Kaethe Monika Fahrenhorst T/As Woden Valley Glass Service v Haida Passos and Malcolm McAllister (Civil Disputes)
[2009] ACAT 37
•28 September 2009
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION:KAETHE MONIKA FAHRENHORST T/AS WODEN VALLEY GLASS SERVICE v HAIDA PASSOS AND MALCOLM McALLISTER (Civil Disputes) [2009]
ACAT (37)
XD 185 of 2009
Catchwords: CIVIL DISPUTE – no issue of principle
Legislation: Sale of Goods Act 1952 s 53(3)
Tribunal: A. Anforth, Senior Member
Date of Orders: 28 September 2009
Date of Reasons for Decision: 28 September 2009
AUSTRALIAN CAPITAL TERRITORY)
CIVIL AND ADMINISTRATIVE TRIBUNAL) XD 185 of 2009
BETWEEN:
KAETHE MONIKA FAHRENHORST T/as WODEN VALLEY GLASS SERVICE
(Applicant)
AND:
HAIDA PASSOS
(First Respondent)
MALCOLM McALLISTER
(Second Respondent)
Tribunal: A. Anforth, Senior Member
Date: 28 September 2009
ORDER
The Respondents have breached the contract of purchase with the Applicant.
The matter is relisted, part heard, for further evidence on the quantum of the Applicant’s losses and for argument on costs.
…………………………….
Senior Member
REASONS FOR DECISION
Overview of case:
History of the proceedings:
On 12 March 2009 the Applicant filed an application in the Tribunal in the following terms:
1. On or about 18 January 2008, at the request of the respondents, an agent of the applicant attended the premises located at 51 Greenough Circuit, Kaleen in the Australian Capital Territory, for the purpose of measuring window frames for the supply and installation of double-glazed units ("the Units").
2. On or about 29 January 2008, at the request of the respondents, the applicant supplied the respondents with a quote (Ref 883) for the supply and installation of the Units. The quote amounted to a sum of $8,910.00 ("the Sum").
3. On or about 13 May 2008, the respondents and applicant entered into an agreement ("the Agreement") for the supply and installation of the Units for consideration of the Sum.
PARTICULARS
(a) The Units were to be supplied and installed in stages;
(b) The Sum was to be paid by way of instalments.4. On or about 13 May 2008, the respondents requested that the applicant commence the first stage ("Stage One").
5. On or about 16 May 2008, pursuant to the Agreement, the applicant placed an order with a supplier for the Units required for Stage One and issued the respondents with an instalment invoice (Ref 18737) ("the Invoice") in the sum of $7,284.20, relating to Stage One.
6. The applicant received the Units required for Stage One during late May 2008.
7. The applicant has made every effort to install the Units required for Stage One and to otherwise fulfil its obligations under the Agreement. Where the applicant has not fulfilled its obligations under the Agreement, the respondents have prevented the applicant from doing so.
8. The respondents have failed to fulfil their obligations under the Agreement and have failed to pay any monies to the applicant.
REMEDY SOUGHT
1. An order in favour of the applicant in the sum of $8,910.00 plus costs of $112.00 and interest of $193.33.
On 19 May 2009 the parties attended conciliation in the Tribunal. No agreement was reached by the parties and the matter was then listed for hearing.
On 11 June 2009 the Applicant filed and served a Statement of Facts and Contentions (ASFC) (Ex. 1) with attachments. Following some amendments made at the commencement of the Tribunal hearing the ASFC read as follows:
1. My name is Rodney John Barnett of Rod J Barnett & Associates, Suite 1 Paragon Mall, Corner of Gladstone and Kembla Streets, Fyshwick in the Australian Capital Territory. I act on behalf of the Applicant in their claim for the recovery of $7,284.20 plus interest from the Respondents.
2. On or about 21 January 2008, at the request of the Respondents, an agent of the Applicant, Mr John Gates, attended the premises located at 51 Greenough Circuit, Kaleen in the Australian Capital Territory ("the Premises"), for the purpose of measuring window frames for the supply and installation of double glazed units ("the Units"). The Measuring Docket from that attendance is attached and marked "A".
3. On or about 29 January 2008, at the request of the Respondents, the Applicant provided to the Respondents, by way of facsimile, a quote (reference number 0883) for the supply and installation of the Units. The quote amounted to a sum of $8,910.00. The Quotation Form is attached and marked "B".
4. On or about 13 May 2008 the Applicant received an email from Ms Haida Passes, confirming the Respondents order in writing. A copy of the email is attached and marked "C". The Applicant contends that the parties entered into an agreement that the Units were to be supplied in stages.
5. The Respondents stated that they were ready to go ahead with the first stage ("Stage One") of the instalments once they had received confirmation of the cost for that stage.
6. The Applicant contends that she contacted Haida Passos by phone at the request of Haida Passos to confirm the requirements for Stage One. A copy of the Measuring Docket from that attendance is attached and marked "D".
a. The Applicant contends that the Respondents confirmed with the Applicant that they were ready to go ahead with Stage One.
7. On or about 16 May 2008 the Applicant contacted Haida Passos by phone and confirmed the costs of Stage One to be $7,284.20. The Applicant contends the Haida Passos agreed to this sum and therefore entered into an agreement with the Applicant for the supply and installation of the Units for Stage One ("the Agreement").
a. The Applicant contends the Respondents agreed to the amount of $7,284.20.
b. The Applicant contends the Respondents requested bank details from the Applicant and stated that they would deposit half the cost of Stage One straight away.
8. On or about 16 May 2008 the Applicant prepared a Tax Invoice for Stage One (reference number 18737) and forwarded it to the Respondents by facsimile. The Applicants bank details were recorded on the Invoice at the request of the Respondents. A copy of this Invoice is attached and marked "E".
9. On or about 16 May 2008 the Respondents [sic Applicant] placed an order with the manufacturer Moen Glass by facsimile (reference number 6058) for the Units required for Stage One. A copy of this Purchase Order Form is attached and marked "F".
10. On or about 26 May 2008 the Applicant received the Units for Stage One from Moen Glass. A copy of the Delivery Docket from Moen Glass is attached and marked "G".
11. The Applicant contends that she contacted Haida Passos and arranged an appointment for three of its agents to attend the Premises to install the Units.
12. The Applicant contends that between 26 May 2008 and 3 June 2008 the Applicant attempted several times to contact the Respondents by telephone to confirm the details of the installation.
13. On or about 3 June 2008 the Applicant sent a facsimile to Mr Malcolm McAlister, given that there had been no communication received from either of the Respondents. A copy of that facsimile is attached and marked "H".
14. The Applicant contends that on or about 3 June 2008 Mr Malcolm McAlister contacted the Applicant by telephone and postponed the appointment to install the Units. A second appointment was made for 2 July 2008.
15. The Applicant contends that on or about the morning of the 2 July 2008 the Respondents contacted the Applicant and rescheduled the appointment at short notice to install the Units. A third appointment was made for three (3) to four (4) weeks later.
16. The Applicant contends that the Respondents contacted the Applicant [and] deferred the third appointment.
17. The Applicant contends that the Respondents again contacted the Applicant and asked to cancel the third appointment.
a. The Applicant contends that the Respondents stated that a third party had advised them that the Units could not be fitted to the windows at the Premises.
b. The Applicant contends that the Respondents were advised that similar units had been fitted previously. The Applicant offered to install one unit to demonstrate. The Respondents did not agree to this but did agree to a small demonstration at the premises.
18. The Applicant contends that an agent of the Applicant attended the premises and successfully demonstrated that the Units could be fitted.
a. The Applicant contends that after witnessing the demonstration, the Respondents agreed to continue with the Agreement.
b. The Applicant contends that another appointment was made to install the Units to the premises.
19. The Applicant contends that Ms Haida Passos contacted the Applicant to cancel the appointment to install the Units but confirmed that the Respondents still required the Units.
a. The Applicant contends that Ms Haida Passos stated that the Respondents were getting new windows installed by a third party but the third party would still be using the Units ordered from Moen Glass.
20. The Applicant contends that the Respondents contacted the Applicant and informed that they no longer required the Units.
a. The Applicant contends that Mr Malcolm McAlister contacted the Applicant and stated that the third party would not install the Units ordered from Moen Glass and the Applicant was "stuck with them" or words to the effect thereof.
21. The Applicant contends that the Respondents made the Agreement with the Applicant and the Respondents have failed to fulfil their obligations under the Agreement.
22. The Applicant contends that as at the date of this statement, the amount of $7,284.20 remains outstanding from the Invoice dated the 16 May 2008.
23. The Applicant seeks to claim the sum of $7,284.20 plus costs of $112.00 and interest of $332.28 being equivalent a total amount of $7,728.48.
Annexure C to the ASFC is a significant document in this case that justifies citation in full. It is an email from Haida Passos to the Applicant dated 13 May 2008 which read:
Dear Kaethe
Just to confirm our order in writing we are looking for glass with a low U value and high solar heat gain coefficient for the following windows:
[there follows a list of windows]As a variation we are looking for glass with a low U value and low solar heat gain coefficient for the following windows:
[there follows a list a windows]As discussed it seems double glazing argon gas filled, with clear glass one side and high or low (depending on the window) solar heat gain Low E glass on the other side will fit the bill. For optimal thermal performance, where ever possible we would like a 12mm space and a low conductance spacer between the glass layers (that is not aluminium).
In terms of installation stage one consisted of the following windows (and we are ready whey you are):
[there follows a list of windows]The remaining windows will follow as Malcolm brings home the bacon. Would you please confirm the cost for stage one, as well as the cost for the remaining windows so we can agree to the former and begin saving for the latter.
Annexures E and F of the ASFC are also important documents. Document E is the invoice send from the Applicant to the Respondents on 16 May 2008. This invoice is headed “Tax Invoice/Delivery Docket” and notes:
(a) each window separately
(b) the dimensions of each window
(c) that the glass is to be clear on one side and “low E” on the other side
(d) argon filled
(e) 20mm
(f) high solar gain for certain specified windows
(g) low solar gain for other specified windows
(h) the price
(i) the notation “go ahead 16/5/08”
(j) a notation of a date Wed 8.00 2/7/08” (the proposed installation date).
Document F is the order for to Moen Glass which contains the same details as the invoice immediately above.
The Applicant tendered a statement of her evidence (Ex. 2) which read:
My name is Kaethe Monika Fahrenhorst and I reside at 1 Bogan Place, Kaleen in the Australian Capital Territory.
In relation to the circumstances surrounding my claim to recover the sum of $7,284.20 plus interest from the respondents, I submit the following statement which is based on my own personal recollection of the events.
1. I own and operate the business known as Woden Valley Glass Service ABN 37 407246553,
2. On or about 21 January 2008, at the request of the Respondents, I arranged for my employee Mr John Gates to attend the premises located at 51 Greenough Circuit, Kaleen in the Australian Capital Territory ("the Premises") for the purpose of measuring window frames for the supply and installation of double glazed units ("the Units").
3. On or about 29 January 2008, at the request of the Respondents, I provided to the Respondents, by way of facsimile, a quote (reference number 0883) for the supply and installation of the Units. The quote amounted to a sum of $8,910.00.
4. On or about 13 May 20081 received an email from Ms Haida Passos confirming the Respondents’ order in writing. Ms Passes stated that the Respondents would prefer the Units to be installed in stages. In relation to the first stage ("Stage One") Ms Passos made a statement to the effect of "we are ready to go when you are". She also asked me to confirm the cost of installing Stage One.
5. On or about 16 May 20081 telephoned Ms Haida Passos to discuss the cost of Stage One. I stated that Stage One would cost $7,284.20. She said to me words to the effect of "let's do it”. She also stated that if I placed the order to our manufactures on that day and sent her our bank details, she would deposit half of the cost straight away. I said words to the effect of "That's not necessary, payment can be made on delivery". However Ms Passes insisted that she had the money and would pay half the cost as soon as she received the bank details.
6. On or about 16 May 2008 I prepared a Tax Invoice for Stage One (reference number 18737) and forwarded it to the Respondents by facsimile. I recorded the relevant bank details on that Invoice to enable Ms Passos to deposit the funds. To my knowledge no funds were received from the Respondents.
7. On or about 16 May 2008 I placed an order with our manufacturer, Moen Glass, by facsimile (reference number 6058) for the Units required for Stage One.
8. On or about 16 May 2008I received the Units for Stage One from Moen Glass.
9. I contacted the Respondents and made an appointment for three of my employees, including Mr John Gates, to install the Units on the 4 June 2008.
10. Between 26 May 2008 and 3 June 2008 I attempted several times to contact the Respondents by telephone.
11. On or about 3 June 2008 I sent a facsimile to Mr Malcolm McAlister asking him to contact me as we had not received any communication from either of the Respondents.
12. On or about 3 June 2008 Mr Malcolm McAlister contacted me by telephone. At short notice he asked to reschedule the appointment to install the Units to 2 July 2008.
13. On the morning of 2 July 2008 the Respondents contacted me to reschedule the appointment to install the Units. I arranged for a third appointment for approximately three (3) to four (4) weeks later. The Respondents later deferred this appointment.
14. The Respondents contacted me to cancel their third appointment. They told me that a third party had advised them that the Units could not be fitted to the windows at the Premises. I assured the Respondents that we had previously fitted similar units and the Units would be suitable to be installed at the Premises, I offered to arrange one of my employees, Mr John Gates, to fit one of the Units at the premises to demonstrate the suitability of the Units. The Respondents refused the offer to have one of the Units fitted but agreed to a smaller demonstration.
15. I arranged for Mr John Gates to attend the Premises for the purposes of demonstrating that it was possible to install the Units.
16. After Mr John Gates attended the Premises and successfully demonstrated that the Units could be fitted, he told me that the Respondents were willing to go ahead once again and I should arrange for another appointment. I made an appointment with the Respondents for on or about 13 August 2008 to have the Units installed.
17. Prior to the 13 August 2008 Ms Haida Passos contacted me and cancelled their appointment to install the Units. Ms Passos informed me that they would be arranging for completely new windows from a third party. However she stated words to the effect of "Not to worry we will be using the glass units (the Units) which we ordered from you."
18. A few weeks later Mr Malcolm McAlister contacted me and informed me that the third party installing the windows would not be using tho Moen Glass units (the Units). He told me words to the effect of "we were stuck with them (the Units)".
19. As at the date of this statement, I have not received any monies from the Respondents in relation to the Tax Invoice dated 16 May 2008.
A statement of the evidence of John Richards Gates (Exh3) was tendered by the Applicant which read:
My name is John Richard Gates and I reside at 23 Parkhill Street, Pearce in the Australian Capital Territory. I am an employee of the business known as Woden Valley Glass Service.
In relation to the circumstances surrounding the claim by the Applicant to recover the sum of $7,284.20 plus interest from the Respondents, I submit the following statement which is based on my own personal recollection of the events.
1. On or about the 21 January 2008 I attended the residence of the Respondents at 51 Greenough Circuit, Kaleen in the Australian Capital Territory ("the Premises") for the purpose of measuring the existing window frames so as to provide them with a quote for double glazed glass units ("the Units").
2. It is my understanding that after consultation with the Respondents an order was placed on or about 16 May 2008 with a manufacturer for the Units.
3. On 4 June 2008 I was scheduled to attend the Premises at the request of the Respondents for the purpose of installing the Units.
4. The Respondents contacted the office of Woden Valley Glass Service and cancelled my attendance at short notice.
5. On 2 July 2008 myself and two others were scheduled to attend the Premises at the request of the Respondents for the purpose of installing the Units. The Respondents contacted the office of Woden Valley Glass and postponed my attendance at short notice.
6. I was informed that the Respondents had been advised by a third party that the Units could not be fitted
7. I attended the Premises for the purpose of demonstrating to the respondents that the Units were suitable to be fitted.
8. I successfully demonstrated to Mr Malcolm McAlister that the Units were suitable and could be fitted to the Premises. Mr McAlister made the statement to the effect of "Oh yeah, let's do it."
9. On or about the 13 August 20081 was again scheduled to attend the Premises at the request of the Respondents for the purpose of installing the Units. The Respondents again contacted the office of Woden Valley Glass and cancelled my attendance at short notice.
The matter was listed before the Tribunal on 11 June 2009 at which time Mr Barnett, solicitor appeared for the Applicant and Mr Flint, solicitor, appeared for the Respondents.
10. On that occasion the Applicant completed her evidence in chief and was substantially cross examined by Mr Flint. Due to insufficiency of time the matter was adjourned part heard until 23 July 2009 at which time Mr Flint was to continue his cross examination.
11. In the course of the Applicant’s cross examination the following documents were put to the Applicant and tendered by the Respondents:
(a) Ex. A: A letter from the Applicant to Marshall Freeman Collections P/L dated 23 December 2008
(b) Ex. B: A fax from Office of Regulatory Services dated 3 February 2009 to the Applicant
(c) Ex. C: A letter dated 10 February 2009 from the Applicant’s solicitors to the Office of Regulatory Services
(d) Ex. D: A quote from the Applicant to the Second Respondent dated 29 January 2008
(e) Ex. E: A letter from the Applicant’s solicitors to the Respondents solicitors dated 28 may 2009
(f) Ex. F: An invoice from Moen Glass to the Applicant dated 27 May 2008
(g) Ex. G: A letter from the Respondent’s solicitors to the Applicant’s solicitors dated 28 May 2009
(h) Ex. H: A fax from the Applicant to the Second Respondent dated 3 June 2008
(i) Ex. I: A second fax from the Applicant to the Second Respondent of 3 June 2009
(j) Ex. J: A letter from the Applicant’s solicitors to the Respondent’s solicitors dated 13 May 2009
12. On 9 July 2008 the Respondents filed and served its Statement of Facts and Contentions (RSFC) (Ex. K) and statements of their evidence (Ex. O and P).
13. The RSFC read:
1. On or about 22 January 2008 a servant or agent of the Applicant (John Gates) attended the Respondents' home.
2. The Respondent (Passos) sought advice, inter alia, as to the appropriate width of double glazing units ("the units") for both fixed sashes and operating sashes:
(a) Mr Gates recommended units with a maximum width of 14mm units to all sashes (consisting of two panes of 4mm in width and a space of 6mm) were appropriate for operating sashes and fixed windows;3. On 29 January 2008 a quotation number 0883 was received from the Applicant for 32 standard units of 14mm width.
4. On 13 May 2008 the Respondent, Passos, telephoned the Applicant and stated that more energy efficient units would be required.
5. On 13 May 2008 the Respondent (Passos) sent an email communication to the Applicant which required, inter alia.
(a) High solar heat gain co-efficient glass for some units as specified in the email.
(b) Low solar heat gain co-efficient glass for the remaining units specified in the email.
(c) That the supply and installation be conducted in multiple stages
(d) That "wherever possible" the units have a space between glazing
(e) That "wherever possible" units be constructed with low conductance spacers between the panes of glass.
(f) That the cost for stage one be confirmed "so we can agree".
(g) That a price be provided for remaining windows.6. On 16 May 2008 in a telephone conversation between the Applicant and the Respondent (Passos):
(a) The Applicant gave indicative prices of $7,284.00 for stage one and $4,400.00 for stage two.
(b) The Applicant stated installation could not take place before the end of June (six weeks).
(c) The Respondent (Passos) asked the Applicant how they would signify acceptance, if they decided to do so. The Applicant said acceptance over the phone would be satisfactory.
(d) The Respondent Passos stated that if the Respondents decided to proceed they would prefer to pay a deposit:i. to signify acceptance;
ii. so that both parties would know their position;
(e) the Applicant agreed and nominated a deposit price of $1,000.00 to be paid by electronic funds transfer and provided bank details to the Respondent (Passos).
7. The Respondent (Passos) denies that she accepted the quote over the phone.
8. On 21 May 2008 an invoice was received from the Applicant dated 16 May 2008.
9 On 22 May 2008 the Respondent (Passos) telephoned the Applicant. In that conversation:
(a) the Respondent (Passos) noted that all units were specified as 20mm in width;
(b) the Respondent (Passos) was told by the Applicant that the units were capable of being installed in the sash windows at the Respondent's home;
(c) the Applicant told the Respondent (Passes) that John Gates would have told her, the Applicant, that the units were suitable;
(d) the Respondent (Passes) sought the specifications of the units to verify the Respondent's requirements as set out in the email of 13 May 2009 were capable of being fulfilled and were being fulfilled.10. On 29 May 2008 the Respondent (Passes) had a telephone conversation with the Applicant in which:
(a) the Respondent queried the suitability of windows of 20mm width for the sash frames at the Respondent's home;
(b) the Respondent requested the specifications of the windows set out in the invoice of 16 May 2008.
(c) the Respondent was told by the Applicant that the units had been ordered.
(d) the Respondent told the Applicant she (the Applicant) had no authority to order the goods.11. The Respondents deny there had been an arrangement by telephone or otherwise for the windows to be installed on 4 June 2008, or at any other time.
12. On 3 June 2008 the Respondents (McAllister) received two facsimile messages from the Applicant requiring the Respondents to contact the Applicant's servant or agent, Mr Gates.
13. On 3 June 2008 the Respondent (McAllister) telephoned Mr Gates. Mr Gates offered to attend and explain how the 20mm units would be installed in the sash window frames.
14. On 4 June 2008, Mr Gates attended at the Respondent's home and:
(a) explained that the existing rebates (components of the existing window frames designed to hold the double glazing in place) would have to be entirely removed;
(b) explained that the 20mm IGU frames would be held in place by the affixing of beading on the interior and exterior of the units and demonstrated how this would be done;
(c) explained and demonstrated the beading would protrude from the window frame both in and out;
(d) the Respondent (McAlister) told Mr Gates that the proposed solution was unsatisfactory.
(e) The Respondent (McAlister) asked Mr Gates whether he had installed 20mm wide IGUs in similar sashes elsewhere before. He was unable to supply details at this time.15. On 30 June 2008, the Respondent (Passes) telephoned the Applicant. In the telephone conversation:
(a) The Respondent said the units had been ordered by the Applicant without authority;
(b) the Respondent stated that the Respondents concerns about units of 20mm in width had increased rather than decreased as a consequence of Mr Gates attendance and subsequent investigations made by the Respondents;
(c) the Respondents were unlikely to select Woden Valley Glass to supply and install the windows because of:i. Applicant's failure to provide specifications.
ii. the Applicants failure to provide examples of the installation of 20mm units to houses that have window frames similar to that existing in the Respondents’ home;
16. On Wednesday, 9 July 2008, in a telephone conversation between Mr Gates and the Respondent (Passes), Mr Gates offered to install the units by way of trial, which offer was declined by the Respondent (Passos).
17. On 26 July 2008, the Respondent (McAlister) advised the Applicant by telephone that the Respondent would not proceed with the transaction.
18. The Respondents say there were no communications with the Applicant after 26 July 2008.
19. In December 2008 the Respondent s received a letter of demand from an agent of the Applicant stating that the email of 13 May 2008 was acceptance for the quote of 29 January 2008.
20. The Respondent's deny there was any such acceptance.
21. The Applicant has refused to provide confirmation that the units ordered:
(a) comply with the Respondent's requirements for high solar and low solar value co-efficient glass as required in the email of 13 May 2009 (hereinafter the "Glazing Requirement");
(b) have non-conductive spacers between glazing.22. The Applicant made no attempt to source windows with low conductance spacers.
23. The Respondents deny that they were told that the only supplier from which the Applicant sourced window units was a supplier by the name of Moen and that it did not provide units with low conductance spacers.
24. The final dimensions of the windows installed differed from the dimensions of the windows apparently ordered by the Applicant. The dimensions of the windows ordered by the Applicant were incorrect.
CONTENTIONS
25. To the extent that it is pleaded that the email of 13 May 2008 constituted acceptance of the quote of 29 January 2008, the Respondents contend the email:
(a) was not unequivocal assent to the terms set out in the quote of 29 January 2008;
(b) altered the specifications required by the Respondents;
(c) requested the provision of quotes;
(d) evidenced no intention to be immediately bound, nor bound upon the provision of further documentation;26. To the extent that the email of 13 May 2008 was an offer by the Respondents, it is contended it was not an offer the acceptance of which could give rise to binding legal relationships. It was an invitation to treat.
27. To the extent that it is contended in the revised pleadings that there was an oral contract between the parties made at some stage between 13 and 16 May 2008 the Respondents:
(a) deny that any agreement was reached;
(b) say that quotes were required;
(c) say that it was a precondition that the Agreement would be concluded only upon payment of deposit, which did not happen.28. To the extent that the invoice of 16 May 2008 was an offer:
(a) it was not accepted verbally or in any other way;
(b) it was not accepted by conduct;
(c) it was rejected on 29 May 2008, 30 June 2008 and 26 July 2008.29. In the alternative, if there is an agreement (which is denied) it was a term and condition of the Agreement that:
(a) the units would comply with the Glazing Requirement;
(b) the units would be supplied with low conductance spacers;
(c) the units would be of dimensions that would fit into the Respondents' window frames30. The Applicant has not provided units complying with the Glazing Requirements and is thereby in breach.
31. The procurement of units with low conductance spacers was possible but was not sought by the Applicants, in breach of the Agreement.
32. The units were of the wrong dimensions, in breach of the agreement
33. The Applicant has by her conduct evinced an intention no longer to be bound by the terms of the Agreement and an inability to complete the agreement.
34. Further and in the alternative, the Respondents contend the Applicant by its conduct in the conversation of 16 May 2009, the issuing of an invoice dated 16 May 2009, and in the conversation of 22 May 2009 represented to the Applicants that units of a width of 20mm were capable of being installed in the existing window frames at the Respondent's home.
35. The representations were.
(a) as to a future matter;
(b) made in the course of trade or commerce;
(c) were made without any reasonable foundation in or and fact;
(d) were misleading and deceptive in that the goods were not capable of being installed in sash windows other than in an unsightly and unsafe manner.36. The Applicant represented, by its conduct in the telephone conversation of 16 May 2008, and by issuing the invoice of 16 May 2008 and in the telephone conversation of 22 May 2008 that it could procure units complying with the Respondent's Glazing Requirement.
37. The representations were;
(a) made in the course of trade and commerce;
(b) were as to future matters, namely the Applicants capacity to procure the units complying with the Glazing Requirements;
(c) were made without any reasonable foundation and fact;
(d) in relation to the Applicant's intentions, namely to procure units complying with the Glazing Requirements;
(e) were misleading and deceptive in that;i. no such units could be or were procured;
ii. there was no intention of procuring units satisfying the Glazing Requirement.
•Section 11 and 12, Fair Trading Act.
(f) were made in connection with the supply of goods;
(g) falsely represented that the goods were of a particular standard, quality, grade or composition.
•Section 14, Fair Trading Act.38. The Applicant represented, by its conduct in the conversation of 16 May 2009 and the issuing of an invoice dated 16 May 2009, that it could:
(a) procure units with low conductance spacers;
(b) would make efforts to procure units with low conductance spacers.39. The representations were:
(a) made in trade and commerce;
(b) were as to future matters, namely the Applicants capacity to procure the units with non-conductive spacers;
(c) were made without any reasonable basis in fact;
(d) were as to present matters, namely the Applicants intention to procure the units;
(e) were misleading and deceptive in that the Applicant had no intention of procuring such goods and in fact did not do so.40. Further in the alternative, if there is an agreement (which is denied) the Respondents contend:
(a) the Respondents by their conduct, both expressly and by implication made known to the Applicant, the purpose for which the goods were required.Particulars
A. The meeting of 22 January 2008.
B. The email of 13 May 2008.
(b) The Respondents showed the Applicants they relied on the Applicant's skill and judgement.
Particulars
A. The meeting of 22 January 2008;
B. The email of 13 May 2008;
C. The telephone conversation of 29 May 2008.
(c) The goods were of a description that it was the Applicant's business to supply.
(d) There was implied a condition that the goods would be reasonably fit for their purpose.
(e) In breach of the implied condition, the goods were not reasonably fit for their purpose.Particulars
A. The goods did not comply with the Glazing Requirement required by the Respondent.
B. The windows were of a width that could not be affixed to the sash components of the Respondents windows either safely or in a manner that would maintain reasonable aesthetic qualities of the Respondent's windows.
C. The windows were of the wrong dimensions
(f) The Respondents were entitled to reject the goods.
•Section 19 and 56, Sale of Goods Act.41. Further, and in the alternative, the Respondents contend the Applicant has not suffered loss and damage as alleged.
14. The statement from Haida Passos read as follows (Ex. O):
1. I have a home located at 51 Greenough Circuit, Kaleen, in the Australian Capital Territory, which has timber awning windows made up of a combination of fixed and operating sashes.
2. On or around Tuesday, 18 January 2008, I telephoned Woden Valley Glass. Ms Fahrenhorst answered my call. I said "Can I have a quote on retrofitting double glazing at my home". Ms Fahrenhorst said "Mr Gates will come before 4:30pm on either Monday, 21 January 2008, or Tuesday, 22 January 2008" or words to that effect.
3. On Tuesday, 22 January 2008, Mr Gates came to my home and introduced himself. I observed him measure my home's windows from the outside. After measuring, he opened a sample box of different types of glass and a conversation between us took place, to this effect.
§ Mr Gates said, "What type of double glazing do you have in mind?"
§ I said, "Is there more than one type?"
§ Mr Gates said, "Yes, there are many options available. Before making a decision, I suggest you research them. Any type of double glazing is a major financial commitment. For your windows, I'd recommend 4/6/4 units. That's about the maximum size that'll fit in your operating sashes." He then gave me a slip of paper to kick start my research. This piece of paper is at Annexure A.
4. While Mr Gates was at my home, a representative from Mitchell's Glass Works also came to my home to measure and quote on retrofitting double glazing. I said words to the following effect, "My standard practice is to get more than one quote for a job".
5. On Tuesday, 29 January 2008, my husband, Malcolm McAllister, returned home from his office with a faxed, one page quote from Woden Valley Glass (Exhibit D).
6. During the period February to April (inclusive), my husband and I researched the topic of energy efficient glazing.
7. On or around Monday, 21 April 2008, I telephoned Woden Valley Glass and spoke to Ms Fahrenhorst. Our conversation was to the following effect:
§ I said, "Earlier this year, in January, you supplied my husband and me with a quote on retrofitting double glazing at our home. When he came to measure, John suggested I research the options available. My husband and I have done so, using as a starting point the websites on the paper John gave me. We hadn't realised that there were so many variables to consider."
§ Ms Fahrenhorst said, "Yes, there's Low E, gas fill..."
§ I said, "improving the energy efficiency of our home is a priority for us. And it seems that double glazing can be a great help in keeping heat in, in winter, and keeping heat out, in summer. We thought we'd come up with a final list of the variables we're looking for but then our ideas went out the window when I came across a picture of insulating glass units which incorporate Venetian blinds in the cavity between the two glass panes. You see, our curtains are worn out and we've been considering replacing them with roller shutters - the external, insulated kind. IGUs with Venetian blinds would seem to cover our energy efficiency aim and do the job of a window treatment. Are you able to source and quote on retrofitting this type of IGU?"
§ Ms Fahrenhorst said, "Yes, I can, but it will take some time before I can get back to you. We're very busy just now. There's no need for me to send John back to re-measure. I should still have the measurements he took in January."
8. On Saturday, 10 May 2008, Ms Fahrenhorst telephoned me. Our conversation was to the following effect:
§ Ms Fahrenhorst said, "I've estimated the cost of IGUs with Venetian blinds for the window of bedroom 4 only. I want to get your opinion before pricing the other windows. Are you sitting down?"
§ I said, "Yes."
§ Ms Fahrenhorst said, "A unit with string operated blinds is roughly $3,700 before GST, many times the price of standard double glazing. And a unit with motorised blinds is roughly $5,700 before GST. You don't live in a million dollar house in O'Malley. It seems to me too much to be spending on a house in Kaleen."
§ I said, "I agree. They aren't a real option. Please don't worry about pricing any other windows or preparing a written quote for us. I think my husband and I had better return to the ideas we'd had before I got sidetracked by the IGUs with Venetian blinds. I'll call you another time to discuss them because my husband and children are waiting for me right now."
9. On Tuesday, 13 May 2008, I telephoned Woden Valley Glass and spoke to Ms Fahrenhorst. Our conversation was to the following effect:
§ I said, "We think we've got a better idea of what we're looking for and it's more than just the standard double glazing in your January quote. As it was John who first drew our attention to the range of possibilities, we'd like to give Woden Valley Glass the first opportunity to quote."
§ Ms Fahrenhorst said, "Thanks. I'll just get my papers from January so I can have them in front of me. I've got them. Now, what are you after?"
§ I said, "First up, we'd like all windows to have a low U-value. We've read a lot about how a Low-E coating can help achieve this."
§ Ms Fahrenhorst said, "Are you still planning on roller shutters? I said, "We're not sure."
§ Ms Fahrenhorst said, "If you have roller shutters on the outside, you don't need Low E. If you don't install roller shutters, you need Low-E."
§ I said, "Is it possible to add Low-E at a later date?"
§ Ms Fahrenhorst said, "No. Low-E is put on at the factory at the time of making the IGU. If you want it, you have to specify it before the units are made. For your windows, it will add about $2,000 to the overall cost."
§ I said, "In that case, please include it for all windows in the quote. We've also read that Low-E coatings can allow for different solar heat gain coefficients (hereinafter, SHGCs)."
§ Ms Fahrenhorst said, "What do you mean?
§ I said, "Our home becomes really hot in summer on the western side. We understand that glass with a low SHGC would reduce the amount of solar heat entering. On the other hand, we want to get as much solar heat possible through the north-, south- and east-facing windows in winter. For those, it seems that a high SHGC would be better."
§ Ms Fahrenhorst said, "So, which of your windows do you want a high SHGC for?"
§ I said, "The kitchen, laundry, bed 1, bed 2, toilet, bathroom and the large lounge window. That leaves a low SHGC for the small lounge window, dining, bed 3 and 4."
§ Ms Fahrenhorst said, "Do you still want the bathroom and toilet to be obscure?"
§ I said, "I think so. Does it reduce the amount of light entering the room?"
§ Ms Fahrenhorst said, "Not really, but it does mean that you can't see in, which is what you want for the bathroom. Most people prefer it."
§ I said, "I think I do too. I don't like curtains in wet areas and if you can't see in, then presumably you can do without. So yes, make the bathroom and toilet obscure and the rest clear.
§ Ms Fahrenhorst said, "Since you're so interested in energy efficiency, you should also consider a gas fill."
§ I said, "We've read that there's a choice of two: argon and krypton."
§ Ms Fahrenhorst said, "I've priced argon before. It adds about $25 per panel to the cost. Krypton is more difficult to get and expensive and it doesn't make much difference to the U-value."
§ I said, "Can either gas be added later?"
§ Ms Fahrenhorst said, "No, it's the same as Low-E. Once the IGU is sealed, that's it."
§ I said, "Better include argon for all windows in the quote then. Next up are low conductance spacers."
§ Ms Fahrenhorst said, "What do you mean?"
§ I said, "We've read that metal spacers made from aluminium are good conductors of heat and that therefore, to maximise insulation performance of the IGU, it's better to choose low conductance spacers such as thermoplastic ones. We'd like those for all windows, too." Is there anything else?"
§ I said, "Yes, we've read that a 12mm space is better insulation than a 6mm space. We realise we're limited to about 14mm wide IGUs for the operating sashes but is it possible for us to have 20mm wide or 4/12/4 units in the fixed sashes?
§ Ms Fahrenhorst said, "What, different sized IGUs for different sashes?"
§ I said, "Yes. We wondered whether you and John had specified 4/6/4 IGUs in January because you'd assumed that we'd want the same size for all sashes and that 4/6/4 was the maximum that would fit in the operating sashes."
§ Ms Fahrenhorst said, "I haven't seen your windows. I would have written down what John told me. He must have said 6mm for a reason. I'll have to check with him. Now, do you want me to price all your windows?"
§ I said, "Yes, except for the sidelights to the door. We've been told that the door frame is beyond repair and that we'll need to replace the whole thing, door and sidelights included, so it'd be pointless paying to retrofit double glazing to the sidelights now."
§ Ms Fahrenhorst said, "Okay."
§ I said, "Finally, would you list the windows in your quote and write beside each one its individual specifications and price."
§ Ms Fahrenhorst said, "Why?"
§ I said, "At the moment, our plan is to retrofit the windows in the living areas - that's lounge, dining and kitchen - and two of the bedrooms initially, and then consider retrofitting the others in turn based on their relative benefit/price. But then again, if we know each window's individual price, we might change our mind and decide on a different starting combination."
§ Ms Fahrenhorst said, "Okay."
10. During my telephone conversation with Ms Fahrenhorst on Tuesday, 13 May 2008, Ms Fahrenhorst's attention was called away several times on her end of the line. That, as well as the length and detailed nature of our conversation, led me to form the view that it would be in my interest of getting an exact quote to confirm our discussion in writing. I therefore emailed her later the same day (Ex 1 annexure C).
11. On Friday, 16 May 2008, Ms Fahrenhorst telephoned me. Our conversation was to the following effect:
§ Ms Fahrenhorst said, "I've got some figures for you to think about. I've priced the kitchen, dining, lounge, bed 1 and bed 2 windows as $7264.20.
§ I said, "And do you have a price for the remaining windows?" Ms Fahrenhorst said, "A rough estimate is $4,400."
§ I said, "That's better than the last time you gave me figures. I'll talk to my husband but in the meantime, please go ahead and prepare a quote in writing for us."
§ Ms Fahrenhorst said, "Okay."
§ I said, "The quote you sent my husband in January didn't specify how to accept it. If my husband and I decide to proceed, how do we go about it?"
§ Ms Fahrenhorst said, "What do you mean?"
§ I said, "Well, with other quotes that we have received, there's usually a little note at the bottom of the quote specifying that a signature, or the payment of a deposit, or both a signature and the payment of a deposit, is needed to show acceptance."
§ Ms Fahrenhorst said, "I don't need that. You can just ring and tell me." I said, "I'm not really comfortable with that approach." Ms Fahrenhorst said, "What would you like then?"
§ I said, "I suppose I'd prefer to pay a deposit because I'm not really all that keen on driving down to a glass shop in Woden with two very active toddlers in tow to sign a paper. I think they could do more damage than the proverbial bull in a china shop."
§ Ms Fahrenhorst said, "A deposit isn't necessary. You can just ring."
§ I said, "I really would prefer to pay a deposit if we decide to proceed so that we both would know where we are at."
§ Ms Fahrenhorst said, "How much would you want to pay then?"
§ I said, "I don't know. 10%?"
§ Ms Fahrenhorst said, "What about $1,000?"
§ I said, "That sounds fair. What forms of payment do you take? Cheques? Bank transfers?"
§ Ms Fahrenhorst said, "Bank transfers."
§ I said, "Well, in that case, would you write the bank details on the bottom of your quote, too, because I think the January quote didn't have those either."
§ Ms Fahrenhorst said, "All right."
§ I said, "One last thing, would you please post your quote this time rather than faxing it?"
§ Ms Fahrenhorst said, "Why is that?"
§ I said, "Two reasons. My husband isn't at his office this week to get a fax and, if you post it, we'll be able to read the other side of the page?"
§ Ms Fahrenhorst said, "What do you mean?"
§ I said, "Well, the fax was only one page and, as the terms and conditions weren't set out at the bottom of it, we supposed the original quote was double-sided and that they were on the other side."
§ Ms Fahrenhorst said, "No, I don't have any terms and conditions. But I do have to tell you that if you and your husband decide to proceed, even if you decide tomorrow, I won't be able to install any windows before the end of June. I've so much work on hand to finish first."
§ I said, "Right, thanks for letting me know that."
12. On Wednesday, 21 May 2008, my husband and I received via the post at our home a document (Annexure B). As we were expecting a quote, I assumed it was a quote. We observed that it provided for the supply and installation of 20mm wide IGUs for all sashes. We were concerned about this as it was not consistent with the advice Mr Gates had given me in January.
13. On Thursday, 22 May 2008, I telephoned Woden Valley Glass and spoke to Ms Fahrenhorst. Our conversation was to the following effect:
§ I said, "We received your quote in the mail yesterday. I see that you've specified all units as 4/12/4. I thought John had said that our operating sashes could only accommodate 4/6/4 units."
§ Ms Fahrenhorst said, "Yes, but you know the width of the space doesn't affect the cost of an IGU. It's still the same two panes of glass but with a different size space between them."
§ I said, "It's not for the reason of cost that I'm asking, it's because we understood that the width of our operating sashes was too small for a 20mm IGU.
§ Ms Fahrenhorst said, "Whatever I have written down must be right." I said, "Hmm..."
§ Ms Fahrenhorst said, "Anyway, I would have asked John who would have told me that they would be okay".
§ I said, "Do you think you could resend your quote? It seems that you've written down the measurements beside each window rather than the specifications..."
§ Ms Fahrenhorst said, "I've written the specifications along the top and down the side."
§ I said, "We're keen not just to get each window's detailed specifications -the U-value number, the SHGC number and the like. If you recall, we're also keen to get individual prices per window."
§ Ms Fahrenhorst said, "I'm very busy at the moment. I'll have to finish the other work I have on hand first."
14. On Monday, 26 May 2008, I telephoned Stegbars, which originally manufactured our home's timber awning windows. I asked for some advice on retrofitting IGUs. I was told that, whereas the fixed sashes could accommodate a 20mm unit, Stegbars advised against retrofitting an IGU that exceeds 14mm in the operating sashes.
15. On Wednesday. 28 May 2008, I telephoned the Masters Builders Association and asked for advice on the conflicting opinions. I was advised against acting contrary to a manufacturer's advice.
16. On Wednesday, 28 May 2008, I arranged for a representative from O'Brien to come to our home on Friday, 30 May 2008. I also telephoned Moen Glass and left a message requesting to speak with a double glazing representative. At the time I did not know that Moen was the manufacturer proposed by Woden Valley Glass.
17. On Thursday, 29 May 2008, I telephoned Woden Valley Glass and spoke to Ms Fahrenhorst. Our conversation was to the following effect:
§ I said, "I'm ringing again about the 20mm issue. I've spoken to Stegbars -they originally manufactured our home's windows. Stegbars advised me that 14mm is the maximum width for the operating sashes."
§ Ms Fahrenhorst said, "It's too late to consider the issue any further. I've already ordered the IGUs from Moen."
§ I said, "I don't understand. Didn't we agree that if my husband and I decided to proceed, that we would show this by transferring a $1,000 deposit to your bank account? We haven't yet paid a deposit."
§ Ms Fahrenhorst, "Yes, but I thought you were wanting to go ahead."
§ I said, "No. Not until our concerns over the 20mm issue are resolved. And not until we're sure whether your quote includes everything we're looking for. And certainly not until we're in a position to compare at least 3 quotes. Yours is the only quote we've received so far on our revised specifications.
§ Ms Fahrenhorst said, "Well, I've ordered the units and what am I to do with them? They've been measured to fit your windows. I can have John install them next week."
§ I said, "It's clear we are not understanding one another. I am not happy. You had better speak to my husband from now on."
18. On Friday, 30 May 2008, a representative from O'Brien came to our home, inspected the windows and advised against retrofitting 20mm IGUs in the operating sashes.
19. On Friday, 30 May 2008, I telephoned a legal friend for advice.
20. On Monday, 2 June 2008, Mr Mangos returned my call on behalf of Moen Glass. On the issue of appropriate IGU width, he advised that critical considerations are the width of the existing sashes, the width of the existing rebates and the proposed treatment of them, and conformity with the Australian Standard. He suggested seeking the opinion of Just Rite or ACT Glass & Glazing, both of which he considered had considerable retrofitting expertise. He also suggested inspecting windows similar to ours with 20mm IGUs installed.
21. On Monday, 2 June 2008, a representative from Intact Installations came to our home, as previously arranged, to measure and quote on retrofitting energy efficient glazing to our revised specifications.
22. On Wednesday, 4 June 2008, Mr Gates attended our home. He brought a small piece of wood with him. Mr Gates, my husband and I walked to the operating sash in the kitchen and he proceeded to demonstrate and explain the proposed installation approach. My husband then conversed with him in my presence.
23. On Saturday, 14 June 2008, a representative from ACT Glass & Glazing came to our home, inspected our windows and advised against retrofitting 20mm IGUs in our operating sashes, and against retrofitting in the manner described by Mr Gates. He also alerted us that the measurements in Woden Valley Glass' quote were inaccurate.
24. On Monday, 30 June 2008, I telephoned Woden Valley Glass and spoke to Ms Fahrenhorst. Our conversation was to the following effect:
§ I said, "I want to let you know that though my husband and I are still committed to retrofitting energy efficient glazing at our home, we're unlikely to select Woden Valley Glass to fit it."
§ Ms Fahrenhorst said, "So you won't be using the 20mm IGUs I ordered."
§ I said, "No."
§ Ms Fahrenhorst said, "Any of them?"
§ I said, "No. You ordered them without our authority. And we're still not sure what they are, and whether they include everything we're looking for. I also want you to know that we're very disappointed that we couldn't rely on your judgment and that we've had to spend time and effort investigating the 20mm issue. The more we investigated retrofitting 20mm IGUs in our operating sashes, the more our concerns increased. We can't find anyone who supports installing 20mm IGUs in our operating sashes or in the manner John described. There's a real risk associated with installing IGUs of that width in our operating sashes and we're not prepared to bear it."
§ Ms Fahrenhorst said, "I had asked John who'd said they'd be okay."
§ I said, "Are we able to inspect windows similar to ours where you've installed 20mm IGUs?"
§ Ms Fahrenhorst said, "No, I don't supply that information. It'd be breaching privacy."
§ I said, "I don't think it's a breach of privacy if you first get former customers' permission to give their contact details to a potential customer."
§ Ms Fahrenhorst said, "I'll speak to John."
This was my last communication with Ms Fahrenhorst.
25. On Wednesday, 2 July 2008, I sought a quote from Just Rite on retrofitting energy efficiency glazing to our revised specifications.
§ On Wednesday, 9 July 2008, Mr Gates telephoned me and said, "I have installed an 18mm wide IGU in a home some nine months previously but cannot contact the customer to provide particulars". Mr Gates also offered to install a 20mm wide IGU into one of our home's operating sashes by way of a trial.
§ I rejected this offer and pointed out that we were in the process of calling in another business to retrofit energy efficient glazing at our home.
§ Mr Gates asked, "Can the other business use any of the IGUs Kaethe ordered?"
§ I said, "I don't know. We could ask, but only on the understanding that we're not under any obligation to take them. You'd also have to confirm their size and that they meet the specifications we asked for."
This was my last communication with Mr Gates.
26. Just Rite "check measured" our windows before ordering IGUs. The IGUs ordered vary in length and breadth to those measured by Woden Valley Glass.
27. The IGUs ordered by Just Rite have been installed at our home and they fit. The dimensions are different to those ordered by Woden Valley Glass.
28. I have been shown a statement from Ms Fahrenhorst (No.XD 09/185 undated) and refer to the following paragraphs:
§ Paragraph 1. Unable to comment.
§ Paragraph 2. Mr Gates came to our home on 22 January 2008.
§ Paragraph 3. Ms Fahrenhorst faxed a quote to my husband.
§ Paragraph 4. Ms Fahrenhorst has omitted reference to our telephone conversation on 13 May 2008 which took place prior to, and puts into context the reason for, and content of, my email.
§ Paragraph 5. I deny the claims in this paragraph excepting the date of the telephone call and that Ms Fahrenhorst made it. For my recollection of the content of the call, see my statement above.
§ Paragraph 6. The Invoice was sent by post, not facsimile.
§ Paragraph 7. Unable to comment.
§ Paragraph 8. Unable to comment.
§ Paragraph 9. Ms Fahrenhorst did not make any such appointment with me.
§ Paragraph 10. Unable to comment.
§ Paragraph 11. See my husband's witness statement.
§ Paragraph 12. See my husband's witness statement.
§ Paragraphs 13, 14, 16 and 17. I did not make any of the appointments referred to in these paragraphs.
§ Paragraph 14. My communications with Ms Fahrenhorst are outlined in my witness statement above. I rejected an offer by Mr Gates to install a 20mm IGU in one operating sash by way of trial on 9 July 2008.
§ Paragraph 15. After his initial measure in January 2008, Mr Gates attended our home on only one other occasion - 4 June 2008. He demonstrated how he proposed to install 20mm IGUs in the operating sashes of our windows, and was arranged by my husband.
§ Paragraph 16. I did not say to Mr Gates that we were willing to go ahead.
§ Paragraph 17. I deny the claims in this paragraph. My last communication with Ms Fahrenhorst took place on 30 June 2008. By 1 August 2008, we had accepted a quote from Just Rite to retrofit energy efficient glazing at our home.
§ Paragraph 18. See my husband's witness statement.
§ Paragraph 19. I have not paid any money to Woden Valley Glass.
29. I have been shown a statement from Mr Gates (No.XD 09/185 undated) and refer to the following paragraphs:
§ Paragraph 1. Mr Gates came to our home on 22 January 2008.
§ Paragraph 2. Unable to comment.
§ Paragraphs 3, 7 and 8. Mr Gates attended our home on 4 June 2008 for the purpose of demonstrating and explaining the proposed installation approach, not for the purpose of installing units. He arrived alone at 11:00am and departed within the hour. He brought with him a small piece of wood. At no time did I hear my husband say, "Oh yeah, let's do it."
§ Paragraph 4. Mr Gate's attendance on 4 June 2008 was not cancelled.
§ Paragraph 5. My last communication with Ms Fahrenhorst took place on 30 June 2008. I have not ever made any appointment with any representative of Woden Valley Glass to install anything at my home.
§ Paragraph 6. Unable to comment.
§ Paragraph 9. I deny the claims in this paragraph. By 1 August 2008, we had accepted a quote from Just Rite to retrofit energy efficient glazing at our home.
30. At no time did Ms Fahrenhorst advise that Moen were the only manufacturers used by Woden Valley Glass. My belief was that units with low conductance spacers would be sought or at least an effort would be made to obtain them.
15. The statement from Malcolm McAllister read as follows (Ex. P)+:
1. I have a home located at 51 Greenough Circuit, Kaleen, in the Australian Capital Territory, which has timber awning windows with a combination of fixed and operating sashes.
2. On Tuesday, 29 January 2008, I received via facsimile at my office a quote from Woden Valley Glass.
3. On Friday 30 May I was in attendance as a representative from "O'Brien" came to our home, inspected the windows and advised against retrofitting 20mm IGUs in the operating sashes.
4. On Tuesday, 3 June 2008, I received two facsimiles at my office from Woden Valley Glass asking me to telephone Mr Gates.
5. On Tuesday, 3 June 2008, I telephoned Mr Gates. We had a conversation to the following effect:
§ Me: "I received your faxes. What would you like to discuss?
§ Mr Gates: "I'd like to demonstrate how we would install the units
§ Me: "OK. How about tomorrow? My wife has been asking about the unit specifications. Could you also bring the specifications of the units with you"
§ Mr Gates: "See you tomorrow".
6. On Wednesday, 4 June 2008, Mr Gates attended my home. I observed that he didn't have the IGUs with him. I did observe that he had a small piece of wood. Mr Gates, my wife and I walked to one of operating sashes (in the kitchen) and he proceeded to demonstrate and explain the proposed installation approach. At this time I observed that the proposed approach would effectively remove the entire rebate. We then had a conversation to the following effect:
§ Me: "But won't this mean that you will remove the entire rebate?". Mr Gates: "Yes, but the glass would be held in place by the beading".
§ Me: "Is that safe? Will it hold the glass in place securely? We're concerned because we have two small boys and we don't want the whole thing crashing down on them "
§ Mr Gates: "Yes."
§ Me: "Would the beading then protrude beyond the frame though?"
§ Mr Gates: "Yes"
§ Me: "We've had others tell us that units of this size are not suitable for operating sashes like this, including you, and our research to date hasn't turned up anything to support what you are proposing. Have you actually installed 20mm wide IGUs in sashes similar to ours elsewhere before? We'd like some reassurance."
§ Mr Gates: "Yes, I've done this before but can't recall the exact details"
§ Me: "I'm not reassured by your explanation. We just want windows, not windows with risk. We'd really like to speak to someone who has had similar work done".
7. On Saturday 14 July 2008 I was present when a representative from ACT Glass and Glazing came to our home, inspected our windows and advised against retrofitting 20mm IGUs in our operating sashes, and against retrofitting in the manner described by Mr Gates. He also alerted us that the measurements in Woden Valley Glass' quote were inaccurate.
8. On Saturday, 26 July 2008, I telephoned Ms Fahrenhorst and said, "we have chosen another business to install double glazed units in our home, and we won't be using your IGUs". Ms Fahrenhorst ended the telephone call by replying, "So I'm stuck with them then. Thanks".
9. I have not had any other conversation or correspondence with Ms Fahrenhorst or Mr Gates following that conversation on Saturday, 26 July 2008.
10. I have been shown a statement from Ms Fahrenhorst (No.XD 09/185 undated) and refer to the following paragraphs:
(a) Paragraph 9. I was not contacted by Ms Fahrenhorst and made no agreement for three of her employees to install the units on 4 June 2008. I did arrange with Mr Gates for him to attend our home to explain how he proposed to install the units in our operating sashes (see above).
(b) Paragraph 12. I did not contact Ms Fahrenhorst on 3 June 2008. I did contact Mr Gates on that date in response to the facsimiles I received on that date (see above). I have never scheduled or rescheduled with Woden Valley Glass an appointment to install Units at any time.
(c) Paragraph 13. I did not contact Ms Fahrenhorst on 2 July 2008.
(d) Paragraph 15. Mr Gates attended the Premises for the purpose of demonstrating the proposed installation of the Units on 4 June 2008 as detailed earlier.
(e) Paragraph 16. Mr Gates did not successfully demonstrate that the Units could be fitted. I did not say that we were willing to go ahead and I did not arrange for an appointment for on or about 13 August 2008.
(f) Paragraph 18. I did not have a conversation with Ms Fahrenhorst at any time after 26 July 2008. Ms Fahrenhorst said to me in the conversation on 26 July 2008 "So we're stuck with them then. Thanks".11. I have been shown a statement from Mr Gates (also No.XD 09/185 undated) and refer to the following paragraphs:
(a) Paragraph 3. Mr Gates attended the Premises on 4 June 2008 for the purpose of demonstrating the proposed installation approach. I have never arranged a date for installation.
(b) Paragraph 4. I did not cancel the office of Woden Valley Glass Service to cancel the attendance of Mr Gates at short notice
(c) Paragraph 5. I did not arrange an installation date on 2 July 2008, nor did I postpone attendance. I have never scheduled or rescheduled with Woden Valley Glass an appointment to install Units
(d) Paragraph 6. I recall saying "We've had others tell us that units of this size are not suitable for operating sashes like this (including you)" in the conversation with Mr Gates at our home on 4 June 2008 (refer to my paragraph 5 above).
(e) Paragraph 7. I recall that Mr Gates attended the Premises for the purpose of demonstrating to us that the Units were suitable to be fitted.
(f) Paragraph 8. Mr Gates did not successfully demonstrate to me that the Units were suitable and could be fitted to the Premises. I did not make any statement to the effect of "Oh yeah, let's do it".
(g) Paragraph 9. At no time did I schedule a 13 August installation date. I did not, therefore, cancel a non-existent arrangement to attend. I have not had any conversation with Woden Valley Glass agents subsequent to 26 July 2008.
16. On 23 July 2009 the matter resumed before the Tribunal. Mr Flint completed his cross examination of the Applicant. Mr Gates gave evidence on behalf of the Applicant and was cross examined. Then both Respondent gave evidence and were cross examined.
17. The following documents were exhibited in the course of the evidence:
Ex. L: A diagram in profile of the window
Ex. M: A table of window dimensions
Ex. N: A series of photographs of the windows
Ex. Q: A case study: Mount Macedon
Ex. R: An extract from Australian Standard AS1288-2996
18. At the end of the evidence due to time constraints the parties agreed to provide written submissions on the evidence and the law after which the Tribunal would render a decision in writing. To facilitate the parties submissions the Tribunal arranged to obtain and provide the parties with transcripts of both days of the proceedings.
19. On 20 August 2009 the Applicant filed her final submissions which read:
1. The primary issue in dispute in this matter is whether or not offer and acceptance were communicated by the parties to the extent that a contract was formed at law. The Applicant submits that an offer was made by the Applicant on 16 May 2008. The Applicant also submits that the conduct of the Respondents, when objectively considered, constituted acceptance such that the Applicant suffered damage in reliance upon that acceptance. The relevant conduct is the Respondents' communications with the Applicant which occurred during the period 13 May 2008 to August 2008, and that conduct should be considered in its entirety.
2. A subsidiary issue raised by the Respondents is that the double-glazed units, which form the subject of damages sought, could not be considered as consideration under the contract, due to differentials in various specifications. The Applicant submits that those differentials would not have caused a deviation from the terms of the contract such that the units which were ordered could not have been installed at the premises, substantially in accordance with the terms of the contract.
BACKGROUND - FORMATION OF THE TERMS
3. On either 21 or 22 January 2008, John Gates, an agent of the Applicant attended the premises of 51 Greenough Circuit, Kaleen in the Australian Capital Territory ("the Premises") for the purpose of measuring window frames for the supply and installation of double-glazed units. A copy of Mr Gates' subsequent measurements has been tendered by the Applicant as Annexure A of Exhibit 1.
4. On that occasion, during which Ms Passes of the Respondents was also in attendance, Mr Gates spoke to Ms Passos about various options relating to double-glazed units generally. He provided her with a sheet of paper listing some useful websites which would assist Ms Passes' research. That paper has been tendered by the Respondents as Annexure A of Exhibit O.
5. The Respondents have contended, in paragraph 3 of Exhibit O, that in the same conversation, Mr Gates recommended 14mm units for the sashes at the Premises. That evidence is not contested by the Applicant insofar as Mr Gates has admitted in cross-examination that 14mm is a common thickness for double-glazed units in general.
6. Following Mr Gates' attendance at the Premises, on 29 January 2008, the Applicant sent Mr McAllister of the Respondents, by way of facsimile, a written quotation ("the Written Quotation"). A copy of the Written Quotation has been tendered by the Applicant as Annexure B of Exhibit 1 (albeit annotated) and also by the Respondents as Exhibit D. The Written Quotation detailed the estimated cost of supply and installation of 32 double-glazed units at the Premises, the units being 14mm in width.
7. It is clear from the evidence that subsequent to the provision of the Written Quotation, Ms Passes and Mr McAllister proceeded to engage in research regarding alternative options relating to double-glazed units. This research prompted Ms Passes and Mr McAllister to seek variations ("the Variations") of the units, as compared to those which were quoted in the Written Quotation.
8. The Variations were communicated by the Respondents to the Applicant in a telephone conversation which took place on 13 May 2008, as evidenced by the annotations on Annexure B of Exhibit 1. The Variations are also evidenced by the email of 13 May 2008 (see Annexure E of Exhibit 1), and are detailed as follows:
• High solar heat gain for seven of the double-glazed units, and low solar heat gain for four others;
• Argon gas filling:
• Low E-glass:
• A 12mm space between glass layers "whether possible"; and
• Non-aluminium spacers.
OFFER & ACCEPTANCE
9. It is not disputed by the parties that an offer was made by Ms Fahrenhorst to Ms Passos for the supply and installation of double-glazed units with Variations at the Premises for consideration of $7,284.20 on 16 May 2008. However, it is not clear from the evidence whether acceptance was communicated by the Respondents. The Applicant establishes its case by considering each alleged event chronologically, taking into account the evidence that has been adduced. It is argued that the conduct of the Respondents could be objectively understood only as comprising acceptance, and that the Applicant suffered loss in reliance upon that acceptance.
TELEPHONE CONVERSATION OF 13 MAY 2008
10. Both Ms Fahrenhorst and Ms Passes agree that there was at least one telephone conversation on 13 May 2008. Ms Passes particularised this conversation in great detail in her witness statement, at paragraph 9 of Exhibit O. The Applicant admits that the Variations were communicated during that conversation, as evidenced by annotations made by Ms Passes upon the Written Quotation which is at Annexure B of Exhibit 1. However, Ms Passes' recollection of having requested a list of windows with individual prices (and specifications) is challenged on the grounds that the recollection is not supported by related evidence. In particular, that particular request, which has been given substantial importance retrospectively, was not re-iterated in the email of 13 May 2008 (at Annexure C of Exhibit 1). The sums requested by Ms Passos in that email, were "the cost for stage one, as well as the cost for the remaining windows". Whilst it could be argued that the latter part of this phrase impliedly requested individual pricing, a reading of the entire sentence does not indicate that intention at the time.
EMAIL OF 13 MAY 2008
11. As the Honourable Member commented, the email of 13 May 2008 is an ambiguous document. The Applicant would like to draw the Tribunal's attention to several phrases in particular. On the one hand, the purpose of the email was "just to confirm [the Respondents'] order in writing". After describing the Variations (which were presumably those discussed in the earlier telephone conversation of the same day), Ms Passos wrote: "In terms of installation, stage one consists of the following windows (and we are ready when you are)". She then proceeded to list six windows, as comprising stage one, with "the remaining windows [to] follow as Malcolm brings home the bacon".
12. In her examination-in-chief, Ms Passos recalled that at 13 May 2008, she was in the process of obtaining quotes from multiple suppliers. This recollection was reiterated in her cross-examination. However, that alleged intention contradicts totally with the words of the email of 13 May 2008. That is, the phrase "In terms of installation...we are ready when you are" would not reasonably lead one to believe that other suppliers were still being consulted.
13. In cross-examination, Ms Passes attempted to justify this contradiction by asserting that by writing "we are ready when you are", she was actually requesting Ms Fahrenhorst to confirm the time at which she would be in a position to install the units "if she was to be chosen". However, given that no mention was made of third parties in the email, it is argued by the Applicant that a reasonable interpretation of Ms Passes' words would have been, and indeed was, that the Respondents were at that stage intending to proceed with the Applicant as supplier and installer of the double-glazed units.
TELEPHONE CONVERSATION OF 16 MAY 2008
14. Both parties agree that Ms Fahrenhorst and Ms Passes had a telephone conversation on 16 May 2008. It was during this conversation that Ms Fahrenhorst made an oral offer for stage one, costing $7,284.20 (see paragraph 5 of Exhibit 2 and paragraph 11 of Exhibit O) ("the Offer"). It is also apparent that Ms Passos requested direct bank transfer details of Ms Fahrenhorst (which were later detailed on the invoice dated 16 May 2008 - see Annexure E of Exhibit 1).
15. However, the parties' respective accounts diverge in relation to the reason Ms Passos requested those details. According to Ms Passos, she requested the details so that she could later signify acceptance of the Offer by transferring a deposit of $ 1,000.00 (see paragraph 11 of Exhibit O). According to Ms Fahrenhorst, Ms Passos requested the details in order to transfer half of the invoice price, as an incentive for Ms Fahrenhorst to place the order with the manufacturers immediately (see paragraph 5 of Exhibit 2). In relation to the method of payment, Ms Passos alleged that it was Ms Fahrenhorst who suggested direct bank transfer as her preferred method. In re-examination, Ms Fahrenhorst testified that her usual business practice is to receive payment via credit card or cheque, "on the day of completion of the job ".
16. It is predicted that the integrity of Ms Fahrenhorst's evidence will be challenged by the Respondents on the grounds of what may be interpreted as inconsistencies, particularly regarding the manner of acceptance of the Offer. In Exhibit A, Ms Fahrenhorst alleged that acceptance was communicated in writing on 13 May 2008. In Exhibit B, it can be deduced that Ms Fahrenhorst had told the Office of Regulatory Services that acceptance was orally communicated.
17. These prima facie inconsistencies, which were gleaned in cross-examination, are a result of two factors. Firstly, Ms Fahrenhorst, as a practical businesswoman with no legal training, interpreted the word 'acceptance' in its common usage, not in its legal effect. When the solicitor for the Respondents asked Ms Fahrenhorst in cross-examination whether there was a verbal agreement, Ms Fahrenhorst replied: "Yes, I spoke to [Ms Passos] previously and I told her I would get back to her. "
18. Secondly, Ms Fahrenhorst's business practice is founded on principles of trust and honesty ("I handed it to Rod, everything to Rod, and I trusted him to do a good job for me"}, and accordingly, there is admittedly a lack of record-keeping by Woden Valley Glass Service. Most of Ms Fahrenhorst's communication with customers is done orally ("I do a lot of things verbally, right?" ... "a verbal go-ahead will be sufficient") and consequently precise dates are not always recorded, and especially not remembered a year later: "I don't remember the exact dates without seeing my notes ".
19. In contrast, the Applicant submits that the genuineness of Ms Passos' evidence should be considered with a critical mind, on account of its precision. The level of particularisation in Exhibit O should not automatically be positively linked to factual accuracy, especially where those particulars fill gaps in the circumstantial evidence (being the email of 13 May 2008 and invoice of 16 May 2008) to establish the Respondents' case. It is submitted that during the telephone conversation of 16 May 2008, Ms Passes orally accepted the Offer and offered to pay Ms Fahrenhorst half of the consideration as an incentive that Ms Fahrenhorst place an order with the manufacturers immediately. It is also submitted that it was Ms Passes who preferred a direct bank transfer as a method of payment and that it was she who requested the details from Ms Fahrenhorst. This interpretation of the evidence is certainly consistent with the issuing of an invoice, not a quote, on 16 May 2008.
INVOICE OF 16 MAY 2008
20. On 16 May 2008, Ms Fahrenhorst faxed and sent by post a document ("the WVGS Invoice") which was tendered as Annexure E of Exhibit 1. The WVGS Invoice clearly reads across the heading: "TAX INVOICE / DELIVERY DOCKET". It is the Respondents' contention (paragraphs 11 and 12 of Exhibit O) that they were expecting the WVGS Invoice to be a quote. However, it might be queried why, as astute as Ms Passes apparently was, she did not raise the discrepancy between the respective formats of the WVGS Invoice and the Written Quotation which was provided earlier. The Applicant submits that no issue was raised because Ms Passes was in fact expecting an invoice (not a quote) because a contract had already been formed for supply and installation of stage one of the double-glazed units with Variations for the sum of $7,284.20.
21. Ms Fahrenhorst's following conduct supports this contention - on 16 May 2008 she sent to the manufacturers, Moen Glass, a purchase order form ("the Purchase Order Form") for the double-glazed units which would be required for stage one (Annexure F of Exhibit 1). The double-glazed units were delivered on 26 May 2008 (see Annexure G of Exhibit 1). A tax invoice ("the Moen Invoice") was issued by Moen Glass to Woden Valley Glass Service on 27 May 2008 for the sum of $3,102.77 (Exhibit F).
22. There are two dates which are listed at the bottom of the WVGS Invoice: 4/6/08 and 2/7/08. The Applicant submits that 4/6/08 was the first date at which the double-glazed units were intended to be installed at the Premises (see Exhibits 2 and 3). This contention is supported by the facsimiles which were tendered as Exhibits H and I respectively. In cross-examination Ms Fahrenhorst explained that it is the usual practice of Woden Valley Glass Service to contact customers prior to installation: "Because we still have to reach the people before we load everything to turn up. We do not just load everything and turn up and all of a sudden they’re no longer - they’re not there." Logic compels one to ask why the parties were in discussion of installation particulars, had the Respondents not indicated acceptance of the Offer. The applicants submit that the parties were in fact at the stage of discussing installation particulars and that it was at this time the Respondents raised issue in relation to compliance with the Variations.
COMPLIANCE WITH THE VARIATIONS
23. The subsidiary issue raised by the Respondents in support of their denial of liability for the double-glazed units ordered by the Applicant relates to compliance of the units with the Variations as set out in paragraph 8, above. The Variations will be considered in turn.
DIMENSIONS OF THE FRAMES
24. A preliminary issue which should be addressed is the differential between the dimensions (i.e. height and width) of the units which were ordered by Woden Valley Glass Service from Moen Glass, and those which were eventually installed by a third party. A table of dimensions was tendered by the respondents at Exhibit M.
25. As Mr Gates explained in his examination-in-chief, "when one's fitting double-glazed units or any piece of glass, you've got to allow a certain amount of clearance around the edge. If glass is put into a frame too tight and there's movement in the building, or something of that nature, you can quite easily crack the glass... ". In cross-examination, Mr Gates explained that the clearance is filled with silicon which itself is "part of the strength". Accordingly, the applicant submits that the differentials in dimensions of the windows, in no way constituted a breach of a term of the contract.
SOLAR HEAT GAIN
26. Ms Passos requested high solar heat gain for seven of the double-glazed units, and low solar heat gain for four others. That request was forwarded to Moen Glass by Ms Fahrenhorst in the Purchase Order Form on 16 May 2008. Ms Fahrenhorst claimed in cross-examination that she could not remember particulars of having been told by Moen Glass whether or not levels of solar heat gain could be varied. However, Ms Fahrenhorst did recall being told by Moen Glass that "it does not make much difference at all". When Ms Passos was asked in examination-in-chief about whether this difference was important to her, she responded, "for solar heat gain coefficient, whether a window is high or low was important enough for me to actually ask for them ". This answer is self-fulfilling. The Applicant submits that if the difference was actually important to Ms Passos, she would have been able to state during testimony the reason for her concern.
99. The Respondents repeat paragraphs 41 to 55 above.
100. There is entitlement to costs of procuring the windows ($3,102) and arguably the profit. The evidence was that instalment costs would be in the vicinity of $1,600 (T/s 14). The Applicant did not incur casual labour costs. Certainly, the Applicant had employees on the books, but expenses of those employees would have been incurred in any event.
101. The damages are $7,284 less $1,600 = $5,684. Costs
102. The Respondents seek an order that the Applicant pay the Respondents' costs thrown away associated with drafting and filing the defence and attending at the initial conference. The Applicant proceeded on the basis that there was an agreement on 13 May 2008 in the amount of $8,910. That basis of the claim has been abandoned and the quantum reduced. To the extent that the Respondents were required to meet that claim, draft a defence and attend a conference, the Applicants ought to pay the costs of that wasted expenditure.
103. The Respondents also made an offer to settle which was declined. Details can be provided if it becomes relevant to costs.
Orders sought
104. The Respondents seek the following orders:
1. That the application be dismissed.2. In the event that a contract is determined to have been entered into:
(a). a declaration that the Applicant has breached section 12 of the Fair Trading Act.
(b). An order pursuant to section 50(2) and (7) of the Fair Trading Act declaring the whole of the contract made between the parties to be void, or an order refusing to enforce any or all provision of such contract.
(c). A declaration:i. that the units the subject of the contract were not reasonably fit for the purpose in breach of an implied condition under section 19 of the Sales of Goods Act; and
ii. that the Respondents are entitled to setup the breach of warranty to extinguish the contract price.
3. That the Applicant pay the Respondents' costs thrown away associated with preparing and filing the defence and attending the initial court conference.
Summary of events:
21. From the above the following chronology of material events emerges:
18 Jan 08 Ms Passos phone the Applicant for a quote for retro fitting double glazed windows (statement of Ms Passos).
21 Jan 08 Mr Gates attended the premises of the Respondents to measure windows (ASFC; Applicants statement; Statement of Mr Gates). Mr Gates recommended 14mm windows. At the same time a representative of another glazier also attended to measure the windows (RSFC; statement of Ms Passos).
29 Jan 08 The Applicant supplied the Respondents with a quote for the installation in the sum of $8910 for 14mm windows (applicant filed; ASFC; RSFC; Applicants statement)
21 Apr 08 Ms Passos rang the Applicant. Ms Passos asked whether the Applicant could supply double glazed units of the Venetian blinds kind (statement of Ms Passos).
10 May 08 The Applicant rang Ms Passos and inform her of the cost of the Venetian blind form of windows and it was agreed they were too costly. Ms Passos said she told the Applicant she would call back concerning other options (statement of Ms Passos).
13 May 08 Ms Passos phoned the Applicant and had a lengthy discussion concerning different energy efficient options including 20mm units (RSFC; statement of Ms Passos)
13 May 08 The Applicant contacted Moen Glass and then rang Ms Passos and informed her that Moen only supply aluminium spacers. The Applicant contends that Ms Passos agreed to this (Applicants evidence and submissions). The Respondents deny that any such conversation occurred (evidence of Ms Passos).
13 May 08 Ms Passos emailed the Applicant (ASFC; RSFC; Applicants statement). In this email the Respondents set out their preference for 20mm units “wherever possible” and further relevantly wrote:
“Just to confirm our order in writing…
In terms of installation stage one of the following windows (and we are ready when you are)….
The remaining windows will follow as Malcolm brings home the bacon. Would you please confirm the cost for stage one, as well as the cost for the remaining windows so we can agree to the former and begin saving for the latter.”
16 May 08 The Applicant and Ms Passos spoke on the phone. The Applicant contends an offer was made over the phone to supply the 20mm units for stage one at a cost of $7284.20 and that the Respondent agreed to the cost by saying ”lets do it”. The Respondents indicated her wish to pay a deposit into the Applicant’s bank account (ASFC; Applicant’s statement). The Respondents contend that Ms Passos did not accept the offer and said that any future acceptance would be signified by the payment of a deposit (RSFC; statement of Ms Passos). Ms Passos contends that she only authorised the preparation of a quote (statement of Ms Passos).
16 May 08 The Applicant placed an order with Moen for the units for stage one (application filed; Applicant’s statement). The order form to Moen contained the details set out in paragraph 5 above of these reasons for decision.
16 May 08 The Applicant issued an invoice/delivery docket for stage one to the Respondents which contained the Applicant’s bank details for the Respondents to deposit into. The Tax invoice/delivery docket also contained the specifications of the units ordered from Moen as set out in paragraph 5 above of these reasons for decision.
22 May 08 Ms Passos telephone the Applicant.. Ms Passos requested the specifications for the units proposed to be installed and whether they complied with the specifications in the email of 13 May 2008 (RSFC). Ms Passos contends that in this telephone call she questioned why all the units were 20mm when Mr Gates had advised them against 20mm. Ms Passos asked for a quote per window (statement of Ms Passos).
26 May 08 The Applicant received the units from Moen (ASFC)
26 May 08 Ms Passos contacted Stegbar who advised that the fixed windows could accommodate the 20mm units but the operating windows could not (statement of Ms Passos).
26 May 08 The Applicant contacted the Respondent several times over the next week to arrange installation (ASFC; Applicant’s statement)
28 May 08 The Respondents asked for a third glazier, O’Brien’s Glass to attend to quote (statement of Ms Passos).
29 May 08 Ms Passos spoke with the Applicant by phone and again requested the specification of the windows. The Applicant informed the Ms Passos that the windows were 20mm and had been ordered from Moen. Ms Passos queried whether the 20mm units would fit in the windows concerned and denied that the Applicant had authority to commit them to the purchase (RSFC). Ms Passos further contends that she told the Applicant that she would not have made any decision until she had three quotes. Ms Passos said she informed the Applicant to speak with her husband thereafter (statement of Ms Passos).
30 May 09 O’Brien Glass attended and advised against fitting 20mm (statements of Ms Passos and Mr McAllister).
2 Jun 08 Ms Passos spoke with Moen Glass who advised seeking opinion of Just Rite or ACT Glass and Glazing who had experience with 20mm units (statement of Ms Passos).
2 Jun 08 A representative from Intact Installation attended the premises to provide a quote (statement of Ms Passos).
3 Jun 08 The Applicant faxed Mr McAllister to arrange installation (ASFC; Applicant’s statement). The Applicant alleges that Mr McAllister responded by phone to defer installation to 3 July 2008 (ASFC; Applicant’s statement). The Respondent deny that there had ever been arrangements made for any installation (RSFC). The Respondent contends that Mr McAllister phoned Mr Gates who offered to attend the premises to demonstrate how 20mm windows could be installed (RSFC; statement of Mr McAllister).
4 Jun 08 Mr Gates attended the premises to explained how the 20mm windows could be installed. The Respondents contend Mr McAllister said he was not satisfied (RSFC; statement of Ms Passos). Mr McAllister asserts that he told Mr Gates that he had other advice to the effect that he 20mm units are not suitable for the operating windows (statement of Mr McAllister). Mr Gates contends that his appointment to attend on this day was cancelled and that he never attended (statement of Mr Gates).
14 Jun 08 A representative from Act Glass and Glazing attended and recommended against retro fitting with 20mm. He is said to have advised that the measurements of Mr Gates were inaccurate (statements of Ms Passos and Mr McAllister).
30 Jun 08 The Respondent phoned the Applicant to cancel the installation. The Respondent complained that the units as ordered could not be fitted into the windows of the premises. The Applicant arranged for Mr Gates to attend the premises and demonstrate the installation of the units (Applicant’s statement). The Respondent deny that there had ever been arrangements made for any installation (RSFC). The Respondent contend that in this telephone conversation Ms Passos again said the Respondents were not satisfied that the 20mm windows would fit, that the units had been ordered without the Respondents consent and that they were not going to use the Applicant to carry out the installation (RSFC; statement of Ms Passos).
2 Jul 08 The Respondents sought a quote from Just Rite (statement of Ms Passos). The Respondent eventually accepted this quote and the windows have been installed.
2 Jul 08 The Applicant alleges that the Respondent contacted the Applicant by phone to again defer installation for another 3-4 weeks (ASFC; Applicant’s statement). The Respondent deny that there had ever been arrangements made for any installation (RSFC).
9 Jul 08 Mr Gates attended the Respondents premises and carried out a demonstration. At the end of the demonstration Mr McAllister said “Oh yeah, lets do it” (Statement of Mr Gates). The Respondent deny that any demonstration occurred on this day (RSFC). The Respondent admit a telephone conversation occurred on that date with Mr Gates (statement of Ms Passos).
9 Jul 08 The Applicant contends that following the above demonstration she arranged with the Respondents for the installation on 13 August 2008 (statement of the Applicant). The Respondents deny that any such arrangements were made (statements of Ms Passos and Mr McAllister).
26 Jul 08 Mr McAllister phoned the Applicant and said that the Respondent’s would have no further dealings with the Applicant whereafter there was no further contact between them (RSFC; statement of Mr McAllister)
13 Aug 08 Ms Passos contacted the Applicant and cancelled the appointment to install the units and advised the Applicant that they had arranged a different company to the windows but they would use the windows ordered by the Applicant (Applicant’s statement). The Respondents both deny that any such appointment had ever been made and deny that the phone call of 13 Augsut 2008 occurred.
The Applicant’s case:
22. The Applicant’s case is one in contract. The Applicant asserts that:
(a) After some initial discussions an offer was made by the Applicant to the Respondent by phone on 16 May 2008 to supply the energy efficient 20mm units for stage one at a cost of $7284.20.
(b) In that phone conversation the Respondent, Ms Passos, orally agreed to proceed.
(c) The Applicant issued an invoice to the Respondents and placed the order with Moen Glass on the same day that accorded with the Respondents instructions.
(d) The Applicant had no indication that the Respondents did not intend to proceed with the purchase contract until 29 May 2008 by which time the units from Moen had arrived.
(e) The units are measured to fit the Respondents’ windows and are thus useless for on-sale.
23. The Applicant points to the a number of factor in support of its contentions:
(a) The Respondents had already indicated their assent to the purchase proceeding in their earlier email of 13 May 2008 albeit that email related to the 14mm windows and that there had been some variation in dimensions agreed in the telephone conversation of 16 May 2008.
(b) The Applicant had no notice of any other glaziers quoting for the work
(c) The invoice issued to the Respondents on 16 May 2008 was clearly an invoice/delivery docket with the notation and not a quote but it went unchallenged until 29 May 2008 notwithstanding the telephone conversation between the parties on 22 May 2008.
24. The Applicant argues that the 20mm units complied with the requisite energy efficiency characteristics and were capable of installation in all the Respondents’ windows even if it required some work to do, notwithstanding that 14mm units were more common. The Applicant contends that the contract was possible to perform and the Applicant stood ready to do so. The fact that the Respondents had a change of mind concerning the choice between 14mm and 20mm after the contract had been formed and the units ordered, does not negate the terms of the contract as formed.
25. The Applicant contends that the 20mm units obtain from Moen do comply with the energy saving specifications per the email of 13 May 2008 or to the extent that they did not, the difference was of no practical effect. The Applicant contends that the Respondents agreed to accept aluminium spacers in the windows.
The Respondents’ case:
26. The Respondents case is:
(a) that no contract between the parties ever came into existence because the parties never reach any final agreement;
(b) in the alternative, any contract for the supply of 20mm units was vitiated under the relevant terms of the Fair Trading Act 1992 (ACT) [for misleading and deception conduct by the Applicant; misrepresentation concerning the nature and quality of the units; misdescription of the units; and that the units were not fit for their intended purpose] each premised on the basis that the 20mm units were not able to be fitted (i.e. performance of the contract was impossible):
(c) in the further alternative, if the contract was not void ab initio then the Applicant was guilty of anticipated breach of a fundamental term of the contract in that the Applicant proposed to supply and install units that lacked the energy efficiency characteristic and spacer characteristics;
(d) costs.
27. The Respondents contend that the negotiations that culminated in the email of 13 May 2008 did not lead to any contract. The quote provided by the Applicant in January 2008 related to 14mm units but in the email of 13 May 2008 the Respondents sough advice and quotes for 20mm units with certain energy efficient characteristics (solar energy coefficients). Thus the email of 13 May 2008 was at best an invitation to treat by the Respondents directed to the Applicant in respect of a very different product.
28. The Respondent denies that any oral agreement was reached in the telephone conversation of 16 May 2008 and points to the absence of any other document evidencing a concluded agreement.
29. The Tribunal parenthetically observes that there is another document that evidences a concluded agreement on 16 May 2008, namely the invoice/delivery docket issued to the Respondents on that same day. The Respondents’ contentions do not address the issue of the invoice, as opposed to a quote, on 16 May 2008 and why the Respondents did not take issue with the invoice until some two weeks later after the Respondents had consulted with Stegbar and O’Brien Glass. Ms Passos spoke with the Applicant on 22 May 2008 and on her own evidence did not question the invoice on that occasion, she simply said that she assumed it was only a quote.
30. The Respondents complained that the Applicant ignored their requests for the specifications of the windows ordered. The Tribunal notes parenthetically that these specification were set out on the invoice/delivery docket of 16 May 2008 and on the order form to Moen Glass of the same date.
31. The Respondents point to their dissatisfaction with the proposed 20mm units which was first raised in the telephone conversation of 22 May 2008 but not seriously agitated until the telephone conversation of 29 May 2008.
32. It is abundantly clear to the Tribunal that after 29 May 2008 the Respondents had no wish to proceed with the installation of the 20mm and made this plain to the Applicant.
Summary of the issue between the parties:
33. If the Respondents did not ever agree to proceed with the 20mm unit on 16 May 2008 then the Applicant’s case must fail. If however the Respondents did agree to the 20mm units on 16 May 2008 then a later change of mind by the Respondents on the point is irrelevant to the validity of the contract as formed. If the Respondents agreement to the 20mm unit contract on 16 May 2008 was conditional upon the units having the requisite energy saving characteristics then the contract is still valid as formed, but any declared intent by the Applicant to supply 20mm units without the requisite energy saving characteristics would constituted an anticipated fundamental breach that would permit the Respondents to rescind the contract.
34. Each of the facts necessary to determine the above questions had occurred by 29 May 2008 and so it is not necessary to trace the events beyond that date.
The legislation:
35. The Fair Trading Act 1992 (ACT) relevantly provides as follows:
Section 13:
13(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 14:
14(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services—
(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
(b) falsely represent that services are of a particular standard, quality, value or grade; orSection 19:
A person must not, in trade or commerce, engage in conduct that is liable to mislead the public about the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
36. The Sale of Goods Act 1954 (ACT) provides:
Section 4:
(d) goods are in a deliverable state if they are in a state that the buyer would, under the contract, be bound to take delivery of them.
Section 10:
10(1) The goods that form the subject of a contract of sale may be either existing goods that are owned or possessed by the seller or future goods.
(2) There may be a contract for the sale of goods the acquisition of which by the seller depends on a contingency that may or may not happen.
(3) If, by the contract of sale, the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.
“Future goods” are defined in the Dictionary to the Act:
"future goods" means goods that are to be manufactured or acquired by the seller after the making of the contract of sale.
Section 18:
18(1) If there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description.
Section 19:
19(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.
Section 41:
41(1) If the seller is ready and willing to deliver the goods and requests the buyer to take delivery and the buyer does not, within a reasonable time after the request, take delivery of the goods, the buyer is liable to the seller for any loss occasioned by the buyer's neglect or refusal to take delivery and also for a reasonable charge for the care and custody of the goods.
(2) This section does not affect the rights of the seller if neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
Section 53:
53(1) If the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against the buyer for damages for non-acceptance.
(2) The measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the buyer's breach of contract.
(3) If there is an available market for the goods, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, at the time of the refusal to accept.
Consideration of the evidence:
37. The Tribunal is satisfied on the balance of probabilities that the email of 13 May 2008 from Ms Passos was intended to convey to the Applicant that the Respondents were ready to place an order. However the email indicated a change in position by the Respondents from the 14mm units that where the subject of the quote of 29 January 2008 received from the Applicant, to the 20mm units with certain energy efficient characteristics. To this extent the email of 13 May 2008 did not constitute an acceptance by the Respondents of the offer contained in the quote of 29 January 2008.
38. The parties took this issue up in the oral conversation of 16 May 2008. The Applicant put an offer to Ms Passos to supply the 20mm units for the “stage one” at a price of $7284.20 with aluminium spacers. There is a difference in the evidence as to what then happened but the Tribunal is satisfied that Ms Passos indicated her acceptance of that offer. The basis for the Tribunal coming to that view is as follows:
(a) it is consistent with the declared intent of the Respondents in their prior email of 13 May 2008 to proceed with the purchase:
(b) it is consistent with the issue of an invoice/delivery docket, as opposed to a quote, by the Applicant on that day:
(c) it is consistent with the fact that the Applicant placed an order with Moen Glass for the windows on that day:
(d) it is consistent with the failure of Ms Passos to challenge the nature of the invoice/delivery docket in the telephone conversation of 22 May 2008.
39. The Respondents did challenge the nature of the invoice in the telephone conversation of 29 May 2008 but this was after the Respondents had spoken with Stegbar and O’Brien Glass. The advice received from these companies may explain why the Respondents had a change of mind about continuing with the purchase and installation by the Applicant. But any such change of mind conveyed to the Applicant on 29 May 2008 is too late, the contract had been formed on 16 May 2008 and the units had already been supplied to the Applicant by Moen.
40. The Respondents point to the demonstration by Ms Gates on 4 June 2008 as evidence that no contract could have been formed before that date by which time the Respondents had made clear their wish no to proceed with the purchase. Certainly if no contract had been formed by 29 May 2008 then the Respondents must succeed on their primary argument because nothing after this date satisfies the Tribunal that any concluded agreement was reached after this date. But the demonstration are consistent with the Applicant wish to maintain good public relations. By 4 June 2008 the units had been supplied to the Applicant and the Applicant was trying to arrange installation. The Respondents had undergone a change of mind on or shortly before 29 may 2008 after to talking with other suppliers. The demonstration by Mr gates on 4 June 2008 is capable to being seen as an endeavour by the Applicant to placate the Respondents newly formed concerns.
41. For the above reasons the Tribunal finds as a fact that the parties had reached agreement on 16 May 2008 concerning the supply and installation of the energy efficient 20mm units with aluminium spacers at the agreed price.
42. This then raises the issue of whether there was any conduct on the Applicant’s part that vitiated the contract ab initio under the Fair Trading Act 1992 or Sale of Goods Act 1952 or at common law. The Respondents contend that it not possible to fit the 20mm into the operative windows as opposed to the fixed windows, hence:
(a) the performance of contract is impossible from the beginning: and
(b) the Applicant has mislead the Respondents in asserting that it was possible to install the 20mm units in breach of section 13 and 19 Fair Trading Act 1992 and that the 20mm units did were not fit for their intended purposes within the meaning of section 19 Sale of Goods Act 1952.
The Respondents conceded that it was possible to fit the 20mm windows into the fixed windows.
43. The Tribunal is satisfied on the evidence of Mr Gates that it was possible to fit the 20mm units in each of the windows. Any addition work required to achieve this result (eg routing of the window sashes) was a cost to be borne by the Applicants as the installation was included in the price. The Respondents appear to have changed their minds on ascetic grounds after hearing from Stegbar and O’Brien Glass.
44. This leaves the remaining ground of the defence, namely that had the Applicant installed the units that they had purchased from Moen then the Applicant would have been in breach of contract in so far as those units did not have the requisite energy characteristics.
45. The Tribunal is satisfied that the Respondents had made known and had contracted for units with the energy coefficient characteristics in her email of 13 May 2008. The energy efficiency requirements set out in the email of 13 May 2008 were:
(a)Double glazing argon filled with clear glass on one side
(b)20mm
(c)Non-conducting spacers (not aluminium)
(d)Low U value high solar heat gain coefficient for certain specified windows
(e)Low U value and low solar heat gain efficient for other specified windows
46. The document produced under summons from Moen Glass contain the order form from the Applicant dated 16 May 2008. It shows an order for:
(a)Double glazed argon filled with 4mm clear glass on one side
(b)20mm
(c)Low E with high solar heat gain for certain specified windows
(d)Low U with low solar heat gain on other specified windows
47. These specifications are the same as those on the tax invoice/delivery docket sent to the Respondents on 16 May 2008.
48. There appears to be a correspondence between the characteristics the Respondents asked for in their email of 13 May 2008 and the order placed on their behalf on 16 May 2008.
49. The conclusion that the Tribunal derives from the above is that:
(a)the parties had in fact entered a contract for the supply of the energy efficient 20mm units on 16 May 2008
(b)the terms of the contract were embodied in writing in the tax invoice/delivery docket of 16 May 2008
(c)the Applicant placed an order and obtained delivery of goods corresponding to the contract (with the exception of the aluminium spacers which the Respondents agreed would not be supplied on 13 May 2008)
(d)it was possible to install the units even if it would have involved considerable effort. That effort by the Applicant to carry out the installation was part of the contract price and so was no burden to the Respondents
(e)on or shortly before 29 May 2008 the Respondents changed their minds concerning the 20mm units on ascetic grounds, but this was after the contract had been formed
(f)the Applicant stood ready and willing to perform its part of the contract.
50. The Respondents are therefore in breach of contract.
51. The Applicant claims as its quantum of damages the full cost of the purchase of the units from Moen being $7728.48. The Applicant justifies this sum by the assertion that the units were measured to fit the Respondents windows and are therefore useless for all other purposes. Beyond the Applicant’s bare assertion there is no evidence to this effect.
52. Section 53(3) Sale of Goods Act 1952 deals with this issue:
(3) If there is an available market for the goods, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, at the time of the refusal to accept.
53. It is unknown to the Tribunal whether there is a market for second hand window units. It is further unknown whether the material embodied in the units purchased by the Applicant can be cannibalised for other sales.
54. The Tribunal proposes to relist the matter for evidence on the issue of the quantum of damages and arguments on costs.
………………………………………
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: XD 185 of 2009
APPLICANT: KAETHE MONIKA FAHRENHORST T/AS WODEN
VALLEY GLASS SERVICE
RESPONDENT: HAIDA PASSOS & MALCOLM MCALLISTER
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT: MR BARNET
RESPONDENT: MR FLINT
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A Anforth, Senior Member
DATE/S OF HEARING: 23 July 2009 PLACE: CANBERRA
DATE/S OF DECISION: 28 September 2009 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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