Giddings v Toohey [2026] VCAT 124 (20 February 2026)
[2]
Small claim by supplier for payment for repair work performed - objectively, the repaired item is unsatisfactory - competing theories as to whether or not the item was damaged by causes independent of the applicant supplier - sections 54, 60, and 236 of the Australian Consumer Law (Victoria) - the damages sustained by the consumer because of the breach of the consumer guarantees are equal to the sum claimed by the supplier.
[3]
Mr Giddings seeks payment of $3,478.00 from Mr Toohey, for repair work carried out by Mr Giddings in 2023, on a powder coated metal fence that he had manufactured and supplied to Mr Toohey in 2020 - 2021. Mr Giddings manufactured and installed the powder coated fence for a contract price of $8,976.00. Mr Giddings engaged a sub-contractor to do the powder coating. Mr Toohey paid that sum.
Mr Giddings sees the supply of the fence, and the repair in 2023, as entirely separate transactions. As such, he sees the repair work as having been performed under a contract by which Mr Toohey hired him and for which Mr Toohey must pay.
Mr Toohey has refused to pay the $3,478.00. He argues that the fence supplied was defective, and that accordingly the repair in 2023 was work which Mr Giddings was obliged to perform under the Australian Consumer Law (Victoria) at no charge. In his Points of Defence, which he adopted in the hearing as his evidence in chief, Mr Toohey said that the fence coating was not fit for purpose in longevity or appearance; that Mr Giddings had admitted that the fence coating was unsatisfactory and expressed the view that Mr Toohey might have a claim against the powder coater; and that Mr Giddings repainted the fence when it was only two years old, without mentioning that he expected any sort of payment.
Mr Toohey says the fence developed brown surface rust and 'white rust (for want of a better description)' within a few months of being supplied. He attached 8 pages of numbered photographs with his Points of Defence. Photographs 10 to 16 show the fence, in around February 2025 and therefore after the repair, and certainly depict these unsightly brown and white 'markings' on the uprights. There are no photographs from before the repair, but it stands to reason that the fence looked bad before the repair, because there would be no reason for Mr Giddings to have worked on the fence in 2023 were that not the case. Mr Giddings argues that the white markings are salt deposits, from the sea air. In the hearing he did not offer an explanation for the brown markings.
Mr Toohey also argues that the repair has been unsuccessful.
Mr Toohey has not made a counterclaim. He only seeks an outcome to the effect that he is not liable to pay Mr Giddings $3,478.00.
The hearing lasted for several hours. The parties represented themselves, gave evidence and cross-examined each other. The parties' wives also spoke briefly, putting some arguments as distinct from giving evidence.
As I explained to the parties in the hearing, even though section 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides that the Tribunal is not bound by the rules of evidence, the section is not a license to the Tribunal to abandon those rules and their underlying concepts entirely. The section is really directed at assisting self-represented parties to appear in hearings, without having to be concerned about legal technicalities. The Tribunal can hear 'information' which would be inadmissible in a Court proceeding (such as opinions expressed by people who are not experts in the subject matter of their opinion) but can then disregard inappropriate information.
Mr Toohey lives in Ocean Grove, not far from the beach and not at a high elevation. Mr Giddens lives in another area of Ocean Grove, in a different microclimate.
In the hearing Mr Giddens expressed his opinions about the amount of salt which comes up from the beach and the river to Mr Toohey's house in the wind; the regularity of a sea mist; how cars rust in Ocean Grove unless they are frequently washed and garaged; the failure of Mr Toohey to maintain the fence; the presence of 'white stuff' on the fence, which he said was 'blasted-in salt' - that is, salt which had been blasted into the powder coating by the force of the wind - ; that the fence had been damaged by the environment; and that a metal fence on another house - number 121 in the same street as Mr Toohey's and which Mr Giddings said was between 300 and 500 m away - did not display the same condition because it was not met by wind from the same direction and because it received a degree of protection from the lie of the land and the house next door.
Meanwhile Mr Toohey relied on some photographs which he filed with his Points of Defence, showing the metal fences at both his house and at number 121, and his oral evidence describing his own observations of his fence. The most vivid photographs produced by Mr Toohey are his photographs 12-16, which show an unsightly fence as at around February 2025, which was after Mr Giddings had performed repair work. Mr Toohey refers to 'rust'.
Neither party produced expert evidence. This is not surprising in a case involving $3,478.00. Experts charge serious money, and the Tribunal is not empowered to order one party to pay the other party's 'costs' in a small claim, regardless of the result. The Tribunal frequently deals with small claims where neither party produces expert evidence, and is well aware of the fact that the expense of engaging an expert could make the 'bottom line result' for the successful party illusory.
In the absence of expert evidence, and with Mr Toohey's photographs being the best evidence of the appearance of the fence in around February 2025, it is not even clear whether the deterioration in the fence which is shown in Mr Toohey's photographs is consistent with Mr Giddings' theory that there have been particles sitting on the outside of the powder coating and later on the outside of the repaired painted surface, or whether it is corrosion of the metal under the powder coating which is forcing its way through the powder coating. Mr Toohey did not have a view on this, although he did question Mr Giddings as to whether the subcontractor who performed the powder coating was competent. Mr Giddings answered that the powder coater was very experienced, competent, and had powder coated many metal objects in Ocean Grove - all of which he said without any objective evidence such as photographs of those objects.
I proceed to draw the conclusions that I can, on the evidence presented, setting aside what I must regard as mere unsubstantiated laypersons' theories and speculation.
Returning to my comment that limited issues were raised:
Mr Giddings supplied the fence for $8,976.00 a few years ago and was paid. So, he is not claiming payment of a debt for that original work.
Mr Toohey elected not to make a counterclaim in respect of the original work charged at $8,976.00.
[4]
(a) In a period of up to around 18 months after Mr Giddings installed the fence, Mr Toohey observed that the fence was looking unsightly and he had some telephone calls with Mr Giddings. Neither party documented these phone calls. Mr Giddings said that Mr Toohey's tone was not that he was making demands, such as requiring Mr Giddings to repair the fence under a warranty. Rather, Mr Toohey was politely applying pressure. Mr Giddings inspected the fence and subsequently performed some repair work. There is no doubt that the work was difficult in that it took a lot of hand sanding with emery paper and then the application of two coats of primer and a third coat of marine grade paint. The question really is whether the repair work was of acceptable quality.
[5]
Mr Giddings gave evidence that he believed that Mr Toohey was engaging him to paint the fence, under a separate contract and not in the context of him repairing the fence under warranty. On the basis of his belief that the fence had been damaged by the environment, he did not consider that any warranty applied. Clearly, Mr Giddings was thinking about contractual warranties contained in express 'terms and conditions' of a contract. He had not turned his mind to the consumer guarantees that apply under the Australian Consumer Law (Victoria).
Mr Giddings did not give Mr Toohey a quote, even orally, for the repair work. As such he did not explain to Mr Toohey that he would charge so many dollars an hour, or how much the materials would cost. He simply presented an invoice after doing the work. This is to be contrasted with Mr Giddings' conduct when he did the initial job. When he manufactured and installed the fence, he provided a written quote (actually two written quotes which came to slightly different totals based on them providing for different types of 'caps' on the main uprights of the fence) and Mr Toohey accepted the higher quote without any negotiation over the amount. Mr Giddings said his invoiced amount of $3,478.00 for the repair was not only fair and reasonable, but was for less than he would have charged a year or so earlier. Mr Giddings explained that for many years he had run an engineering business from rented factory premises as a sole trader, under a registered business name, but that by the time he built the fence for Mr Toohey he had retired and was doing small jobs from a home workshop. Because he was not incurring overheads, and especially rent, once his lease had ended he reduced his charges.
Mr Toohey, however, believed that Mr Giddings was repairing the fence at no charge. Mr Toohey did not turn his mind to whether there was a written warranty given by Mr Giddings as the supplier of the fence, but whilst he did not mention the Australian Consumer Law (Victoria) by name in the hearing he had alleged in his Points of Defence that the fence coating was not 'fit for purpose' which is a legal concept that existed in common law, well before the Goods Act 1958 (Vic) and which still exists in the Australian Consumer Law (Victoria). I am satisfied that Mr Toohey believed that the fence was defective and that Mr Giddings was repairing it at no charge because he was obliged to.
So, for that reason alone, Mr Toohey was surprised when Mr Giddings presented his invoice.
Then, shortly after receiving the invoice Mr Toohey observed that the fence was again unsightly, which caused him to conclude that the repair work was itself defective, which was another reason why he should not pay the invoice.
I note that during the hearing, after Mr Giddings had given his evidence and been cross-examined, so that the parties had a very good idea of what the evidence of both sides would be, I gave the parties the opportunity to have a brief without prejudice discussion to see whether they could reach an agreement on this claim for $3,478.00. Both of them declined and said they needed the umpire's decision.
[6]
Is Mr Toohey liable to pay Mr Giddings $3,478.00?
[7]
I preface this discussion by noting that Mr Giddings issued the proceeding claiming $4,207.00. He explained in the hearing that because Mr Toohey did not pay the invoiced sum of $3,478.00, which Mr Giddings saw as the discounted price, he thought it appropriate to be paid the amount he would have charged if he was still running his business in the rented premises. There is no legal basis for this idea, and the claim remains at $3,478.00.
Mr Giddings also said that he has waited several years to be paid and so he wanted to add interest to his claim. This is not possible because Mr Giddings did not claim interest in his initiating Application form, and adding a claim for interest in the hearing would 'ambush' Mr Toohey. It would only be possible if Mr Giddings obtained leave to amend his claim. The granting of such leave could have necessitated an adjournment of the hearing with a consequent undesirable delay in finalizing the proceeding. So again, the claim remains at $3,478.00.
The starting point is to consider whether Mr Giddings performed the repairs under a contract, agreement or retainer under which he was performing work for which he was entitled to be paid. Expressing the question from the other direction, whether Mr Giddings was performing the work as a repair of defective goods.
Both sides agree that the fence needed to be repaired, and Mr Toohey's photographs bear this out. I did not accept Mr Giddings' theory that the white markings on the fence are salt deposits. The best evidence presented in the proceeding is Mr Toohey's photographs and they show brown and white markings growing through the powder coated surface. When he described his performance of the repair work, Mr Giddings said that the white markings could not just be wiped off, and this observation is inconsistent with his theory that the white markings are just salt sitting on the outside of the surface.
On the evidence given by both sides, I conclude there was no express contract under which Mr Toohey hired Mr Giddings to repair the fence. For there to be such a contract, the parties would have had to agree on the scope of work and a price. As matters were left between them, they simply had a vague arrangement under which Mr Giddings repaired the fence.
If Mr Giddings had repaired a fence which had been supplied by another supplier, there would be a presumption that he was to be paid for the work. If the parties had not agreed on a price, Mr Giddings would have been able to claim payment on a quantum meruit. In such a claim, Mr Giddings would not have been able to dictate the price. He would have had the burden of proving the 'reasonable' price for the work he performed, and to do that he would have needed evidence from a similar contractor.
However, because Mr Giddings repaired his own fence, this vague arrangement is not enough for Mr Giddings to claim payment on a quantum meruit.
Even though Mr Giddings had retired and stopped trading from his rented factory premises, in the matter of the repair he was still the professional and Mr Toohey was the consumer. Mr Toohey was entitled to rely to a degree on Mr Giddings' experience in not only how to perform the repair work, but also how to set up the arrangement under which the work was performed. Mr Giddings left Mr Toohey in the frame of mind that he was performing the work as a repair of his earlier defective work. In my view, Mr Toohey was entitled to form that belief - not as a subjective conclusion based on an idiosyncratic perception of the world, but as an objective matter. That is, a stranger observing those very vague discussions alleged by Mr Giddings would, in my opinion, conclude that Mr Giddings was arranging to perform the work for no charge.
Then, I am satisfied by the photographs produced by Mr Toohey, even though they are less than ideal, prove that the outcome of Mr Giddings' repair work has been unsatisfactory. I do not doubt that Mr Giddings worked hard at repairing the fence. Sanding the metal palings by hand with emery paper, and then applying multiple coats of paint, is no easy matter. However, that is not the point.
The point is that sections 54 and 60 of the Australian Consumer Law (Victoria) have the effect of Mr Giddings having given Mr Toohey a guarantee of the repair, that the goods - the three coats of paint - and his services - being his sanding of the fence and application of the multiple coats of primer and marine paint, would produce an end result which was of acceptable quality. The photographs establish that the repaired fence is again unsightly. It is not of acceptable quality. On the balance of probabilities, photographs 12 - 16 suggest that the fence is unsightly because salt is sitting on the outside of the new paint, as suggested by Mr Giddings. The corroded appearance suggests that there is corrosion under the new paint which is causing the new paint to break down. Whether this has resulted from Mr Giddings sanding the powder coating off the fence and not applying the primer quickly enough to prevent corrosion beginning, or whether the original powder coating was unsuccessful so that there was always corrosion under that powder coating, is irrelevant under the Australian Consumer Law (Victoria). Mr Toohey does not have to prove that Mr Giddings did something wrong or why the repaired fence is unsightly. Instead, Mr Giddings' had, by operation of law, guaranteed that the repaired fence would be of acceptable quality, and on the evidence he did not comply with that guarantee.
The breach of the guarantee entitles Mr Toohey to damages, and by denying that he was liable to pay Mr Giddings' invoice, Mr Toohey has elected to cap those damages at $3,478.00. Those damages are to be set off against Mr Giddings' claim.
In the event that it was arguable that Mr Toohey had hired Mr Giddings to repair the fence for a fee, the defects in the repaired fence would disentitle Mr Giddings to payment, leading to the same result.
In the circumstances, I must dismiss Mr Giddings' claim.