Mirkovic v Beta Memorials Pty Ltd
[2021] QCAT 160
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mirkovic v Beta Memorials Pty Ltd [2021] QCAT 160
PARTIES: DRAGAN MIRKOVIC (applicant)
v
BETA MEMORIALS PTY LTD (respondent)
APPLICATION NO/S:
MCDO00025-19
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
21 April 2021
HEARING DATE:
3 August 2020
HEARD AT:
Southport
DECISION OF:
Adjudicator Mewing
ORDERS:
1. The application for miscellaneous matters filed by Dragan Mirkovic on 31 July 2020 is refused.
2. Beta Memorials Pty Ltd must pay $4,120.50 to Dragan Mirkovic (being return of the deposit for a memorial and the QCAT Filing Fee) within 28 days if it has not already done so prior to receiving these Orders.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether headstone memorial of acceptable quality – whether failure to comply with consumer guarantees a major failure – whether goods unsafe – whether consumer caused the goods not to be of acceptable quality – whether consumer entitled to refund
Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law s 3, s 54, s 259, s 260 Beta Memorials Pty Ltd v Dragan Mirkovic [2020] QCATA 82
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Background to this hearing
On 15 January 2019, Dragan Mirkovic filed an Application for Minor Civil Dispute – Consumer Dispute against Beta Memorials Pty Ltd (‘Beta Memorials’), seeking an order that $4,000.00 be refunded to him.
The matter was heard by the tribunal at first instance on 23 April 2019 and a decision made that Beta Memorials pay $4,000.00 (plus filing fee) to Mr Mirkovic. Beta Memorials appealed that decision, and on 2 June 2020 Member Gordon made six orders, the most relevant of which for the current hearing are restated below:
1. …
2. …
3. Leave to appeal is granted. The appeal is allowed.
4. The decision made in application MCDO25/19 (Southport) on 23 April 2019 is set aside and the application is returned to the tribunal for reconsideration in the minor civil dispute list by any tribunal properly constituted.
5. The following directions apply to the remitted hearing of MCDO25/19 (Southport):
(a)The Appeal Tribunal shall provide the transcript of the hearing on 23 April 2019 to the Southport Registry to be attached to the file of MCDO25/19 (Southport) and the transcript shall be admissible in evidence at the hearing.
(b)Beta Memorials Pty Ltd shall, by 30 June 2020 provide the following documents to the Southport Registry to be attached to the file of MCDO25/19 (Southport):
(i)Statutory declarations of Brendan Masters and Dean Bickerdilze [sic] both made on 28 June 2019;
(ii)Report of Graham Taylor dated 11 November 2019.
(c)Dragan Mirkovic shall by 30 June 2020, provide the following documents to the Southport Registry to be attached to the file of MCDO25/10 (Southport):
(i)Report of Luke Zwolsman of Artistone dated 28 August 2019;
(ii)Affidavit of Dragan Mirkovic made on 20 January 2019 with its exhibits.
(d)All the documents listed above (as filed by Beta Memorials Pty Ltd and Dragan Mirkovic) shall be admissible in evidence at the hearing.
(e)Any further material on which either party wishes to rely must be sent to the other party and to the tribunal to be attached to the file of MCDO25/19 (Southport) by 30 June 2020.
(f)- (j) …
6. All of the directions are subject to the discretion of, and may be amended or waived by, the tribunal either before or at the remitted hearing.
The issue for adjudication by this tribunal (as with the first) is whether Beta Memorials failed to comply with the consumer guarantees provided by the Australian Consumer Law when it constructed and installed a burial monument at the Nerang Cemetery at the request of Mr Mirkovic.
Background to the Dispute
On 14 March 2018 Mr Mirkovic ordered a monument from Beta Memorials for the burial site of his deceased father (which also included a provisional plot for his mother). The specifications of the order are detailed on a document titled ‘Contract/Receipt to Erect a Memorial’ signed by Mr Mirkovic and Mr Paul Taylor (as director of Beta Memorials Pty Ltd). The total price of the memorial was $18,000.00, towards which Mr Mirkovic paid a deposit of $4,000.00 on or just after 14 March 2018.
Construction of the monument appears to have been fraught over the following few months, with both parties accusing each other of mistakes during the design phase, primarily with respect to the positioning and accuracy of the Cyrillic inscription Mr Mirkovic requested on the headstone. The inscription is not, however, directly at issue in this hearing.
The monument was put into place at the Nerang General Cemetery, with installation of the headstone occurring on 1 and 2 November 2018. On 5 November 2018, the Gold Coast City Council (‘GCCC’) issued a ‘Defect Notice’ to Beta Memorials in respect of the memorial noting several defects, which I summarise as follows:
(a)The drawings supplied to City of Gold Coast Cemeteries in August 2018 do not match the monument on site;
(b)The headstone/backstone thickness supplied does not meet minimum prescribed requirements in the relevant Australian Standard;
(c)The headstone was found to be extremely unstable upon inspection and likely to be unable to withstand prescribed wind loads, vibration or contact from passers-by; and
(d)Poor adhesion and grouting.
The author of the Defect Notice concluded that Beta Memorials had not complied with the minimum requirements for structural stability, that the headstone was unsafe and presented a risk to visitors and workers in the cemetery, and stated that Mr Mirkovic should consider how the monument might be repaired.
The headstone was removed from the site by Beta Memorials on 23 December 2018.
Mr Mirkovic now seeks return of his $4,000.00 deposit.
Interim Applications
Three days prior to the rehearing of this matter Mr Mirkovic filed an application for miscellaneous matters seeking leave to amend his initial application to add a request for orders for quoting and compensation for removal of parts of the monument not at issue in the original claim. At the appeal Member Gordon informed Mr Mirkovic that if he was to amend the original claim, he must do so “well before the remitted hearing.”[1] I refused this application at final hearing primarily because it sought orders not within QCAT’s jurisdiction [and they could not be considered ancillary orders under s 114 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), but also because such a late filing did not allow the respondent sufficient time to respond prior to hearing, despite Member Gordon’s instruction.[2]
[1]Beta Memorials Pty Ltd v Dragan Mirkovic [2020] QCATA 82, [35].
[2]Section 47(2)(a), Queensland Civil and Administrative Tribunal Act 2009 (Qld).
A further application for miscellaneous matters was filed on 31 July 2020, seeking similar directions and asking the Tribunal to make certain findings about the entire grave site when the application has not been formally amended to include this. That application is refused for the same reasons as the 30 June application, ie. lack of jurisdiction and as an abuse of process given the very late timing of the application.
Accordingly, this decision involves only the claim initially made about return of the $4,000.00 due to an allegedly defective headstone.[3]
[3]Mr Mirkovic is at liberty to seek advice about other claims he has that may have arisen since filing this claim.
The Applicant’s Evidence
Mr Mirkovic told the Tribunal:
(a)He ordered the monument from Beta Memorials in March 2018, but building did not commence until August 2018;
(b)The monument was to be exactly like one in a picture Mr Mirkovic had given to Mr Taylor, director of Beta Memorials;
(c)He asked Mr Taylor for two eagles to be engraved on the monument and for a cross, but these engravings were not done;
(d)He asked for part of the headstone to be 10cm wide, whereas Beta Memorials provided a part that was only 6.5cm wide;
(e)Mr Mirkovic said the headstone had to be removed three times due to mistakes by Beta Memorials, including the pillars being in the wrong place which covered letters on the headstone, the inscription being on the right side rather than the left, and finally when the GCCC directed its removal due to instability;
(f)Mr Mirkovic says that he first saw the installed headstone on 2 November 2018, when Beta Memorials staff were there to detail and finish off the memorial. He said he did not attend the cemetery on 1 November 2018;
(g)He said that on 2 November, with Beta Memorials staff in attendance, he touched the headstone from the back by accident and it moved. It was then that he told Beta Memorials that he didn’t want them to continue work on the memorial.
Mr Mirkovic also filed the following material to support his application:
(a)A report by Odyssey Consulting Group dated 10 January 2019 (‘Odyssey Report’);
(b)A report by Luke Zwolsman of Artistone Custom Stone Design dated 28 August 2019 (‘Artistone Report’); and
(c)Correspondence from Smiljan Jankovic, Natalia Savatic and Bozo Manojlovic about their alleged individual negative experiences of ordering memorials from Beta Memorials.[4]
[4]Further material was submitted to the Tribunal on behalf of Mr Mirkovic on 30 July 2020, including a letter from Mr Angelo Iancu of AI Trusted Consulting Engineers dated 24 July 2020 and various correspondence from the GCCC. This material was filed after the 30 June deadline specified in order 5(e) of the Appeal Tribunal’s 2 June Orders, and without leave. This material has therefore not been considered.
The Odyssey Report
The author of the Odyssey Report is Nathan Dwyer, Senior Structural Engineer for Odyssey Consulting Group Structural and Civil Engineers. The Odyssey Report was prepared at the request of the GCCC.
Mr Dwyer made the following observations:
… [W]hen a small lateral force was applied by hand at the top of the headstone, significant movement and rocking of the headstone was visually noticeable. At the time of the inspection the number of dowels and grouting method was unable to be determined. However given the rotation observed at the base of the stone when applying force, it was evident that the base fixings were inadequate to provide adequate structural stability.
Given the instability observed on the 21 December 2018, Odyssey Consulting Group advised that the structure was unstable and potentially unsafe. …
The Odyssey Report also noted that the author viewed photographs after the monument was removed and observed that the installed dowels were generally in accordance with the relevant Australian Standard.[5] However the Odyssey Report also noted that:
(a)The “geometry of the monument” did not allow for the headstone to be doweled into the pillars as depicted in diagrams accompanying the Australian Standard;
(b)The headstone and pillars moved independently of each other;
(c)If the headstone and pillars were doweled together to form a single structure, the overall structure would be significantly more stable;
(d)As it is not possible to dowel the headstone and pillars together due to the geometric configuration of this monument, adequate stability might otherwise be achieved by anchoring the dowels to the base and apex of each element independently.[6]
[5]AS4204 – Headstones and Cemetery Monuments.
[6]Odyssey Report, section 3, paragraphs 3 and 4.
An observation was also made that the headstone appeared to be less than the minimum required thickness of 70mm, but that this would have no effect on stability.
The Artistone Report
The Artistone Report was written on 28 August 2019. The author of the Artistone Report is Luke Zwolsman. No professional description or credentials are provided to support the opinion of the author in the Artistone Report. It is also not clear whether Mr Zwolsman based his report on an in-person visual inspection of the memorial or on photographs.
With regard to the headstone, the Artistone Report states that “there is no evidence that the headstone base has been mechanically fixed to the footing of any other panels.”[7] The thrust of this point is unclear. The reference to “mechanically fixed” is not defined, and the opinion is not given with reference to any industry standard, Australian standard or relevant comparison.
[7]Artistone Report, exhibit A to Dragan Mirkovic’s affidavit of 28 October 2019, page 1, paragraph 1.
Otherwise, the Artistone report makes no mention of the headstone. Rather, it discusses at length other parts of the monument which are not at issue in the current claim.
Correspondence of Jankovic, Savatic and Manojlovic
Letters written by Smiljan Jankovic (undated), Natalia Savatic (dated 17 January 2020) and Bozo Manojlovic (dated 18 January 2020) all outline their apparent dissatisfaction after ordering monuments for deceased family members from Beta Memorials in previous years.
These critiques are not evidence for Mr Mirkovic’s allegations in this dispute. They apply to the writers’ individual transactions with Beta Memorials and cannot be used to bolster Mr Mirkovic’s claim by seeking to indicate Beta Memorials’ propensity for poor quality work. Rather, Mr Mirkovic’s claim must be adjudicated based on the details of his own transaction with Beta Memorials.
Accordingly, these letters have no weight in my consideration of the matter before me.
The Respondent’s Evidence
Mr Taylor gave evidence to the Tribunal for Beta Memorials. He said that he (and/or Beta Memorials) had built almost one hundred of this type of memorial, but this was the first to come loose.
Mr Taylor agrees with Mr Mirkovic’s claim that the headstone was removed three times between August and December 2018. The first of the three times Mr Taylor said was due to a spelling mistake Mr Mirkovic had made in the Cyrillic inscription, which he had previously signed off on. The second time the headstone was removed because the inscription was on the right side rather than on the left, which according to Mr Taylor, Mr Mirkovic also signed off on.
Beta Memorials agreed to resolve the issue of the inscription being on the right rather than the left of the headstone’s face by turning the headstone around and engraving on the correct side.
Mr Taylor says that Mr Mirkovic and his mother came to Beta Memorials’ workshop and approved the inscription before it was engraved the final time.
After the headstone was re-installed on 1 November 2018, Mr Taylor said Mr Mirkovic told him he’d noticed another spelling mistake. Mr Taylor told Mr Mirkovic he would have to charge $3,000.00 to replace the headstone as this was Mr Mirkovic’s error.
Final detailing (which includes application of silicone to joins and general cleaning), which must be left until mortar has cured, was to be done the following day on 2 November.
A short time after Mr Taylor and his employees returned on 2 November to detail the headstone, they saw Mr Mirkovic approach with his demeanour “totally off the richter scale”. Mr Taylor said he then saw Mr Mirkovic shake the headstone “violently”.
Mr Taylor shouted at Mr Mirkovic to stop shaking the headstone, then asked, “Who showed you how to do that?” Mr Taylor said he asked that question because people don’t generally come off the street and shake a headstone of that stature.
Mr Taylor said that Mr Mirkovic then asked them to stop work.
Mr Taylor said that he believed someone had told or shown Mr Mirkovic how to shake the headstone, and that Mr Mirkovic had done that when the headstone was installed the evening before to ensure that the mortar would not set (or “go off”). Mr Taylor said he believed that Mr Mirkovic’s motivation was to get out of the contract with Beta Memorials because another company had offered a cheaper price.
Brendan Masters, an apprentice stonemason employed by Beta Memorials, was at the cemetery for the installation and detailing of the headstone on 1 and 2 November 2018, and attended the hearing to give evidence.[8] Mr Masters said that he and other employees of Beta Memorials installed the headstone in place on 1 November using cement paste and 12mm dowels, then left the site. He said he and his workmates did not put up a barrier to prevent people from touching the monument because there are usually no people around. On further questioning from Mr Taylor, Mr Masters said barriers were never put around headstones after installation.
[8]A Statutory Declaration made by Mr Masters on 28 June 2019 was also submitted by Beta Memorials.
Mr Masters said he did not see Mr Mirkovic on the day of installation, but when the Beta Memorials employees returned between 7:00am and 8:30am the next day to start detailing, they saw Mr Mirkovic approach the memorial and then he “demonstrate[d] how loose the headstone was by grabbing and shaking it.” Mr Masters told the Tribunal that Mr Mirkovic didn’t softly shake it, rather he “proper grabbed it and rocked it”, and he was “surprised it didn’t fall over.”
Mr Masters said that he and the Beta Memorials staff installed Mr Mirkovic’s memorial in the same manner as for all of their memorials, but this was the first to come loose.
Dean Bickerdike also provided a statutory declaration[9] in support of Beta Memorials, but did not appear in person to give evidence. Mr Bickerdike is a stonemason who once worked for Beta Memorials, but did not have any involvement with Mr Mirkovic’s memorial. In his statutory declaration Mr Bickerdike relays a conversation with someone who said that “Paul [Taylor]’s client had rung him asking him for a price… Paul’s client told him told him he was going the crash the contract.”
[9]Statutory Declaration of Dean Bickerdike dated 28 June 2019.
Mr Bickerdike’s statutory declaration is, I assume, submitted by Beta Memorials to support Mr Taylor’s theory that Mr Mirkovic was motivated to damage the headstone to get a cheaper price elsewhere.
I give no weight to Mr Bickerdike’s statutory declaration because it is hearsay, and not substantiated by any other evidence before the Tribunal. While QCAT is not bound by rules of evidence including the rule against hearsay,[10] it may adopt those rules, particularly when to do so would give effect to the Tribunal’s requirement to observe the rules of natural justice.[11] It would be unjust to allow Beta Memorials to rely on hearsay that is uncorroborated and where the maker of the alleged statement was not available for cross examination.
[10]Section 28(3)(b), Queensland Civil and Administrative Tribunal Act 2009 (Qld); the rule against hearsay is found in s 92, Evidence Act 1977 (Qld) and generally in the Uniform Civil ProcedureRules 1999 (Qld).
[11]Section 28(3)(a), Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Beta Memorials also filed the following reports in defence of the application:
(a)A report from Walker Engineering dated 15 March 2019 (the ‘Walker Report’); and
(b)A report from Mr Graham Taylor dated 12 November 2019 (the ‘Taylor Report’).
The Walker Report
The Walker Report was based on an inspection of the memorial on 16 February 2019, by which time the headstone had been removed by Beta Memorials and taken to its business premises.
The Walker Report found that the mechanism of failure of the monument headstone configuration was due to a failure of the dowels to keep the headstone, pillars and pediment in position.[12]
[12]Walker Report, section 5.0.
The Walker Report noted that Beta Memorials had stated to the report writer that “the owner” (Mr Mirkovic, presumably) had attended the site and “proceeded to test the stability of the headstone by applying force to the headstone…”,[13] and ultimately found that:
The mechanism failure was due to the dowels not adhering to the mortar adequately which may be due to one or more of the following reasons:
a.The headstone was loosened by a force being applied to it by the owner prior to the mortar having time to adequately set (if this event occurred then this is the most likely scenario);
b.The installation of the dowels and mortar was not performed properly at the time of construction (this is a possible scenario);
c.The mortar did not adhere to the dowels adequately as they were smooth with no notching or burring of the dowel bars (this is an unlikely scenario).
The configuration of the monument components is not considered a mode of failure and if the dowel and mortar installation had not been compromised in some way then the monument would not have failed in stability.[14]
[13]Ibid.
[14]Ibid.
The Walker Report’s final conclusion was that the monument stability was inadequate due to a “dowel and mortar installation failure and not a design fault of the monument configuration.”[15]
[15]Ibid, section 7.0.
The Taylor Report
The Taylor Report was written by Mr Graham Taylor. Graham Taylor states that he holds a Cert III in Stone Masonry (and has been in the field since 1982), a Cert III in Mechanical Engineering (Maintenance), a Cert III in Mechanical Engineering (Fitter), and a Diploma in Air Conditioning and Refrigeration Engineering.
As its title ‘Comment on the Structural Report of Monumental Work on the Monument at Nerang General Cemetery Filed by Artistone Dated 28.08.19’ suggests, the Taylor Report is a critique of the Artistone Report, which (as noted above) I have found was not conclusive on the issue of the unstable headstone.
Similarly, the Taylor Report makes no definitive comment about the unstable headstone and what may have caused it. It discusses alleged defects in areas of the memorial that are not the subject of these proceedings.
The Relevant Legal Principles
The Australian Consumer Law (‘ACL’) provides several guarantees to protect the rights and interests of the consumers of most goods and services.
Section 54 of the ACL provides a guarantee that goods supplied to a consumer will be of ‘acceptable quality’. Goods are of acceptable quality if they are as:
(a)Fit for all the purposes for which goods of that kind are commonly supplied; and
(b)Acceptable in appearance and finish; and
(c)Free from defects; and
(d)Safe; and
(e)Durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods) would regard as acceptable having regard to the nature of the goods, the price, statements and representations made about the goods, and anything else relevant to supply of the goods.[16]
[16]Section 54(2) and 54(3), Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth).
The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.[17]
[17]Medtel Pty Ltd v Courtney (2003) 130 FCR 182, [64] and [70].
The guarantee does not apply if the consumer to whom the goods were supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them becoming of unacceptable quality, and the goods are damaged by abnormal use.[18]
[18]Section 54(6), Australian Consumer Law.
If it is found that a supplier has failed to comply with a consumer guarantee, the consumer may be entitled to a remedy which may include rectification and/or damages, with the available remedy dependent on whether or not the failure to comply was a major failure.[19]
[19]Sections 259, Australian Consumer Law.
A failure to comply with a consumer guarantee applying to goods is a ‘major failure’ if (so far as is relevant to this claim):
(a)The goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b)The goods depart in one or more significant respects, if the goods were supplied by description—from that description (…); or
(c)The goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d)The goods are unfit for a disclosed purpose that was made known to the supplier or agent of the supplier, and cannot easily and within a reasonable time be made fit for such a purpose; or
(e)The goods are not of acceptable quality because they are unsafe.[20]
[20]Section 260, Australian Consumer Law.
If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a)Subject to time limits, notify the supplier that the consumer rejects the goods and of the ground for rejection; or
(b)Apply to recover compensation for any reduction of value in the goods.[21]
[21]Section 259(3), Australian Consumer Law.
Additionally, the consumer may apply to recover damages for loss or damage suffered if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of the failure to comply with the guarantee.[22]
[22]Section 259(4), Australian Consumer Law.
If the failure to comply with a guarantee can be remedied and is not a major failure:
(a)The consumer may require the supplier to remedy the failure within a reasonable time; or
(b)If such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement within a reasonable time—the consumer may:
(i) Otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) Subject to s 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.[23]
[23]Section 259(2), Australian Consumer Law.
Consideration of the submissions and evidence must therefore focus on:
(a)Whether or not Beta Memorials supplied a headstone of acceptable quality to Mr Mirkovic in November 2018; and
(b)If it did not, whether that amounted to:
(i) a major failure to meet the guarantee as to acceptable quality, for which Mr Mirkovic is entitled to return of his deposit as requested; or
(ii) a failure to meet the guarantee which was not a major failure, for which Mr Mirkovic was entitled to request that Beta Memorials remediate the headstone to make it of acceptable quality.
Consideration of Submissions and Evidence
Mr Mirkovic is a consumer and Beta Memorials is a supplier, and the consumer guarantees in the ACL apply to Beta Memorials’ supply of the memorial to Mr Mirkovic.[24]
[24]Section 3, Australian Consumer Law.
There is no dispute that, by 2 November 2018, the headstone was not of acceptable quality as defined by s 54 of the ACL because:
(a)It was not fit for purpose once removed at the direction of the GCCC; and
(b)It was not free from defects because the headstone was not securely fitted to the rest of the memorial; and
(c)It was not safe because it was unstable.
The reports submitted by the parties do not argue against this conclusion, and I find accordingly.
However, Mr Taylor for Beta Memorials contends that it was Mr Mirkovic who caused the headstone to become unstable by shaking it violently, and therefore he caused it to be unfit for purpose, defective and unsafe. If this line of argument is to be accepted, Beta Memorials would not be liable pursuant to s 54(6) of the ACL.
Evidence given by Mr Taylor and Mr Masters for Beta Memorials was that the mortar around the dowels would have set by 2 November when they returned to detail the memorial. They say that if Mr Mirkovic simply touched the headstone for the first time on 2 November as he said—violently or otherwise—the headstone should not have moved. It is Mr Taylor’s submission therefore that Mr Mirkovic must have come to the site on 1 November while the mortar was still wet and shaken or moved the headstone.
Photos submitted to the Tribunal by Mr Mirkovic also show that the mortar around where some dowels had been inserted had set on an angle, and some dowels show that the mortar had not adhered to the dowels, suggesting that the dowels had moved before the mortar had set. This is also confirmed by the Odyssey Report and the Walker Report.
There is, therefore, sufficient evidence in my view to find that the headstone had been moved between 1 and 2 November, causing the mortar to dry in a way that resulted in the headstone becoming unstable by 2 November. However, there is no evidence to show that Mr Mirkovic moved it. Mr Taylor’s inferences about Mr Mirkovic’s motivation to “crash the contract” are not evidence that he in fact moved it.
While Beta Memorials says that it is not industry practice to cordon off a newly-installed memorial, it is possible that by not protecting the site, the headstone could be moved or tampered with by anyone. If movement occurs before the memorial has been completed and handed over to a client, Beta Memorials bears the liability, even if the risk or probability of it happening is very low.
Accordingly, as I have found that the headstone was unsafe (in addition to being unfit for purpose and defective), the failure by Beta Memorials to supply a headstone of acceptable quality is a major failure for which Mr Mirkovic is entitled to return of the $4,000.00 he has paid to Beta Memorials, as requested.
Orders
In compliance with orders made in the first hearing of this matter, I understand that Beta Memorials has already refunded the $4,000.00 (plus filing fee) to Mr Mirkovic. Consequently, I make the following orders:
1.The application for miscellaneous matters filed by Dragan Mirkovic on 31 July 2020 is refused.
2.Beta Memorials Pty Ltd must pay $4,120.50 to Dragan Mirkovic (being return of the deposit for a memorial and the QCAT Filing Fee) within 28 days if it has not already done so prior to receiving these Orders.
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