household fittings. The Respondent did not the manufacture the goods supplied to the Applicant, nor did it install them in his property.
In May 2010 the Applicant obtained a quote from the Respondent for the supply of windows manufactured to his specifications, each with window horns designed to match the existing window horns.
Subsequent to the quote, the Applicant changed the design and measurements of the bathroom windows. The updated details were depicted on the drawing of that window but not in the specifications listed beside it, which included the total dimensions of the window. The partial changes were incorporated into the Order Schedule signed by the Applicant, and sent by the Respondent to the manufacturer in June 2010.
The bathroom windows were manufactured and delivered according to the updated design but the measurements were those of the original, unchanged specifications rather than those accompanying the drawing. This meant that the windows were too small.
The Applicant paid for new windows of the correct size to be manufactured for the bathroom while maintaining that the Respondent was at fault and seeking to resolve the issue.
The Applicant provided the Respondent with the design for the window horns. After some inquiries with manufacturers the parties agreed to a design that was as close of the existing horns as could be found. The Applicant contended that the horns of the window supplied were not of the agreed design.
The Applicant contended that the bi-fold door supplied by the Respondent was incorrectly manufactured and did not reflect what was required in the agreed Schedule.
The Applicant asserts that he was to be supplied with aluminium fly-screens rather than nylon, which were the type delivered.
The Respondent denies responsibility and claims to have made no error. The Respondent contends that the fault was the Applicant’s, for supplying erroneous measurements, and that the horns and screen door are the correct size and design.
The Applicant seeks the sum of $10,000.00 from the Respondent, consisting of $6000.00 in damages and $4000.00 as a refund for the replacement bathroom window, and also for the Respondent to fix and make good the faulty workmanship and manufacturing errors on the horns and door.
The person with whom the Tribunal had communications for the Respondent was Ms Mary Costa aka Mary Aravanopoulos.

Background

On 20 May 2010, pursuant to earlier discussions with the Respondent, the Applicant obtained a quote from the Respondent for having a number of windows and doors manufactured for his house.
On 14 June 2010, the Applicant discussed with the Respondent a new bathroom window size and the specifications for the horns, which needed to match the existing horns due to the heritage-listed status of the property.
On 15 June 2010, the Applicant emailed the Respondent a drawing of the horn type required, the details of the new bathroom window size, and a floor plan.
The bathroom windows were originally specified as being ‘1200 h x 1570 w’. Horns were on the top sash only. The Applicant changed the design so that the windows were whole panes only. The dimensions also changed: each window was 785 mm wide (the windows were in a corner arrangement so the total width remained 1570 mm) and 2100 mm high (made up of two panes, each 1055 mm high). However, while specifying the dimensions on the drawing of the windows, the Applicant neglected to update the total measurements, which still read ‘1200 h x 1570 w’.
On 16 June 2010, the Respondent emailed to the Applicant a document containing the Window Schedule and Payment details, and requested that he sign every page of this and return the signed copy to the Respondent.
The Schedule is a document detailing what was to be manufactured, including a depiction of each window or door with exact measurements, and beside this details of the product such as total dimensions, glass or wood type, and where it is to be fitted (i.e. what room). It showed the new design for the bathroom window but the line detailing the total dimensions was unchanged.
The payment required was a total of $22,000.00, which included a deposit of $15,000.00.
On 18 June 2010, the Applicant returned the signed Schedule to the Respondent by email. In the email the Applicant reminded the Respondent that the measurements for the bathroom window had changed, as well as his need for aluminium mesh fly-screens, and promised to transfer the funds that day.
The Applicant paid the deposit of $15,000.00 by direct bank transfer.
The completed Schedule and order confirmation contained a clause stating:
4.Any changes to the order once the confirmation is signed and deposit paid will be charged as a new item. No credit will be given for item changed unless approved by Broadview.
The Respondent’s terms and conditions of sale, attached to the order confirmation, contained clauses stating that:
3. BROADVIEW’S RIGHTS
…
(f) You agree that the goods and/or services supplied to you are of merchantable quality and fit for their purpose if you do not complain to Broadview by notice in writing within 14 days of using the goods or services.
…
4. CLAIMS
(a) If you want to make any claim for damages for any breach of contract you must:
(i) Make the claim in writing and notify Broadview within seven (7) days of the date of supply of the goods and/or services; and
(ii) Make the claim before you have incorporated and [sic] goods delivered into any other goods or products.
…
On or about 25 July 2010, the Respondent delivered the windows and doors to the Applicant. The Applicant noticed that the bathroom window was the incorrect size and requested the Respondent’s contractors not to fit it but to return it to the Respondent. The Applicant then contacted the Respondent and informed them of the incorrectly sized window. The Applicant claims that the Respondent agreed to replace the incorrectly sized window.
The Applicant inspected the horns on the windows and discovered that they were a different size from what had been specified in the Schedule. When contacted about this, Mary Costa for the Respondent said that ‘she’ll speak to the manufacturer of the windows to obtain the best result’.
On 30 July 2010, the Respondent emailed the Applicant stating that “the problem is a typo… I’ll get back to you as soon as I can… Still waiting for my payment please fix this up.”
On 23 August 2010, the Applicant emailed the Respondent stating that “I called [a] number of times last week but you have not returned any of my calls. I need those windows as soon as possible as you’re holding up the construction of my house.” The Respondent replied “Still no money its [sic] been 9 days please pay”.
The Applicant replied on 25 August 2010 in an email setting out his version of communications to date and his belief that the Respondent did not pass on the amended specifications to the manufacturer.
The Respondent denied responsibility to fix the problems in all contact with the Applicant after this. The Applicant’s calls were not returned and his emails received antagonistic responses expressed in capital letters or bold font blaming the sizing issue on the Applicant for not amending the total height of the windows.
On 10 September 2010, the Applicant emailed the Respondent details of the new windows (including the replacement bathroom windows) that he required. The email stated that the deposit had been made by EBT (electronic bank transfer). In his application the Applicant states that he paid $4000 for the replacement window out of desperation, in order to prevent further weather damage to his house.
On 22 October 2010, the replacement bathroom windows were delivered in addition to 2 extra windows for the dining room (to replace existing windows). The additional windows had horns which did not match those on windows delivered previously (on 25 July 2010) in design and placement: the new windows had horns on the inside, and the horns did not match those in the first delivery.
The Applicant was subsequently informed by his carpenter that the bi-fold doors were a poor fit – there was a ‘clear gap’ between the door and the door frame, which caused draughts.
The Applicant contacted the Respondent about inspecting and fixing the windows and doors multiple times between October 2010 and February 2011 to no avail.
On 18 February 2011, the Respondent replied to one of the Applicant’s emails (dated 20 January 2011) refusing to refund the Applicant for the undersized bathroom windows or for the bullhorns as ‘I did not make an error’.
Further attempts by the Applicant to contact the Respondent and to organise mediation failed.
On 19 August 2011, the Applicant filed an application to the Tribunal seeking $10,593.00 consisting of $4000.00 as a refund for the new replacement windows, $6470.00 in damages and $123.00 in Tribunal fees. The Tribunal notified the Applicant on 2 September 2012 that it was unable to process his application until he amended it so that the total sum claimed was $10,000.00, excluding the processing fee.
On 21 September 2011, the Applicant amended his application to the Tribunal so that he sought damages of $6000,00, a refund of $4000.00 for the replacement window and of $123.00 for the Tribunal’s processing fees, and for the Respondent to redress problems with the goods and service supplied including:
a)Re-manufacture the windows with correct horns per the specification;
b)Remove internal horns from dining room windows and the bathroom window, or add horns to the other windows;
c)Manufacture new bi-fold doors to remove the excessive gap;
d)Aluminium mesh on all fly-screens; and
e)Fly-screens for two dining room windows and the bathroom window.
The damages sought were in lieu of costs by the Applicant due to the delays and problems with the goods supplied by the Respondent. These costs are:
a)Accommodation: $3000.00;
b)Hire equipment: $1520.00;
c)Delay in construction: $1950.00.
On 21 June 2012, the Applicant sought to have default judgment entered against the Respondent. On 29 June 2012, the Tribunal informed the Applicant that it was unable to process his application for interest on the sum awarded to him by default judgment. On 5 July 2012, default judgment was entered for the Applicant to recover the amount sought.
On 2 August 2012, the Respondent applied to have the default judgment set aside as it had been made in its absence due to the notification of hearing having been delivered to an accountant rather than to the Respondent’s address, and that it believed it had a good case to defend itself. On 22 August 2012, the Tribunal set aside the default judgment of 5 July 2012. The Respondent was given 21 days to file a response.
On 21 September 2012, the Tribunal made an order allowing the Respondent more time to file its submissions due to illness of Ms Costa.
On 24 October 2012, the Applicant applied for default judgment; this was refused on 26 October 2012 as the Respondent had been given to 9 November 2012 to file its response.
On 4 December 2012 the Tribunal held a conference and made an order giving the Respondent leave to join Airlite Pty Ltd (the manufacturer) as a third party. The Applicant appeared in person; the Respondent appeared by telephone.
On 14 December 2012, the Respondent was notified of the Tribunal’s decision, and contacted Airlite on 18 December 2012. Airlite did not respond.
On 25 March 2013 the Respondent emailed the Tribunal to ask for an adjournment as Airlite had not responded and she was unsure of what steps to do to effect the joinder. Ultimately the Respondent did not follow through on the leave granted to join Airlite.
Neither party attended the hearing scheduled for 2 April 2013; the matter was adjourned.
On 18 April 2013, the Tribunal heard the matter and adjourned the matter part-heard. The Applicant attended in person; the Respondent did not appear.
On 1 July 2013, the Tribunal heard the matter and reserved its decision. The Applicant attended the hearing in person; the Respondent did not appear.
On 4 August 2014 and 17 February 2015, the Applicant contacted the Tribunal seeking resolution of the matter.

Jurisdiction

The Tribunal is a statutory body established by the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and has only such jurisdiction and powers as are conferred on it by the Legislature.
The Tribunal has jurisdiction over this matter by virtue of it being a civil application in relation to a contract (ACAT Act section 16(a)).
The limit of the Tribunal’s monetary jurisdiction for actions under section 16 is the $10,000.00 limit set out in section 18. Although the Applicant’s application originally exceeded this amount, the Applicant amended his claim to seek the sum of $10,000.00, thus bringing the matter within the Tribunal’s jurisdiction.

Legislation

The Australian Consumer Law (ACL) has provided statutory protections for consumers since it commenced on 1 January 2011.
Goods and services bought before 1 January 2011 are covered by the implied warranties and conditions in the fair trading laws which preceded the ACL (see Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 (Cth) Schedule 7 clause 6).
As the Applicant’s cause of action accrued in July 2010 the applicable legislation is therefore the Fair Trading Act 1992 (ACT), the Sale of Goods Act 1954 (ACT) and the Trade Practices Act 1974 (Cth). In the case of the Fair Trading Act 1992 and the Trade Practice Act 1974 the consumer protection provisions were repealed and moved to the ACL on 1 January 2011. It is the consumer protection provisions as they stood prior to that amendment that apply in this case.

The Sale of Goods Act 1954 (ACT)

The Sale of Goods Act 1954 (ACT) (‘SGA’) applies to contracts for the sale of goods, defined by section 6 as ‘a contract by which the seller transfers or agrees to transfer property in goods to the buyer for a money consideration, called the price’.
SGA section 8 provides that contracts may be made in writing, by word of mouth or partly of each. The present contract was in writing, evidenced by the Schedule.
SGA section 10 provides that the goods that form the subject of the contract may be either existing goods or ‘future goods’, which are goods that are manufactured or acquired by the seller after making the contract of sale – such as the windows ordered by the Applicant from the Respondent.
Under SGA section 18, if is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
SGA section 19 implies conditions as to quality and fitness into contracts for the sale of goods:
(1)Subject to subsection (2), if the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller's skill or judgment, and the goods are of a description that it is in the course of the seller's business to supply (whether the seller is a manufacturer or not), there is an implied condition that the goods shall be reasonably fit for that purpose.
(2)For a contract for the sale of a specified article under a trade name, there is no implied condition as to its fitness for a particular purpose.
(3)If goods are bought by description from a seller who deals in goods of that description (whether the seller is a manufacturer or not), there is an implied condition that the goods shall be of merchantable quality but if the buyer has examined the goods there is no implied condition as to defects that the examination ought to have revealed.
(4)An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.
(5)An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent with it.
The Respondent is in the business of selling the products which were the subject of the contract, namely windows, doors and other household fittings.
Section 38 provides that if the buyer has not inspected the goods prior to delivery, the buyer is not deemed to have accepted the goods until the buyer has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
Subject to section 38, section 39 of the SGA provides that the buyer is deemed to have accepted the goods when:
(a)the buyer intimates to the seller that the buyer has accepted them; or
(b)the goods have been delivered to the buyer and the buyer does an act in relation to them that is inconsistent with the ownership of the seller; or
(c)after the lapse of a reasonable time, the buyer retains the goods without intimating to the seller that the buyer has rejected them.
The SGA establishes several remedies for buyers if the seller has not acted in accordance with the contract. Key among these is the right to enforce their contractual rights through judicial action, which the Applicant has done.
On the application of the buyer (the plaintiff), section 55(1) empowers a court to order specific performance of the contract, including delivery of ascertained goods. The judgment may be unconditional or on the terms and conditions of the contract as to damages, payment of the price or otherwise as the court sees fit (section 55(2)).
For cases involving a breach of warranty, section 56 also empowers the court to order damages be paid to the buyer for losses directly and naturally resulting in the ordinary course of events from the breach of warranty (section 56(1)(b) and (2)).

The Trades Practices Act 1974 (Cth)

Part V of the Trades Practices Act 1974 (Cth) (‘TPA’) prior to its repeal contained consumer protection provisions.
For the purposes of the TPA, a person is taken to have acquired goods as a consumer if the price of the goods did not exceed $40,000.00 (section 4B). This is the case here.

TPA section 58 states that a corporation shall not, in trade or commerce, accept payment for goods where at the time of the acceptance it intends (a) not to supply the goods, or (b) to supply goods materially different from the goods in respect of which the payment was accepted.
Section 70(1) of the TPA provides that where there is a contract for the supply of goods by description between a corporation in the course of business and a consumer, there is a guarantee implied into that contract that the goods will correspond to that description.
TPA section 71 implies undertakings as to quality and fitness into contracts between corporations and consumers:
(1)Where a corporation supplies (otherwise than by way of sale by auction or sale by competitive tender) goods to a consumer in the course of a business, there is an implied condition that the goods supplied under the contract for the supply of the goods are of merchantable quality, except that there is no such condition by virtue only of this section-
a) as regards defects specifically drawn to the consumer's attention before the contract is made; or
b) if the consumer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
(2)Where a corporation supplies (otherwise than by way of sale by auction or sale by competitive tender) goods to a consumer in the course of a business and the consumer, expressly or by implication, makes known to the corporation or to the person by whom any antecedent negotiations are conducted any particular purpose for which the goods are being acquired, there is an implied condition that the goods supplied under the contract for the supply of the goods are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the consumer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the corporation or of that person.
(3)Subsections (1) and (2) apply to a contract for the supply of goods made by a person who in the course of a business is acting as agent for a corporation as they apply to a contract for the supply of goods made by a corporation in the course of a business, except where that corporation is not supplying in the course of a business and either the consumer knows that fact or reasonable steps are taken to bring it to the notice of the consumer before the contract is made.
Section 66(2) provides that goods are of ‘merchantable quality’ if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all the other relevant circumstances.
The application of these provisions cannot be excluded or modified by contract (section 68).
Section 75 preserves the operation of other laws and remedies – the TPA does not exclude or limit the concurrent operation of any State or Territory law.
Section 82(1) provides that a person who suffers loss or damage by conduct of another person (a concept including corporate entities) that was done in contravention of the provisions listed above may recover that amount in damages by judicial action against that person.
Section 82(1B) qualifies the right to damages where the loss was partly the result of the plaintiff’s failure to take reasonable care, and the defendant did not intend to or fraudulently cause the loss. In such cases the quantum of damages is to be reduced to the extent the court sees fit having regard to the claimant’s share in responsibility for the loss.
Under section 87, a court may make any order it deems appropriate.
The Sale of Goods Act and the Trade Practices Act (prior to amendment) sufficiently cover the subject matter of this claim without the need to resort to the Fair Trading Act (prior to amendment).

Consideration of Issues

This matter involves a contract between the Applicant and the Respondent for the supply of windows and other fittings by the Respondent made to measure to the Applicant’s specifications by a third party manufacturer. Those specifications were set out in the Order Schedule, which form part of the contract between the parties. The value of the goods was $22,000.00.
The third party manufacturer has not been joined to these proceedings. The question of whether the Respondent breached the contract or the relevant legislation will be determined on the basis of its role as supplier of goods to the Applicant, not as manufacturer of the products.
The facts indicate that the Respondent may have breached the law in relation to the supply of:
a)the bathroom windows (under-sized);
b)the window horns (incorrectly placed and wrong design);
c)the bi-fold doors (under-sized); and
d)the non-supply of aluminium fly-screens.
The Tribunal will address each issue in turn before turning to the quantum of damages.

Bathroom Windows

The SGA implies a guarantee into every contract for supply of goods that the goods will correspond with their description and be fit for their declared purpose (sections 18 and 19). The TPA has equivalent provisions (sections 70 and 71).
It appears that the Applicant created a Schedule of Works from which the Respondent generated a quote, and then instructed the Applicant to update the Schedule to reflect any changes. The updated Schedule contained drawings which had been updated to reflect the new size and design of the bathroom windows, but the section of the Schedule specifying the total measurements had not been amended so it still contained the original measurements.
The windows were manufactured according to the original measurements, incorporating the new design and thus were too small. The windows were unfit for their known purpose, of which the Respondent was aware, as well as not corresponding to their description.
Given the inconsistencies in the Schedule, it was in fact impossible for the windows to correspond to their description as the finished product would be inconsistent with either the measurements or the drawing depending on which the manufacturer was guided by.
While the Applicant contributed to the situation by incorrectly amending the Schedule, this does not detract from the Respondent’s liability.
The Respondent did not act with due care and diligence in this transaction. The Respondent was on notice that changes had been made, and had been reminded of the changes multiple times by the Applicant and so was aware how important it was to the Applicant that the manufacturer receive the new measurements. Notwithstanding this, the Respondent failed to ensure that the Schedule had been completely amended and properly filled out before passing it on to the manufacturer. As a result of the Respondent’s negligence the bathroom windows were not fit for their purpose and did not correspond to their description.
The Tribunal finds as a fact that the Respondent has breached sections 18 and 19 of the SGA, and sections 70 and 71 of the TPA.
The Tribunal notes that the Applicant’s conduct in rejecting delivery of the windows, notifying the Respondent that the windows were the wrong size and negotiating for replacement windows is consistent with rejecting the goods, as is his right pursuant to an inspection of goods upon delivery which have not been previously examined (SGA sections 38 and 39).

Window Horns

Window horns are extensions on window frames that provide stops for the vertical or horizontal motions of the windows.
The Applicant claims that the Respondent supplied windows with horns that were not what were agreed and which were not fit for their purpose. This is a significant issue to the Applicant as his house is heritage-listed and it was important to the Applicant that the extension and new fittings be consistent with the original house.
The material before the Tribunal indicates that the Applicant provided a drawing of the existing horns to the Respondent to facilitate finding a matching product. The Respondent claimed to have contacted the manufacturer, which could not match the horns exactly but provided details of the product that was closest to the Applicant’s needs. This information was relayed to the Applicant, who agreed to order horns of that type. The relevant diagrams were included in the Schedule. The Applicant claims that the horns eventually supplied did not match either the existing horns or the design of the horns he agreed to purchase.
The Respondent refutes this claim. The Respondent claims that the horns supplied are those which were offered by the manufacturer as being nearest in size and design to the Applicant’s existing horns, and which the Applicant found suitable.
The Applicant has supplied photographs to the Tribunal illustrating the difference between the horns on the existing windows and those supplied by the Respondent.
Although the photographs are dark there is a clear difference between the two windows: the second window has a horn mounted on the inside of the window-frame; the first does not.
The shape of the horn in the second photograph is also markedly different from the shape of the horns depicted in the Order Schedules – the design of the horn was the same in both the July and October Schedules. The horn depicted in the Schedule curved from the inner to the outer edge in a line akin to an ‘S’ (without the short, horizontal tails). The horn shown in the photograph curved from the inside edge to the outer in a simple curve akin to the quarter of a circle, or a ‘D’.
The difference in location and shape of the horns on the windows supplied by the Respondent render those windows ascetically unfit for their intended purpose, as it was made known that the horns on the new windows were intended to match those on the existing, heritage-listed house.
The supply of those windows horns therefore constitutes a breach by the Respondent of SGA sections 18 and 19, which guarantee that supplied goods will correspond with their description and be fit for a particular purpose disclosed to the seller.
The Respondent has also breached the equivalent provisions in the TPA, namely sections 70(1), 71(1) and 71(2).
In its written submission the Respondent relied upon clause 4(a) of the terms and conditions of the contract, which states that the client must make a claim for breach of contract in writing within 7 days of supply of the goods.
The Applicant states that he contacted the Respondent about the horns being incorrectly designed and fitted but does not specify dates. The only definite evidence provided is an email of 20 January 2011 which makes reference to a conversation ‘prior to Christmas’ in which the horns were discussed. These dates are well beyond the stipulated 7 days after delivery, which was in October 2010.
However, the Tribunal notes that section 68 of the TPA states that the guarantees cannot be excluded by contract.
Therefore, the Respondent’s liability for supplying goods that were not fit for their intended purpose and which did not match their description is not excluded by the contract between the parties.

Bi-fold Door

The Applicant asserts that the Respondent supplied him with a bi-fold door that was too small for the apertures in which they were installed. This resulted in unsightly gaps between the door and the door-frames (demonstrated in photographs) and draughts. The Applicant states that he has been unable to resolve this issue by re-hanging the door.
The Respondent claims that the bi-fold door supplied was manufactured according to Australian standards, and that it is the builder’s responsibility to hang the door correctly to reduce gaps.
The Order Schedule sheds no light on this issue other than to establish that the measurements and particulars of the doors are clearly expressed and unlikely to have been misread.
The Applicant’s submissions imply that the door has been manufactured to the size desired in the Order Schedule but that this size was incorrect.
The Applicant’s submissions indicate that communication with the Respondent was via telephone and email; the Respondent did not attend the property to take measurements for the windows and doors itself, but was given those measurements by the Applicant.
In light of this and in the absence of any contrary evidence the Tribunal does not find that the Respondent breached the SGA or the TPA as the doors were supplied in acceptable condition and their dimensions and shape corresponded to the descriptions in the Order Schedule.

Fly-screens

The Applicant claims that it was agreed that the windows would be supplied with aluminium mesh rather than nylon or none, but that the products supplied were not so fitted. At the hearing on 18 April 2013, the Applicant stated that ‘the wrong fly-screens were supplied’.
The Respondent’s submissions only address the issue of missing screens, and disclaim liability by again relying on the contract clause requiring a written claim within 7 days of supply (clause 4(a)).
The Applicant has provided evidence of an email sent to the Respondent on 18 June 2010, prior to the final order being placed, reminding the Respondent of the changed bathroom window size and asking that all fly-screens be aluminium:
‘Also can you include aluminium flyscreen mesh as discussed the other day.’
The July Order Schedule was not amended by the Applicant to reflect this; it still read ‘nylon mesh’ in the relevant sections. The same is true of the Order Schedule for the delivery in October 2010.
The sections of the Schedule which specify ‘nylon mesh’ are prominent and easily visible, and occur on each page.
The Tribunal also notes that there was no adjustment of price to indicate that the order had been changed to include new materials.
Both the SGA and the TPA guarantee that goods are of acceptable quality and match their description. In this case, however, there is no evidence that the Respondent actually agreed to include aluminium mesh fly-screens. In contrast, there is ample evidence to indicate that what was ordered was nylon mesh fly-screens, and that this was approved by both parties prior to entering into the contract.
There is no breach of contract or consumer law by the Respondent in relation to the fly-screens.

Damages

Given that the Respondent has breached the SGA and the TPA guarantees, the Applicant is entitled to certain remedies.
In relation to the bathroom windows, the Applicant seeks a refund of the price of the replacement window and damages of $6000.00. Both of these remedies are within the ambit of the legislation.
The Tribunal allows the refund of $4000 for the cost of the bathroom window.
The damages of $6000.00 includes the cost of finding accommodation for the Applicant and his children until the construction work was complete (a process the Applicant claims was delayed for about 3 months by it being necessary to order a replacement bathroom windows), as well as costs of equipment hire and compensation for the delays caused to construction. These claims are not particularised further, and are not substantiated by evidence such as receipts or market prices for the costs claimed, or evidence that the granting of the Certificate of Occupancy and Use (if required for the construction) was delayed.
The Tribunal notes that the Applicant reduced the sum total of damages sought to fall within the Tribunal’s jurisdiction but did not identify which of the three claimed costs was to be reduced to achieve this; their total as specified in his submissions still computes to more than $6000.00.
The Tribunal also notes that the Applicant contributed to the bathroom windows being incorrectly sized by signing off on the Schedule while it was only partially updated.
In light of the above the Tribunal is unable to quantify the economic loss consequential to the breaches with sufficient precision to justify making such an award.
In relation to the horns, the Applicant seeks the Respondent to supply the horns as per the Schedule to the contract. This remedy is one contemplated by the legislation and is granted.
The Applicant sought for to be reimbursed for the $123.00 in fees he paid to the Tribunal. Given the delays caused by the non-attendance and inaction of the Respondent – who has not attended any hearing except for one and who neglected to join Airlite to the proceedings – the Tribunal is minded to grant this.

Findings

The Respondent has breached the consumer law guarantees in relation to the supply of the Applicant’s bathroom windows. The windows were not fit for purpose and did not match their description. The Applicant paid for replacement windows and is to be refunded $4000.00 for that expense.
The Respondent also breached the SGA and the TPA by supplying windows with horns that did not correspond with their description and were not fit for the purpose of matching existing horns in the heritage-listed house.
The Respondent is to supply new horns that match the description in the Schedule for all windows that it supplied to the Applicant which required horns of that design.
The Applicant is to supply the Respondent with a document setting out the particulars (such as location and dimensions) for each window to be re-fitted by 30 April 2015. The Respondent must supply the new window horns to the Applicant by 30 June 2015.
The Applicant’s claims in relation to the bi-fold door and aluminium fly-screens have not been made out.
The Respondent is to reimburse the Applicant the tribunal’s processing fee of $123.00. This brings the total sum to be paid by the Respondent to the Applicant is $4123.00, consisting of the refund for the bathroom windows and the tribunal fees. This sum is to be paid by 30 April 2015.
………………………………..
Mr A. Anforth
Senior Member
HEARING DETAILS

FILE NUMBER:	XD 11/1202
PARTIES, APPLICANT:	Zelko Gashparac
PARTIES, RESPONDENT:	Broadview Windows Pty Ltd
TRIBUNAL MEMBERS:	Mr A. Anforth – Senior Member
DATES OF HEARING:	18 April 2013 and 1 July 2013