Kaufline v Shaw & Anor (Civil Dispute)
[2024] ACAT 53
•26 June 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KAUFLINE v SHAW & ANOR (Civil Dispute) [2024] ACAT 53
XD 1345/2023
Catchwords: CIVIL DISPUTE – where applicant contracted respondent to provide painting services – amendment of contract – claims for compensation – breach of contract - consumer guarantees under sections 60, 61 and 62 of the Australian Consumer Law –– contract terminated – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 20, 60
Australian Consumer Law ss 60, 61, 62, 267
Competition and Consumer Act 2011 Sch 2
Fair Trading (Australian Consumer Law) Act 1992 s 11
List of Texts/Papers
cited:Seddon and Bigwood, Cheshire & Fifoot Law of Contract (LexisNexis, 12th Australian Edn, 2022)
Tribunal:Senior Member J Francis
Date of Orders: 26 June 2024
Date of Reasons for Decision: 6 August 2024
Date of Publication: 13 August 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1345/2024
BETWEEN:
GLENYS FREYA KAUFLINE
Applicant
AND:
DAVID SHAW
First Respondent
JOSEPH O’CALLAGHAN
Second Respondent
TRIBUNAL:Senior Member J Francis
DATE:26 June 2024
ORDER
The Tribunal orders that:
The application is dismissed.
………………Signed……………..
Senior Member J Francis
REASONS FOR DECISION
Introduction
The Tribunal handed down the decision on 26 June 2024. The applicant requested a statement of reasons on 29 June 2024. The Tribunal provides these reasons under section 60 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
From 3 July 2023 to 31 August 2023, the first respondent (with some assistance from the second respondent) provided internal painting services to the applicant at her home in Forrest, ACT (the property). By her amended application, the applicant seeks compensation from the two respondents for $25,000, the ACAT filing fee of $612 and interest, for providing incomplete and deficient painting services and for alleged damage to some items and for loss of others.
First, the applicant seeks an order that the respondents are jointly and severally liable to pay to her amounts for damage which total the sum of $24,853.30.
I have understood that claim to first be for breach of contract to provide those painting services for the period 3 July to 31 August 2023, that is for failure to complete the painting services with reasonable care and skill. Briefly, the alleged failure relates to non-completion of various ceilings, poor workmanship on the woodwork and paint stains and “runs” on other fixtures.
In the alternative, I have understood that the applicant claims damages under section 267(4) of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2011) for reasonably foreseeable loss or damage suffered because the respondents failed to comply with the consumer guarantees set out in:
(a)Section 60 of the Australian Consumer Law – that the services would be rendered with due care and skill;
(b)Section 61 of the Australian Consumer Law – that the services would be fit for the purpose of what I understood to be a freshly and quality painted home in the areas for which the applicant contracted the first respondent; and
(c)Section 62 of the Australian Consumer Law – to supply the painting services within a reasonable time.
The damages claimed for breach of contract and failure to comply with the section 60, 61 and 62 consumer guarantees include refunds for monies paid for the services and for unused paint.
I note that the Fair Trading (Australian Consumer Law) Act 1992 applies the Australian Consumer Law in the ACT. Section 11 of this Act applies the Australian Consumer Law as if it were an ACT law called the Australian Consumer Law (ACT) to people carrying on business in the Territory, to bodies incorporated or registered in the Territory, and to persons resident in or otherwise associated with the Territory.
Second, the applicant’s claim also includes compensation for damage the applicant alleges that the respondents caused to the “Atrium floorboard” and to the “Atrium antique”, as well as breaking the (ensuite) toilet pipe and leaving a paint stain on the applicant’s car. The applicant also claims for replacement of a set of car keys and a garage remote.
I have understood this aspect of the applicant’s claim to be in negligence, that the first and second respondents failed to exercise care they were bound to exercise when in the applicant’s home. Further, that in so doing the first and second respondents caused damage to the Atrium floorboard and antique and to the ensuite toilet pipe and caused the car key and garage remote to be lost. The total amount of compensation claimed for these actions is $1,595.
For clarity, the applicant confirmed at the hearing on 4 June 2024 that she abandoned the claim for replacement of the “Green Jigsaw silk top” for the amount of $199.
The applicant has, in accordance with subsection 20(2) of the ACAT Act, abandoned the excess by limiting their claim to $25,000.
For the reasons that follow, the applicant’s claim for compensation is refused.
Background
The applicant commenced proceedings by way of civil dispute application filed on 17 November 2023 and, on 10 May 2024, an amendment to that application with relevant submissions, timeline, background and 49 photos (on a USB stick). The first respondent filed a response on 2 January 2024, and on 14 May 2024, an amended response and a timeline along with 68 photos (also on a USB stick). The second respondent filed a response on 2 February 2024 and an amended response on 13 May 2024. The first respondent responded to the two subpoenas on 28 May 2024 and 4 June 2024, the hearing was on 4 June 2024.
The applicant’s claim
The majority of the applicant’s claim is made in reliance on a contract with the first respondent entered into in March 2023 and amended in July 2023.
Matters not in dispute
The existence of the contract as amended is not in dispute. There was also no dispute that the contract included a requirement that the applicant would complete the painting services with reasonable care and skill.
There is no dispute, as evidenced by the first respondent’s quote signed by the applicant and witnessed by the second respondent, that the contract included a requirement to paint the ceilings in various rooms for the sum of $5,720 inclusive.
There is also no dispute that the amended (or new) contract included a requirement to paint the kitchen for $7,000 and “woodwork” – skirting, frames, doors – in the amount of $9,960.
Accordingly, there is agreement that the amended contract was (at least) for $22,680.
There is agreement that the payments for the services were made in cash and that the first respondent was paid (at least) $13,270 for those services.
Finally, there is agreement that some ceilings were not painted at all or finished, that there were some examples of paint on the woodwork or running onto external paintwork and paint on the carpet and that the kitchen cupboard doors, painted off site, were not affixed to the cupboards.
Matters in dispute
There are five matters in dispute between the applicant and the first respondent. The applicant says that:
(a)The contract included a requirement to paint five skylights, which were not done.
(b)The amended contract was limited to a requirement to paint the kitchen for $7,000 and woodwork in the amount of $9,960. That is the applicant says that the amended contract was for $22,680.
(c)The contract was terminated by the first respondent without completing the painting of the kitchen with reasonable care and skill, painting of the relevant ceilings, fixing any deficiencies including for the woodwork as well as related to “stains” and “over runs” and affixing the kitchen cupboard doors (having been painted offsite).
(d)The applicant paid the first respondent $4,500, in addition to the agreed payment of $13,720.
(e)The first and/or second respondent caused the damage to the Atrium floorboard and Atrium antique, left a paint stain on the applicant’s car, broke the ensuite toilet pipe and lost the car keys and garage remote.
In reply, the first respondent:
(a)denies that the contract included a requirement to paint five skylights;
(b)says that the amended contract included an additional requirement to paint the walls for an additional sum of $9,939, that is for a final cost of $32,805;
(c)says that the contract was terminated by consent before he had an opportunity to remedy the alleged failures;
(d)agrees that he received, $4,000 on 3 July 2023, $5,000 on 7 July, $1,720 on 14 July and $3,000, by the applicant’s brother, around 26 July 2023, to a total of $13,720, but denies that he was paid another $4,500; and
(e)denies that he caused damage to the Atrium floorboard and Atrium antique, that he left a paint stain on the applicant’s car, that he was the cause of the broken ensuite toilet pipe or that he lost the car keys and garage remote.
The second respondent denies that he is liable to the applicant in relation to any services that are not related to the painting of walls (the applicant makes no claim in relation to the painting of walls). The second respondent also denies, that to the extent that it is alleged he caused it, liability to the applicant for damage to the Atrium floorboard and Atrium antique, a paint stain on the applicant’s car, damage to the ensuite toilet pipe or lost the car keys and garage remote.
The hearing
At the hearing, the applicant, Ms Glenys Kaufline, made submissions and gave evidence. The first and second respondents, Messrs David Shaw and Joseph (Joe) O’Callaghan, also gave evidence and made submissions. Separately, as earlier noted, each had filed materials in support of their case.
No party called any other witnesses or expert reports in support.
The applicant’s submissions were often inconsistent with evidence contemporaneous with the relevant event. There is, for example, no evidence to support the applicant’s submission that she advised the first and second respondents on 9 July 2023, or indeed on 11 July 2023, that she could not “accommodate 2 painters” and that she requested a reschedule of works from the first respondent. I note, however, that there is a relevant text from the applicant to the first respondent on 25 July 2023 and another to both respondents on 26 July 2023, which does make the relevant statement and request.
In another example, the applicant’s submission that the first respondent unilaterally rescheduled the works to commence 28 August 2023 is inconsistent with a 25 July 2023 text from the applicant to the first respondent asking “possible for you to do other work till 11 August???” and a follow up 9 August 2023 text message from the applicant to the first respondent confirming that the applicant had the first respondent “booked from 28 August” and suggesting that the first respondent stay on his present job to ensure his arrival on 28 August. It is also inconsistent with the applicant’s text of 7:34 am on Friday 25 August 2023 to the first respondent “if you need 2 additional days on your current job to finish off – please take them. Which would mean I’d see you not later than Wednesday.” and finishing with an acknowledgement of the delay “being mine”. I note that the date of that Wednesday was 30 August 2023 and that the first respondent attended the property on that day.
Wherever possible, therefore, I have relied on contemporaneous evidence, primarily of text messages, to make findings of fact (on the balance of probabilities). For reasons I will explain, the applicant’s text messages around the time of termination of the contract on 31 August 2023 have required separate consideration.
I was impressed that the first and second respondents took their role to assist the Tribunal to exercise its jurisdiction taking account of all relevant evidence seriously.
Findings of fact
It is trite to observe that, as civil claims, the onus is on the applicant to prove their cases on the balance of probabilities. Findings of fact are made on that civil standard of proof.
I make the following findings of fact on the balance of probabilities.
Contract
Consistent with the parties’ agreement, in March 2023, the applicant and the first respondent entered a contract for the respondent to paint the ceilings of various rooms for the sum of $5,720. The undated itemised list of the relevant rooms in the first respondent’s handwriting and signed by the applicant and the second respondent is evidence supporting the creation and the terms of the contract. I was persuaded, having reference to the text message from the applicant to the first respondent on 6 March 2023 inquiring about matters she assumed was not included in the price and by the second respondent’s clear account at the hearing, that it was finalised in March 2023.
Because there is no mention of the five skylights (including their location in the property) in the first respondent’s quote, the March 2023 contract does not include an obligation to paint those skylights. Further, by their dimension’s, skylights of the kind the applicant says are included in the contract are noticeably separate to, as well as generally separately referred to, the ceiling. There is no other evidence supporting their inclusion in the March 2023 contract and there is also no evidence supporting a conclusion that the obligation to paint the skylights was included in the amendment to the contract further addressed below.
Sometime between 3 and 5 July 2023, after commencement of the services in fulfilment of the March 2023 contract, the contract was varied to at least require the first respondent to provide painting services for woodwork, including skirting, frames and doors along with the kitchen cupboards, walk in pantry shelves and walls and benchtops, for the amount of $9,960, that is for a sum of $22,680.
(a)I am unable to reach a view as to whether the parties agreed that the amended contract also included painting the walls for the additional sum of $9,939. However, as I will explain, it is not necessary to reach a conclusion on whether the walls were included within the scope of works.
No express timeframe and interruptions accommodated
To the extent that the applicant may have been understood to suggest that there was an express timeframe within which the services were to be given, I find that there was no such agreed timeframe. There is no contemporaneous evidence supporting the applicant’s assertion that it was agreed that the first respondent would complete the works by her return from Byron Bay (from 15 July 2023 to 5 August 2023). There is no evidence of whether the applicant’s 26 July 2023 text invitation to the first respondent of the “need to get firm agreed schedule please.” resulted in an agreement.
The first respondent accommodated a number of requests from the applicant to interrupt the provision of services, including a request as late as 9 August 2023:
(a)By text on or about 14 July 2023, the applicant advised the second respondent, “Apologies for late notice but only now received pollie message. We don’t have next 2 weeks pollie free. Need to shunt Dave into front bedrooms to finish woodwork and nothing more – so as to have house fume free. Will call you tomorrow Joe !!. Gx”.
(i) I find that the applicant’s response to the first respondent’s text of 19 July 2023, attaching nine photos including of the hallway with rolled up mat “Absolute Angel Dave thank you !!!!!” supports the conclusion that the expectation was that the first respondent would not continue to provide services whilst the politicians were staying at the property.
(ii) I note that the two weeks to which that text, on or about 14 July 2023, of the applicant refers would take the interruption to 2 August 2023 which was the middle of the first week of the Spring sittings of parliament in that year, the timetable for which was included with the applicant’s materials.
(b)The applicant asked the first respondent by text at around 3:20 pm on 25 July 2023, “Possible for you to do other work till 11 August??? There is a full week run without pollies then.” This is consistent with the parliamentary sitting table.
(c)Consistent with this request, the applicant texted the first respondent at 8:16 pm on 9 August 2023 confirming that the politicians left on the following Friday and returned on 3 September 2023 for three weeks:
I have you booked from 28 August. Rather than you coming today would you stay on the job you’re working on to ensure your 28 august (sic) arrival here please. If you would, please schedule the oil for the kitchen from 11 august onwards.
(i) The first respondent confirmed by text at 3:42 pm on 10 August 2023 that he was on his way to the property and at 2:01 pm on 11 August 2023 the applicant asked the first respondent to park on the verge.
(ii) By text at 7:34 am on 25 August 2023, the applicant advised that –
if you need 2 additional days on your current job to finish off- please take them. Which would mean I’d see you no later than Wednesday. I again acknowledge that despite the f* and delay up at mine – you have done all in your power to remedy that. For thot (sic) thank you. Let me know where you’re at. Glen.
(d)By text at 9:00 pm on 26 August 2023, the applicant advised that she awaited the first respondent’s written confirmation that he would, as he agreed, attend the property during the “full work period Monday 28 August 2023 – 8 September inc.” to finalise the contract which commenced 3 June 2023 (8 weeks ago).
No failure to deliver in accordance with agreed timeframe
For completion I note that, despite evidence of the applicant’s increasing frustration during August 2023 of the time that the works were taking, I am not persuaded that the first respondent failed to deliver in accordance with what was agreed with the applicant. In particular, the applicant’s invitation to the first respondent to take to 30 August 2023, to be at the property undermines any such suggestion.
Applicant recorded her appreciation of the first respondent's services
The applicant recorded her appreciation of the first respondent on several occasions:
(a)By text message at 9:47 pm on 14 August 2023 – “Thank you for fantastic job you’re doing”.
(b)By text message at 12:52 pm on 14 August 2023 – “Dave kitchen cupboard is beautiful! Thank you for choosing it !! G”.
(c)By text message at 7:11 pm on 23 August 2023 – “Dave my apologies, I was less than pleasant this afternoon. I’m challenged by the upheaval. And I do know you’re doing your utmost to alleviate that. Sorry glen.”
(d)The applicant’s letter of demand dated 28 August 2023 to the first respondent said that she acknowledged “the very high standard of your work, and the care you take while on the job.”
No finding about the disputed additional $4,500 payment
As earlier noted, I am unable to make a finding about whether the applicant paid the first respondent $4,500 in addition to the $13,720 he agrees that he received.
(a)The first respondent agreed that he initialled the applicant’s worksheet (at page 31 of the applicant’s amended background) at each of $5,720, noted as finalised paid on 7 July 2023, $500, paid to Joe on 6 July 2023, and $2,000, paid on 7 July 2023, and $3,000, paid on 14 July 2023. I have found the calculations and initialling thereof difficult to understand.
(b)Contrary to the applicant’s recollection, the first respondent did not recall initialling, for the date 10 August 2023, the applicant’s work sheet at page 34 of the applicant’s amended background. I note that it is difficult to identify to what the initial was given and that it is recorded on a sheet separate to the worksheet on which the other initials are recorded.
(c)The applicant’s bundle of receipts produced at the hearing on which she had accounted for payments was not sufficient to clarify for me whether the additional $4,500 was paid to the first respondent.
Contract was terminated with consent
Although there are some differences in the explanation of what took place at the property on 31 August 2023, including whether the applicant assaulted the first respondent (which the applicant denies) and about which I make no findings, the contract terminated by consent of the applicant and the first respondent on that day.
(a)I am persuaded by the first respondent’s submission and evidence at the hearing that the applicant had repeatedly asked him to get out of the house. I find that, by those requests, the applicant demonstrated an intention to bring all obligations to an end. It is not irrelevant to this finding of evidence of tensions the day before. The applicant had asked the first respondent’s wife to leave the property and, as I will come to, the applicant had, by text message, accused the first respondent of departing “in my absence, without notice” for which the first respondent, by return text, reminded the applicant she had agreed to his departure by telephone discussion. The applicant’s apparent concession at the hearing that her voice may have been raised also supports the view that the applicant’s conduct demonstrated an intention to bring the contract to an end. Her concession that she may have said that she would see the first respondent in court is equivocal, however.
(b)Further, the first respondent’s submission and evidence at the hearing including that, at the conclusion of the meeting at the property on 31 August 2023, he sought to retrieve his plastic drop sheets, evidences the first respondent’s intention to bring his obligations to an end.
(c)Finally, various text messages on 31 August 2023 and 1 September 2023, between the applicant and the first respondent in which the former requested the return of kitchen cupboard doors and asked what tools the first respondent wanted returned and the latter identified the plank was to be left outside are not inconsistent with my conclusion that both the applicant and the first respondent intended to bring the contract to an end.
(d)To the extent that the applicant seeks, with reference to the circumstances on 30 August 2023, to support her submission that it was the first respondent that terminated the contract by abandonment, I confirm that I prefer the first respondent’s account of events of the termination on 31 August 2023. That is, that he left the property with the applicant’s agreement after it was clear to both parties that it was no longer feasible for him to complete the job.
(i) The applicant appeared, by text message on the evening of 30 August 2023, to set the stage for her version of termination – by the first respondent’s abandonment. The first respondent’s response to the applicant’s message “I am devastated at your departure … in my absence… without notice” belies the applicant’s allegation of abandonment. The first respondent had called the applicant at 12:58 pm and texted at 5:59 pm on that day:
I called you when I left and discussed whether or not to lock the house up and you told me don’t worry about it your [sic] only 10 minutes away …
(ii) The subsequent messages in the afternoon and evening of 30 August 2023 and early on the morning of 31 August 2023, in which the applicant demands the first respondent not only bring various receipts and records but all paint that the first respondent has purchased, also suggests an anticipated termination. It begs the question of why the applicant would require the return of the paint? Absent any evidence of the first respondent’s intentions of termination, if there is any anticipation it appears to be that of the applicant. It was convenient that another person was able to commence painting on 1 September 2023.
Consideration of claims
Claim for compensation from only the second respondent
painting services
It is convenient to first deal with the claim against the second respondent. An undated text message from the applicant to the first respondent confirmed that she had contracted with him to assist with painting the walls. The applicant also submits that she terminated the second respondent’s services on 9 July 2023, although the second respondent says that was 28 August 2023. The parties agree that the applicant paid the second respondent $500 for his work in painting walls.
Nevertheless, the applicant makes no claim for compensation related to painting the walls.
Further, any painting that the second respondent carried out associated with the applicant’s claims for compensation were as the first respondent’s subcontractor, under his instruction. For these services, the first respondent, as the principal with whom the applicant contracted, is responsible for any claims for compensation. The second respondent did not participate in making the contract (other than as a witness).[1] Similarly, the section 60 consumer guarantee that services will be rendered with due care and skill applies to the person supplying those services, in this case the first respondent. This also applies to the consumer guarantees as to fitness for purpose and the reasonable time within which services are be provided.
[1] See, for example, the discussion on privity of contract at [7.12] and ff in Seddon and Bigwood, Cheshire & Fifoot Law of Contract (LexisNexis, 12th Australian Edn, 2022)
If the applicant might be understood to separately assert that the second respondent, when carrying out painting services, breached his duty of care to take reasonable steps to avoid harm being caused to the applicant’s home, the applicant has not provided sufficient evidence to support such a finding. The photos submitted by the applicant, including the one named Joe’s undercoating bed 3, do not fill the void.
Accordingly, I dismiss the applicant’s claims against the second respondent for any claims for compensation associated with the balance of the painting services.
I therefore turn to address the claims against the first respondent related to painting services. I consider the balance of the claims for compensation by the applicant as claims for compensation against the first respondent for painting services that have, in breach of contract and failure to comply with the section 60 of the Australian Consumer Law consumer guarantee, not been provided with reasonable care and skill. I also consider the claim for compensation for failure to comply with the consumer guarantees that the painting services were (briefly) fit for purpose and were not supplied within a reasonable time.
Claims for compensation from only the first respondent
For the painting services for which he contracted is not made out either as a breach of contract or as a breach of section 60 of the Australian Consumer Law
For clarity as stated earlier, I note that I have dismissed the applicant’s claim for compensation for five unpainted skylights on the basis of my finding that they were not included in the contract for services (either as originally entered into or as amended).
There are two classes of the balance of painting services in relation to which the applicant says that the first respondent breached the contract and failed to comply with the consumer guarantee in section 60 of the Australian Consumer Law.
The first class of claims is for compensation for poor workmanship of the painting services:
| Replace 2 paint-stained mesh screens |
| Replace painted over brass fittings Bedroom 3 |
| Remove paint from Travertine tiles Remove paint from Bedroom 1 cedar woodwork Repaint external woodwork – int paint run throughs |
| Repaint external side entry door paint runs |
| Bedroom 3 (Steam clean/plaster removal) |
| Bedroom 2 (replace paint stained carpet) |
| Small job fee (Carpet World) |
| Kitchen damages (paint removal gas cooktop/racks refrigerator, sink) |
| Repaint kitchen Refund failed kitchen Refund sand/reseal, repaint doors, trims and windows |
I note the photographs submitted by the applicant, which were named “poor blotchy coverage”, “poor cutting in coverage”, “poor preparation”, “undercoating”, “uneven insufficient coverage”, “unsatisfactory undercoating” and “unsatisfactory works” that the applicant said supported her case that the first respondent failed to provide the services, in accordance with the list in the previous paragraph, with reasonable care and skill. The photos were not of great quality. Their labels reflect assertions of failure. The applicant’s explanations at the hearing to some extent clarified what was asserted.
And the applicant’s statements acknowledging the very high standard of the first respondent’s work as late as 28 August 2023, undermines her submission, at least to 28 August 2023, of faulty workmanship of the kind asserted by the photos (saying nothing as to overruns and stains). Apart from the one text exchange on 22 August 2023, in which the first respondent agreed that he “would have little fixes on the kitchen etc”, the evidence does not support a conclusion that there was, on 31 August 2023, a breach of contract for failure to provide the painting services with reasonable care and skill.
Nevertheless, I accept that there was agreement that the first respondent, had the contract continued, would have rectified deficiencies including by removal of stains from screens, brass fittings and the carpet and by fixing various stains and over-runs.
However, I find that the contract was terminated before the first respondent could, as he was entitled to do, remedy any identified deficiencies. Indeed, as mentioned earlier, the applicant was appraised of the first respondent’s intention to rectify any deficiencies by his response to her text of 9:45 am on 22 August 2023 asking what could be done about two kitchen cupboard doors reflecting differently in the light that “like I said I will have little fix’s (sic) on the kitchen ect (sic). Thank you g talk soon”. The applicant acknowledged the first respondent’s reply: “Excellent Dave thank you”. I note that the second respondent submitted that it is common practice for rectifications to be made at the end of the contract.
The first respondent was, from termination on 31 August 2023, released from all further performance of the contract.
For the same reasons, I find that the first respondent has not failed to comply with the duty to comply with the section 60 consumer guarantee, that is, I am not persuaded that the first respondent failed to render the painting services with due care and skill.
Even if I am wrong, the applicant has not provided evidence sufficient to discharge the onus to satisfy me on the balance of probabilities that she did not receive the equivalent of either $13,720 of painting services, for which the first respondent says that he was paid, or $18,220, of painting services for which the applicant says that she paid. The first respondent’s receipts for paint purchased and which were returnable on the subpoena do not affect this conclusion.
There was, for example, no verifiable evidence of the value of work required to be done to complete the works. The replacement painter was not called to give evidence. The photos submitted by the applicant and variously labelled along with an explanation at the hearing as to their import, as earlier mentioned, fall short of being such evidence.
Accordingly, I dismiss the applicant’s claim for compensation for this first class of alleged failures, that is for poor workmanship of the painting services.
The second class of services are those that the applicant alleges that the first respondent failed to provide at all and include untouched or incomplete ceilings and reassemble kitchen and pantry.
The same analysis and result apply to these services as for services the applicant alleges should have been remedied. The first respondent was, from termination, released from all further performance of the contract. Accordingly, I dismiss the applicant’s claim for compensation for this second class of alleged failures.
Breach of section 61 of the Australian Consumer Law is not made out
My analysis supporting my conclusion that there was not a breach of contract for failure to provide the painting services with due care and skill and that the section 60 consumer guarantee was not breached also supports my conclusion about the application of section 61 of the Australian Consumer Law. The applicant has not persuaded me to find, on the balance of probabilities, that the painting services were not of “such a nature, and quality, state or condition, that they might reasonably be expected to achieve” the result of the expected purpose or result: a freshly and quality painted home in the areas for which the applicant contracted the first respondent.
Breach of section 62 of the Australian Consumer Law is not made out
I turn to consider the applicant’s claim for breach of section 62 of the Australian Consumer Law. Because I have found that there was no agreed time within which the painting services would be provided, section 62 provides a guarantee that the painting services would be supplied within a reasonable time. What is reasonable is a function of the context.
My findings, as follows, persuade me that the applicant has failed to demonstrate that the first respondent did not comply with the section 62 consumer guarantee to supply services within a reasonable time. The time was the subject of agreement between the applicant and the first respondent.
(a)First, as I have found, the first respondent accommodated a number of requests from the applicant to interrupt the provision of services, including a request that was made as late as 9 August; and
(b)Second, after several texts in which the applicant noted 28 August 2023 as the date on which the first respondent was to resume painting, the applicant invited the first respondent to take to 30 August 2023 to be at the property. The first respondent accepted the invitation.
Damage for a broken toilet pipe is not made out
The applicant’s claim for compensation from the first respondent for a broken ensuite toilet pipe is inconsistent with her acknowledgment in her text message to the second respondent, sometime before 5 August 2023, that the toilet needed a new part. She advised:
Loo (in my ensuite) needs new part. Was hoping it would last till my return. Which is Saturday. Will order and get wayne to fit- thank you for the alert.
At the hearing, the applicant, when questioned by the Tribunal as to whether she maintained her claim for the broken toilet, said that she did and explained that the faulty part was different to the one to which the text refers. I find, however, the acknowledgement in the aforementioned text casts doubt that the broken pipe was attributable to the action of the first respondent. I am not satisfied that, on the balance of probabilities, the first respondent caused it.
Accordingly, I dismiss the applicant’s claim against the first respondent for compensation for the broken ensuite toilet pipe. To the extent that the claim is also made against the second respondent, I also dismiss the claim against the second respondent.
Claims for compensation from the first and second respondents
Damage to the Atrium floorboard and Atrium antique is not made out
I now turn to the claims of damage to the Atrium floorboard and the Atrium antique and the loss of the car keys and the garage remote. It is not in doubt that the first and second respondent, when carrying out work at the property, had a duty to take reasonable steps not to cause reasonably foreseeable harm to the property. The issue raised by the first respondents is whether, accepting that there was damage or loss, there is sufficient evidence to find that, on the balance of probabilities, the respondents caused the harm. If there is insufficient evidence of causation there is no need to inquire about whether there was a breach of the standard of care.
The Tribunal was invited by the applicant to find that because the dishwasher was left “in the entry” (removed from the kitchen to allow its painting) that the damage to the Atrium floorboard and Atrium antique was caused by the first (and perhaps second) respondent when moving it out of the kitchen. The applicant received oral advice from a flooring specialist that the damage was recent. The applicant was not present when the dishwasher was moved.
There is no evidence that the applicant raised any concern about any damage to the Atrium floorboard or Atrium antique until commencement of the proceedings.
The first and second respondents deny causing the damage.
There is insufficient evidence for the Tribunal to be satisfied, on the balance of probabilities, that the respondents caused damage to the Atrium floorboard and to the Atrium antique. A mere submission of a photo of the applicant’s assertion, alleged oral advice from a floorboarding expert surmising that the damage was recent and the applicant’s request to deduce the damage from relocation of the dishwasher, is insufficient evidence for the Tribunal to be satisfied, on the balance of probabilities, that the respondents caused damage to the Atrium floorboard and to the Atrium antique. I note that the first and second respondents also deny causing the damage.
Accordingly, I dismiss the applicant’s claims against the first and second respondents for compensation for damage caused to the Atrium floorboard and antique.
Paint stain left on her car is not made out
The applicant also invited the Tribunal, without providing any evidence other than a photo of the paint stain on her car, to find that the first respondent left that paint stain. The first respondent denied he caused the paint stain. The Tribunal notes that Painters without Borders commenced work at the property on or about 1 September 2023. In the absence of any evidence beyond the photo of the stain on the car, the Tribunal is not satisfied that the first respondent caused the paint stain.
Accordingly, I dismiss the applicant’s claims against the first and second respondents for compensation for a paint stain to the applicant’s car.
Replacement of the car keys and the garage remote is not made out
Finally, the applicant invited the Tribunal to find that the first respondent lost the car keys and the garage remote during the period when, as I understood it, the painting services were being carried out. The time at which the loss is said to have occurred is not clear.
I note that the first respondent agreed, on the applicant’s request (at that time in Byron Bay), that he had moved the car to the garage (from the driveway). However, the first respondent denied that he lost the items, explaining that the keys were usually kept by the applicant in a wooden bowl and the remote was kept on the garage floorboard. He also said, after putting the car in the garage, that he returned the keys and remote to those places. He had no other reason or cause to use the items. Further, the applicant had returned from Byron Bay quite some time before the keys and remote were reported as lost.
The Tribunal notes that the example of the applicant’s temporary misplacement of her laptop whilst travelling to her holiday to Byron Bay, including where she requested the first respondent to check for it at the property, illustrates that there is often a range of possibilities before successful location of a missing item. The laptop was subsequently located at the airport.
There is insufficient evidence for the Tribunal to be satisfied, on the balance of probabilities, that the first respondent lost the car keys and the garage remote.
Accordingly, I dismiss the applicant’s claims against the first respondent for compensation to replace the lost car keys and garage remote. To the extent that the claim is also made against the second respondent, I also dismiss the claim against the second respondent.
Accordingly, I make the following order:
(a)The application is dismissed.
………………………………..
Senior Member J Francis
| Date(s) of hearing: | 4 June 2024 | |
| Applicant: | In person | |
| Respondents: | In person | |
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