Hailes v Doors
[2013] QCAT 92
•18 February 2013
| CITATION: | Hailes v Doors [2013] QCAT 92 |
| PARTIES: | Julie Hailes (Applicant) |
| v | |
| Doors Plus MacGregor Pty Ltd | |
| (Respondent) |
| APPLICATION NUMBER: | MCD 1448/12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 4 September 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Williams, Adjudicator |
| DELIVERED ON: | 18 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent to reimburse the applicant within fourteen (14) days the sum of $2,600 being the consideration paid under the consumer contract’s price; and 2. The applicant to make available to the respondent its goods for collection, on the following conditions: a. No later than 60 days from of the date of the this Order but within, 7 days of a replacement door and doorframe being fitted by a third party, the respondent is to be notified in writing of the availability of its goods (namely the door and doorframe and salvageable materials used to affix the door and doorframe) from the applicant’s property. b. The applicant is to provide reasonable access to the respondent and/or its agent to collect its goods from her property at a mutually agreed time by the parties; c. Until the respondent’s goods have been removed from her property, the applicant must take reasonable steps to store the said goods in a way so that they are not unnecessarily exposed to damage and theft. d. The collection and removal of the said goods is at the respondent’s own expense. |
| CATCHWORDS: | Minor Civil Dispute – Consumer trader – Statutory guarantee fitness for purpose – Refund of consumer contract price – return of goods to supplier. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Julie Hailes |
| RESPONDENT: | Mr Anderoun |
REASONS FOR DECISION
Relevant Background
As the result of a burglary at the applicant’s home a new door and doorframe was required. The applicant engaged the respondent to undertake the works. On completion of the installation a number of issues were discovered.
The applicant seeks a refund of the consumer contract price in the amount of $2,600 from the respondent and the return of goods to the respondent.
In her claim filed with the QCAT Registry, the applicant states:
a) On 20th December 2011 a quote from Door Plus MacGregor was accepted for a solid wood, maple doorframe and an entry door for $2,600.
b) The applicant was advised the doorframe and door to be installed would be a quality product, installed to a high standard, stained and sealed “with nothing else left to – the job would be complete” (as per the respondent’s website).
c) On 8th February 2012 the said doorframe and door was installed. The applicant submits the door was open when her husband inspected the work (on her behalf) and the defects, namely gaps, were not visible. The applicant’s husband therefore was prima facie satisfied and made payment.
d) However once the door was closed, a number of issues with the work were revealed:
i)The doorframe was not sealed to the brick work;
ii)Quad was used around the door;
iii)Gaps between the side panel and frame (due to lack of consistency using radius edge) not sealed;
iv)Entry door cut short with storm seal used (which was installed back to front);
v)Wood cut on site not resealed;
vi)Door rattles with striker not in far enough. The key is difficult to turn and the lock appears to seize;
vii)Uprights of frame different size to top and bottom (with joins not flush and gaps evident);
viii)Grain in panels run in different directions;
ix)Door warped by 1.1cm
The respondent refutes much of the aforementioned assertions made by the applicant.
In it’s written response filed at hearing, Doors Plus MacGregor Pty Ltd argues inter alia:
a) The installation was done in accordance with industry standards;
b) After the installation works was complete the applicant’s husband was “happy and signed for it.”
c) The respondent company has attempted to rectify the concerns of the applicant by attending the property a total of three times in addition to “heaps of phone calls.” Nonetheless, when its agents arrived at the property to inspect Mrs Hailes concerns, the respondent states:
“We arrived as per arrangements and bit (sic) hard to solve the problem if we didn’t see the light (sic). They threw torch (sic) too close on the doors and still we didn’t see it (sic). Then we fixed little of stain and marks here and there (sic). We offered to put timber quad (sic) but then she started to want my money back and not happy with the job (sic). Carpenter found her rude as well and can’t communicate (sic).”
The Tribunal accepts animosity exists between the parties and at times (during the attempted resolution of the matter) their communications with one another may not have always been exemplary. Nonetheless the Tribunal is satisfied that the claim is not frivolous and does have merit even though the respondent states at paragraph 8 of its response that “she [the applicant] is complaining on less than minor issues (sic).”
Findings of the Tribunal
The standard of proof required to support a claim in the minor civil dispute jurisdiction is not as high as the standard - ‘beyond a reasonable doubt’ required in criminal matters; instead the civil standard requires proof on the ‘balance of probabilities’. The High Court case of Briginshaw v Briginshaw[1] is the leading case concerning the ‘civil standard of proof.’ In this instance the Tribunal must, on hearing the evidence and in consideration of the seriousness and gravity of the case, be ‘reasonably satisfied’ or feel ‘comfortably satisfied’ it can reach ‘a correct and just conclusion’ for each complaint as alleged against the respondent.
[1] (1938) 60 CLR 336
Much of the original evidence relied on by the applicant appears to be superseded by the additional evidence filed at hearing; namely the details of a police report QP 1200635240 filed on 3rd July 2012 of a subsequent break and enter to the property. After the applicant filed her claim in the Registry but before the hearing, burglars allegedly tried to gain access for the second time to her home by “kicking the front door in”.
“The front door held up and they did not manage to kick it in. However, the doorframe fell in due to the installation and lack of securing to the frame of the house. Upon inspection the doorframe was secured to the house from with nothing more than three (3) groups of two (2) small tack sized nails on each side. There was simply not enough strength in the nails to support the weight of the doorframe and door.”
The applicant also supplied photographs to support these additional claims.
Fitness for Purpose
Section 61 of The Australian Consumer Law[2] provides a statutory guarantee as to fitness for a particular purpose.
(2) If:
(a) A person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) The consumer makes known, expressly or by implication, to:
[2] Schedule 2 of the Competition and Consumer Act 2010 (Cth)
(i) The supplier; or
(ii) A person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
The result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
A front door has the purpose of separating the internal space of a house from external elements, such as providing reasonable protection from climatic conditions, noise, privacy and security.
The applicant states the reason for entering into the consumer contract with the respondent in the first place was because she was a victim of a burglary and sought a new solid wood door. She claims to have made this fact known to the respondent’s representative ‘Daniel’ during his initial ‘measure and quote’ visit on 17 December 2011.
The respondent argues its representative was not informed of the alleged break in at the applicant’s home.
Yet the Tribunal notes the special instructions recorded by the respondent’s salesperson ‘Daniel’ on his ‘Measure and Quote’ document states: “Don’t take away old deadbolt, customer still wants, refit old screen door because customer feel unsafe [emphasis added] until new screen arrives.”
The Tribunal is satisfied on the balance of probabilities the applicant consumer made known, expressly or by implication to an agent of the respondent during negotiations for the provision of services, that her safety (and/or that of her property) is a concern.
The Tribunal further finds it reasonable for the applicant to expect that installation would be of such a nature or quality to provide protection against the entire door being ‘kicked in’ and not be dislodged from its frame (as was the case here).
Conclusion
The Tribunal has carefully considered all of the evidence (including oral and documentary) relied on by the parties. On the balance of probabilities the Tribunal is satisfied from the weight of evidence, the respondent’s conduct has contravened the statutory guarantee and is liable.
Remedies
As this matter was heard and determined within the Minor Civil Dispute jurisdiction, the remedies available are limited by section 13 of the Queensland Civil and Administrative Tribunal (QCAT) Act.
The Tribunal Orders:
1.The respondent to reimburse the applicant within fourteen (14) days the sum of $2,600 being the consideration paid under the consumer contract’s price; and
2.The applicant to make available to the respondent its goods for collection on the following conditions:
a.No later than 60 days from of the date of the this Order but within, 7 days of a replacement door and doorframe being fitted by a third party, the respondent is to be notified in writing of the availability of its goods (namely the door and doorframe and salvageable materials used to affix the door and doorframe) from the applicant’s property.
b.The applicant is to provide reasonable access to the respondent and/or its agent to collect its goods from her property at a mutually agreed time by the parties;
c.Until the respondent’s goods have been removed from her property, the applicant must take reasonable steps to store the said goods in a way so that they are not unnecessarily exposed to damage and theft.
d.The collection and removal of the said goods is at the respondent’s own expense.
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