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[2009] VCAT 357
defendant. Matti’s claim and Girstun and Mecmejerski’s counterclaim were dismissed; Matti was ordered to pay Girstun’s costs from 8 October 2008, as agreed or assessed on County Court scale B, and the...
Matti said he was owed $12,325 for rendering work, but the Tribunal rejected the invoice and evidence he relied on to establish a $17,325 contract price. The owners' counterclaim also failed because they did not prove financial loss from the alleged defects. The Tribunal later ordered Matti to pay Girstun's costs because it found an earlier offer complied with the relevant statutory provisions and the outcome was not more favourable to Matti than that offer. The reasons do not establish a general rule beyond those findings.
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2,267 words · generated 02/10/2026
Matti v Girstun (Domestic Building) concerned a dispute about rendering work at a home in Sunridge Place, Berwick. Senior Member M. Lothian gave reasons on 4 March 2009 for both the substantive decision and a later costs decision. The substantive hearings took place on 28 October and 19 December 2008, and the costs hearing took place on 20 January 2009.
No linked legislation citations have been extracted yet.
Matti was the rendering contractor. Girstun was the builder who entered the contract with Matti, and Mecmejerski, Girstun's daughter, owned the home. She had sold it by the time of the proceeding. Matti claimed that the contract price was $17,325, that $5,000 had been paid, and that $12,325 remained outstanding. Girstun said the contract price was $5,000 and that it had been paid in full. Girstun and Mecmejerski counterclaimed for $14,245, referring to the cost of rectifying the work or the home's alleged diminution in value.
The dispute about price turned substantially on invoice 0073, which Matti relied on to support the higher contract sum. The Tribunal noted that the invoice was dated “07.09.04”, although the month appeared originally to have been “08” and then written over. It considered the invoice's position in the invoice book and found it was not genuine and had been created recently by Matti. The Tribunal therefore did not accept Matti's evidence, or evidence given on his behalf, about the asserted contract sum. It dismissed his claim.
The Tribunal described the rendering as “overall ... acceptable”, while noting streaks, white patches, a few areas of peeling render and minor areas of poor application. It did not decide whether those matters were Matti's fault or what they were worth. The counterclaim failed because the owners had not proved they suffered loss through the alleged breach. They had not repaired the work before the home was sold, and Mecmejerski's assertion that the sale price was lower because of the defects was unsupported by evidence.
A separate costs issue arose after the substantive decision. Girstun produced an offer dated 3 October 2008. Its substance was that the parties would release each other from the claim and counterclaim, and each would bear their own costs. The Tribunal found that the offer complied with sections 113 and 114 of the Victorian Civil and Administrative Tribunal Act 1998. As the Tribunal considered dismissal of both claims not more favourable to Matti than the offer, it ordered Matti to pay Girstun's costs from the deemed day of service, 8 October 2008.
The decision is best understood as three separate evidentiary and procedural determinations, rather than as a broad ruling about rendering contracts or the usual price of building work.
First, the Tribunal had to determine the contract sum for Matti's claim. It expressly distinguished the question of a reasonable market price from the question of what these parties had agreed. An expert called for Girstun and Mecmejerski estimated that rendering a home of this kind would usually cost between $12,000 and $15,000. The Tribunal accepted that $5,000 was a “very low price”, but said its role was not to determine a fair price. The relevant difficulty for Matti was that the Tribunal did not accept the evidence he used to support the asserted $17,325 price. It found invoice 0073 was not genuine, referring to its date and its place in the invoice book. It then dismissed the claim.
That finding should be stated narrowly. The reasons do not set out a general rule about how domestic building contract prices must be proved, nor do they detail a complete evidentiary record about the parties' negotiations. They record the Tribunal's assessment of this invoice and this evidence. The expert's estimate did not itself establish that the parties had agreed on a price in that range.
Second, the counterclaim failed for a different reason. The Tribunal identified imperfections in the finished work but did not determine whether Matti was responsible for them. Nor did it quantify the cost of repair or any diminution in value. It considered those matters unnecessary because Girstun and Mecmejerski had not proved a loss. The work had not been repaired before sale. Mecmejerski asserted that the sale price was lower than it would have been without the defects, but the Tribunal recorded that she gave no evidence supporting that assertion. On this record, the counterclaim could not succeed. The reasons do not amount to a finding that the work was defect-free; they distinguish the existence of imperfections from proof of loss caused by an alleged contractual breach.
Third, the costs order rested on the Tribunal's treatment of the offer and the comparison with the substantive result. At the end of the substantive hearing, Girstun sought costs and produced the 3 October 2008 offer. The Tribunal gave Matti's agent a copy and a copy of section 112, and referred to offers under sections 113 and 114. At the costs hearing, the Tribunal found the offer was made in accordance with sections 113 and 114. It then considered the result, dismissal of both the claim and counterclaim, not more favourable to Matti than the offer. The reasons do not reproduce the full statutory provisions, so their detailed operation should not be inferred from this decision alone.
The costs hearing's scheduling history is also recorded. Matti notified the Tribunal that he and his family would be in the Philippines on 19 December, and his agent appeared for him at the substantive hearing that day. The member intended the costs issue to be heard in mid-February, but the hearing was fixed for 20 January 2009. Matti did not attend or have representation at that hearing. The reasons record this sequence, but do not determine that the scheduling error changed the costs outcome.
This judgment is a single VCAT decision applying the provisions identified in the reasons to the evidence and procedural circumstances before Senior Member Lothian. The supplied text does not set out a prior legal test that the Tribunal altered, and it does not announce a new general doctrine. The most defensible description of its contribution is practical and fact-bound: it illustrates the distinction between proving an agreed contract price and establishing what work might ordinarily cost; it also illustrates that identifying imperfections does not, by itself, establish a counterclaim for loss.
The reasons refer to sections 112, 113 and 114 of the Victorian Civil and Administrative Tribunal Act 1998. They record that a copy of section 112 was provided during the substantive hearing and that the offer was found to accord with sections 113 and 114. The Tribunal used the offer and its view of the relative outcome as part of its costs reasoning. The judgment does not reproduce the sections' complete wording or explain their operation beyond that application. Accordingly, this decision alone does not supply a comprehensive account of the statutory costs regime.
The Tribunal also referred to section 120, which it described as the provision under which a party may seek to reopen proceedings, and section 126, which it said enables time limits to be extended. It noted that Matti had not made an application for review and re-hearing of the costs decision under section 120. Its final direction was administrative: the Principal Registrar was to send the parties copies of sections 120 and 126 and the standard statutory declaration provided to parties seeking to reopen proceedings under section 120. The reasons do not decide whether any such application would succeed.
No later judicial treatment is included in the supplied judgment. It is therefore not possible, on this source alone, to say whether later courts or tribunals followed, distinguished or limited the decision. Nor does the text identify any earlier case as authority for the propositions applied.
The reasons contain several short passages that explain the member's approach.
The member said: “my role was not to determine a fair price, but to enforce the contract between Mr Matti and Mr Girstun.” In plain English, an estimate of the usual price for comparable work did not answer the parties' actual contract-price dispute. The member treated the proven agreement, rather than a market estimate, as the relevant question.
The member found invoice 0073 “is not genuine and has been created recently by Mr Matti”. In plain English, the Tribunal rejected the main document Matti relied on to support the higher price. The reasons connect that finding to the invoice's date and its position in the invoice book, though they do not provide a broader discussion of documentary proof.
On the counterclaim, the member said the counterclaimants had not “proved that they had suffered a loss through Mr Matti's alleged breach of contract”. In plain English, the Tribunal considered proof of loss missing. It therefore did not need to decide who was responsible for the imperfections or how much they were worth.
On costs, the member said the dismissal of the claim and counterclaim was “not more favourable to the Applicant than the offer”. In plain English, the Tribunal compared the result with the offer's proposed mutual release and own-costs arrangement, and concluded that the result did not give Matti a more favourable outcome.
The source text repeats paragraph numbering within sections, so paragraph references are not unique across the whole document. The passages above are located in the reasons under the sections addressing Matti's claim, the counterclaim and the costs decision.
The decision may be relevant as an example where a domestic building dispute involves a contested contract price, an invoice whose authenticity or timing is disputed, and a counterclaim based on alleged defective work. Its reasoning is most closely tied to the features the Tribunal actually recorded: the contractor relied on a particular invoice to establish a higher contract sum; the Tribunal found that invoice was not genuine; and the counterclaimants did not provide evidence sufficient to establish loss.
For contract-price disputes, the decision may help frame the factual question as what the parties agreed, rather than what similar work might cost. It does not say that expert evidence about market price is irrelevant in every case. It says that the estimate in this proceeding did not determine the contract between Matti and Girstun.
For defect claims, the decision illustrates a distinction between observed imperfections and proven loss attributable to an alleged breach. The rendering had some identified flaws, but the Tribunal did not decide responsibility or value because it found the loss evidence inadequate. A fact pattern involving documented repair work, reliable cost evidence or evidence about sale value would not be identical to the record described here. The judgment does not state how those different facts would be resolved.
For costs, the case may be relevant where a party made an offer expressed to be under the cited VCAT Act provisions and the Tribunal must compare the eventual result with the offer. The particular offer here proposed mutual releases and that each party bear their own costs. The reasons do not establish that every offer with those terms, or every dismissal of claims, will produce the same costs result.
The supplied judgment contains no references to later decisions, and no later-treatment material has been provided. It would therefore be unsupported to claim that later courts or tribunals have followed, applied, distinguished or criticised Matti v Girstun.
The judgment itself does not identify a chain of authorities or present its reasoning as a departure from earlier law. Its reasoning is a first-instance VCAT determination by Senior Member Lothian, based on the evidence in this building dispute and the offer presented at the costs hearing. Any account of its subsequent treatment would require sources beyond the judgment provided here.
Several matters remain unresolved by the reasons. The Tribunal did not decide whether the streaks, white patches, peeling or minor poor application were caused by Matti. It also did not assess the value of those imperfections, the cost of repairing them, or whether they had any effect on the sale price. Those matters were unnecessary to the decision because the counterclaimants had not proved loss.
The reasons do not provide the full contract documents or a complete account of any discussions about the price. They record the parties' competing positions and the Tribunal's rejection of invoice 0073, but do not set out a general evidentiary framework for resolving a disputed domestic building contract price. The exact basis for the $5,000 figure beyond Girstun's evidence is not developed in the extracted reasons.
The costs analysis is also confined to this offer and this result. The judgment states that the offer complied with sections 113 and 114 and that the outcome was not more favourable to Matti. It does not reproduce those sections or discuss possible exceptions, other kinds of offers, or the method for calculating the amount ultimately payable. The order provides that costs were to be agreed or assessed by the Principal Registrar on a party-party basis on County Court scale B.
Finally, the Tribunal noted that Matti had not applied under section 120 to review and re-hear the costs decision, and directed that relevant information be sent to the parties. The reasons do not determine whether a later application could meet the statutory requirements or what its outcome would be. This is general legal information, not legal advice. Zoe can make mistakes, and before acting on this, relying on it or using any draft, have it checked by a qualified Australian lawyer.
Domestic Building, sub-contract to apply render, quality of render, terms of contract, claim and counterclaim dismissed, application for costs under s112 of the Victorian Civil and Administrative Tribunal Act 1998, absence of applicant from costs hearing
28 October and 19 December 2008 regarding the substantive matters and 20 January 2009 regarding costs.
Matti v Girstun (Domestic Building) [2009] VCAT 357
I direct the Principal Registrar to send the Applicant a copy of ss 120 and 126 of the Victorian Civil and Administrative Tribunal Act 1998 and a copy of the standard statutory declaration that is provided to parties seeking to re-open proceedings under s120 and to send copies of those documents to the other parties.
In person on 28 October 2008, represented by Mr Ring, agent, on 19 December 2008, no appearance on 20 January 2009.
In person on 28 October 2008. No appearance on 19 December 2008 and 20 January 2009.
I am going to make sure you have a copy of the offer and a copy of s112 of the VCAT Act and suggest Mr Matti get some advice about the effect of the offer.
I am satisfied that the Respondent made an offer to the Applicant on 3 October 2008 which was that the parties release each other and bear their own costs. The offer was expressed to be in accordance with sections 113 and 114 of the Victorian Civil and Administrative Tribunal Act 1998 and was in accordance with the provisions of those sections. The result, which was that the claim by the Applicant and the counter-claim by the Respondent were dismissed is, in my opinion, not more favourable to the Applicant than the offer.
Matti
Girstun
Matti’s claim and Girstun and Mecmejerski’s counterclaim were dismissed; Matti was ordered to pay Girstun’s costs from 8 October 2008, as agreed or assessed on County Court scale B, and the Principal Registrar was directed to send the parties the specified statutory materials.