1. Janette Morgan and David Morgan are to make available for collection by Glenn Roberts the fold-away bed installed by him at their premises which they replaced. The parties are to arrange a mutually convenient time for collection by 24 February 2016.

1. Janette and David Morgan are the applicants in XD 15/800 filed 3 July 2015 and Glenn Roberts is the substituted respondent to that application.
2. Mr Roberts is the applicant in XD 15/824 filed 30 July 2015, and Mr and Mrs Morgan are the respondents to that application.
3. For consistency and to avoid confusion in this statement of reasons, unless otherwise indicated, Mr and Mrs Morgan shall be referred to as the applicants and Mr Roberts as the respondent.
4. For the same reasons, unless otherwise indicated, the term 'application' means the applicant's application (XD 800/2015) and the term 'response' means the respondent's response to that application.
5. All prices expressed are inclusive of GST.
6. A reference to the 'tribunal' or 'ACAT' refers to the ACT Civil and Administrative Tribunal generally and a reference to the 'Tribunal' or the first person refers to the member who heard the matter.

1. The procedural background set out below is relevant to understanding what orders each party sought and the legal basis for their respective claims.
2. On 3 July 2015 the applicants filed civil dispute application XD 800/2015 against R.I.G. Consulting Pty Ltd.
3. On 30 July 2015 the respondent filed civil dispute debt application XD 824/2015 in which he claimed an amount of $9,796.00 from the applicants due under a contract.
4. As both applications relate to the same facts and dispute the ACAT dealt with the matters together.
5. On 1 September 2015 the ACAT set a timetable for the parties to provide material upon which they intended to rely at the hearing.
6. The timetable included a direction that the applicants must by 22 September 2015 give to the ACAT and each other party an amended application setting out the orders the applicants sought, if required.
7. An amended application was not filed but subsequent correspondence and discussion between the parties indicated that the applicants sought to amend the amount of their claim.
8. On 18 September 2015 the applicants applied to the ACAT to amend their application to substitute Glenn Roberts for R.I.G. Consulting Pty Ltd as respondent in proceedings XD 800/2015.
9. The ACAT decided in the interests of procedural efficiency to deal with the application to substitute the respondent at the substantive hearing. It was not a matter of controversy because the respondent had raised the issue of the correct identity of the contracting parties in the first instance.
10. At the hearing the applicants were represented by Mr Adam Thompson, solicitor. The respondent represented himself.
11. During the hearing some matters were agreed and consent orders were made.

1. The respondent is a builder and the sole director of R.I.G. Consulting Pty Ltd a company engaged in the business of building construction.
2. The applicants contracted with the respondent personally to do some non-structural renovations to their home.
3. It is not disputed that the terms of the contract and its specifications were contained in:
   • (a) three quotes dated 11 March 2015, 31 March 2015 and 14 April 2015 which provide particulars of the scope of the works;
   • (b) the written contract dated 14 April 2015; and
   • (c) the plan signed by the applicants on 14 April 2015.
4. The respondent's company was named as the respondent in the original application.
5. At the hearing it was not disputed that the applicants contracted with the respondent personally rather than his company and accordingly the parties consented to the respondent being substituted as the respondent to the application.
6. The original contract price was $40,034 payable by a series of progress payments.
7. Prior to the final progress payment an amount of $3,836.50 was deducted from the price because the applicants supplied some materials, making a revised contract price of $36,197.50.
8. The applicants paid a total of $26,401.50 to the respondent but withheld $9,796.00 from the final payment due to alleged defects and deficiencies in the respondent's work.
9. On 26 June 2015 the respondent notified the applicants that he was terminating the contract for non-payment of the final progress payment but maintained that the work was complete.
10. The applicants effectively claimed from the respondent the difference between the cost of rectifying the alleged defects and the amount they withheld from the final payment.
11. The respondent asserted:
    • (a) His work was of an acceptable standard, fit for purpose and in accordance with the contract specifications.
    • (b) He was not responsible for any design flaws in the work because the applicants did not rely on his expertise in this regard and were in control of design decisions.
    • (c) The applicants failed to comply with the dispute resolution process mandated by the contract and therefore lost any right to claim damages for breach of contract.
    • (d) The tribunal did not have jurisdiction to determine the application because the amount claimed exceeded the jurisdictional limit of $10,000.
12. In his debt application, XD 15/824, Mr Roberts claimed from the applicants the outstanding balance of $9,796.00 due under the contract.

1. The application was a civil dispute application within the meaning of section 16 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), being either a purely contract application under section 16(a), or a contract application combined with a section 16(g) debt declaration.
2. Section18 of the ACAT Act says:
   • (1) A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal's jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement - amounts over $10 000) allows the application to be made.
   • _(2) The tribunal's jurisdiction is limited to - _
     • (a) civil dispute applications claiming amounts of not more than $10 000; or
     • (b) in relation to debt declarations - applications for declarations for debts of not more than $10 000.
3. In order to consider the respondent's objection to jurisdiction I needed to first establish the orders sought by the applicants and the legal basis for those orders.
4. The applicants specifically sought orders for payment of $2,641.00 and an order for 'exoneration of outstanding debt to respondent of $9,796.50(sic)'.
5. What did the applicants mean by 'exoneration' of the debt?
6. According to the Macquarie International English Dictionary 'exonerate' has two alternative meanings[1]:
   • (a) To declare officially that somebody is not to blame or is not guilty of wrongdoing;
   • (b) To relieve somebody from an obligation or duty.
7. The distinction is important because if the applicants meant the first thing then they were disputing the debt and seeking the following types of orders:
   • (a) A declaration under section 16(g) that they are not indebted to the respondent for $9,796.00; and
   • (b) An order for contractual damages under section 16(a) for $2,461.00, being the difference between the cost of rectifying the alleged defects in the respondent's work and the debt claimed by the respondent.
8. The combined value of the orders described in paragraph 37 would be $12,437, $2,437 over the jurisdictional limit of the tribunal. In order to come within jurisdiction the applicants would be limited to a money order of $204.
9. If the applicants meant to convey the second meaning then they admitted they were obliged to pay the debt to the respondent but sought to offset it against the cost of rectifying the alleged defects. The resulting claim for the payment of $2,461.00 would be within the jurisdictional limit under section 18(2)(a).
10. Mr Thompson told the Tribunal that his clients had not had legal advice when they filed the application but had meant to seek both an order for payment of money and a declaration that they were not indebted to the respondent as alleged.
11. As intelligent lay persons without the benefit of legal advice it seemed unlikely that the applicants had turned their minds to the precise legal basis for their application but instead focused on the practical result they were seeking, that is to recover the difference between the cost of rectifying the alleged defects and the amount they owed the respondent under the contract.
12. I stood the matter down briefly to enable Mr Thompson to take further instructions as to the basis upon which his clients wished to proceed.
13. Mr Thompson was then able to tell the Tribunal that the applicants had decided to admit the debt claimed by the respondent and set it off against the cost of rectifying the alleged defects.
14. I found that by admitting the debt and not pursuing a debt declaration the applicants' claim was within the jurisdictional limit of section 18(a).
15. The applicants' admission also resolved the debt claimed against them by the respondent in his application XD 824/2015.

1. It was unclear how much the applicants were seeking from the respondent.
2. The application contained the following inconsistent information:
   • (a) Under the heading 'Remedy sought' the applicants asked for an order for $2,641 and an exoneration of outstanding debt to respondent of $9,796.50(sic)'.
   • (b) However in the 'Schedule of amounts claimed' they wrote an amount of $10,000 against the item 'amount claimed in dispute'.
   • (c) Under the heading 'Details of the dispute' the applicants provided a narrative of their claim and stated that they were abandoning an excess of $12,432.
   • (d) A document annexed to the application titled 'financial details', which provided particulars of the applicants' loss, was not consistent with any of the figures mentioned above.
3. The applicants did not file an amended application by 22 September 2015 as directed by the tribunal or at any time after that.
4. The Tribunal noted that material filed by the applicants on 30 September 2015 contained a statement to the effect that the cost of rectifying the respondent's defective work was $13,170.50. After the debt of $9,796 is taken into account that suggests the applicants were, at that stage, seeking a money order for $3,374.50.
5. On 21 January 2016 Mr Thompson sent an email to the respondent purporting to change certain particulars of the claim and the amount claimed.
6. At the hearing Mr Thompson sought to clarify the amount his clients were seeking as follows:
   • (a) The original application was for $10,000, notwithstanding that the money order sought was $2641 calculated on the basis of the cost of rectification less the amount outstanding under the contract.
   • (b) On 25 November 2015 at a subpoena hearing in XD15/824 Mr Thompson told the respondent that the applicants were 'reducing' their claim to payment of $5,239.00 calculated on the same basis referred to in sub paragraph (a).
   • (c) On 21 January 2016 by email Mr Thompson advised the respondent that the applicants were further reducing their claim against the respondent to payment $4,383.05 calculated on the same basis.
7. The respondent was understandably confused as to the applicants' position and told the Tribunal that before he received the email of 21 January 2016 he was expecting the applicants to offer to settle both proceedings on the basis that they pay him the sum of $5,300.
8. I observed that if the applicants wished to reduce the amount claimed then neither the respondent nor the Tribunal were likely to object but if the applicants sought to increase their claim, as they had done, then procedural fairness required that such variation be properly made and notified to the respondent.
9. I considered whether any of the material filed after the application could be treated as amending the application.
10. Section 10 of the ACAT Act sets the following requirements for an application, including an amended application:

(b) be in writing, whether with or without a registrar's help;

(c) state the reasons for making the application; and

1. Section 117 of the ACAT Act provides that if a form is approved under section 117 for an application, the form must be used.
2. Section 254(4) of the Legislation Act 2001 (ACT) gives the tribunal discretion to find a form valid even if it is not in the prescribed form if it substantially complies with the prescribed form.
3. I found that none of the material filed by the applicants, or any of the correspondence between the parties, could properly be construed, as amending the amount of $2,641 originally claimed and therefore I would cap any money order in favour of the applicants at that amount.

1. A party to a contract has the right to claim damages for loss suffered by them as a result of another party's breach of the terms of that contract.
2. Contractual terms can include:
   • (a) Express oral or written terms.
   • (b) Terms implied under the common law.
   • (c) Statutory guarantees under the Australian Consumer Law (ACL).
3. The respondent claimed the applicants lost their right to damages because:
   • (a) the written contract stipulated a mandatory dispute resolution process; and
   • (b) the applicants failed to comply with that process.

1. In particular the respondent said the applicants failed to notify him of the alleged defects in accordance with Clause 10 of the contract which provided for a 'defects liability period' of 90 days and stated:

If there is an outstanding defect or incomplete work, or the contractor becomes aware by instruction from the Owner's observations, of any defect or incomplete works during the defect liability period, the contractor must promptly return to the site and correct the defect or finalise the works. The obligation continues until the defect or the work is finalised and does not come to an end when the defects liability period is over.

1. The English Court of Appeal in Pearce & High Ltd v Baxter [1999] EWCA Civ 789; (1999) BLR 101, considered whether the failure by an owner to notify a builder in accordance with a defects liability clause in a building contract defeated his right to claim damages against the builder for defective work.
2. The Court found an owner retains their common law right to damages unless such a right is expressly, or by strong implication, excluded by the words of the contract.
3. However, the position in Australia may be different. In Turner Corporation Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378, the NSW Supreme Court refused to order damages for rectification to an owner, who had failed to notify the builder of defects within the defects liability period, even though his right to common law damages was not expressly excluded by the contract.
4. I was satisfied that the email correspondence submitted by the applicants supported their contention that they notified the respondent of the defects within the defects liability period and that he denied the work was defective.
5. I concluded that the applicants had substantially complied with the requirement to notify the respondent of defects before the expiration of the defect liability period and therefore were entitled to claim common law damages.
6. The respondent also argued that the applicants had failed to comply with the following procedure set out in Clause 13 of the contract headed 'Dispute Resolution':

If a dispute or a difference (the 'dispute') between the parties arises out of, or in connection with, this contract then either party may serve a notice of dispute (the 'Dispute Notice') or difference on the other which requires the representatives of the parties to meet within five working days and to make a bona fide attempt to resolve the dispute or difference.

If the dispute is still not resolved in 15 (fifteen) working days after the Dispute Notice is served, either party may refer the dispute or difference to mediation, MBA adjudication or arbitration unless otherwise agreed.

The costs of any mediation or arbitration shall be shared equally between the parties.

Any arbitration is to be conducted before an agreed arbitrator or an arbitrator nominated by the Executive Director of the Master Builders Association of the ACT........

1. The correspondence indicates that the applicants were open to resolving the dispute through mediation, but did not agree to the Master Builders' Association of the ACT (the MBA) as mediator.
2. Nevertheless the respondent attempted to engage the MBA through its representative Mr Hopkins to help resolve the dispute.
3. I accept the applicants' evidence that Mr Hopkins made it clear that he was unable to mediate because the respondent was not a member of the MBA.
4. At the hearing the respondent conceded he was not a member of the MBA but told the Tribunal he could use its dispute resolution services if he paid a fee, an option he did not pursue.
5. I found that Clause 13 was for the benefit of, and applied equally to, both parties and provided an optional mechanism for the resolution of disputes.
6. I concluded that neither party had engaged the Clause 13 process by referring the matter to an agreed mediator but, as that process was optional, their failure to do so did not stop them enforcing their rights under the contract.

1. In any event the terms of the written contract did not affect the applicants' entitlement to the protection of the consumer guarantees under the ACL, which are mandatory and cannot be excluded, restricted or modified by contract.[2]
2. The applicants are consumers within the meaning of he ACL because:
   • (a) The applicants normally reside in the ACT.
   • (b) The revised price under the contract was less than $40,000.
   • (c) Alternatively, if the original contract price of $40,034, rather than the amended contract price of $36,197.50, is determinative, the applicants would still be taken to be consumers because 'the services were of a kind ordinarily acquired for personal domestic or household use or consumption.'
3. The ACL provides consumer guarantees that services:
   • (a) will be rendered with due care and skill;[3] and
   • (b) any product resulting from the services, will be fit for a purpose that the consumer made known to the trader;[4]and
   • (c) will be supplied within a reasonable time.[5]

1. The applicants claimed that the respondent's work was either defective or unfinished as follows:
   • (a) The wardrobe and credenza drawers in bedroom one were sticking.
   • (b) The storage configuration in the built in wardrobe in bedroom one was not fit for purpose.
   • (c) The storage configuration in the built in wardrobes in bedrooms two and three not fit for purpose.
   • (d) The credenza top was not completed.
   • (e) The paint used on credenza top was not fit for purpose.
   • (f) The standard of painting throughout was not of an acceptable professional standard.
   • (g) The built in desk and drawer unit in bedroom two was not in accordance with specifications and the materials were not fit for purpose.
   • (h) The shelves on either sides of the window in bedroom two were not fit for purpose.
   • (i) The king single wall bed in bedroom two was not in accordance with specifications.
   • (j) The cost of the carpet more than agreed.
   • (k) The respondent had disposed of the applicant's freestanding chest of drawers against their express instructions.
   • (l) A wardrobe door was defective.

1. The applicants relied on their statements filed in the tribunal and their oral evidence at the hearing as well as:
   • (a) The documentary evidence of the contract referred to paragraph 20, and email correspondence between the parties.
   • (b) Quote from Chris van der Sterren from `Your Way Maintenance' (YWM) dated 19 June 2015 for rectifying carpentry.
   • (c) Letter from Chris van der Sterren dated 5 July 2015 admitted to evidence at the hearing and marked Exhibit A "1".
   • (d) Expert report from Peter Leary, Peak Consulting dated 29 September 2015, including photographs.
   • (e) Report of Brian Combridge regarding standard of painting 31 August 2015, including photographs.
   • (f) Quote from Jose Painting and Maintenance Service for repainting dated 30 June 2015 for $7,500.
   • (g) Quote from Walter Antioch EHM for repainting dated 16 July 2015 for $6083.
   • (h) Their own photographs.
   • (i) Quotes and other materials relevant to the king single wall bed, which I will refer to in detail later.
2. In addition to his statement filed in the tribunal and oral evidence given at the hearing, the respondent also submitted the documentary evidence of the contract referred to paragraph 21, email correspondence between the parties and his photographs of the work.
3. The applicants engaged and paid Mr van der Sterren to rectify the carpentry work as well as to remove the wall bed installed by the respondent and replace it with another they purchased.
4. At the time of the hearing the applicants had not arranged for the repainting.

1. It was not disputed that applicants told the respondent that the drawers in the wardrobe and credenza in the bedroom one would not open and close freely.
2. The respondent insisted that the drawers just needed some lubricant to run smoothly.
3. I prefer the evidence from Chris van der Sterren that he needed to disassemble the units and fit spacers to the sides of the wardrobes and credenza to create space for the drawers to slide freely.
4. I found the credenza and wardrobe in the bedroom one were not fit for purpose as they were not of an acceptable standard.
5. I further found that the applicants were entitled under the ACL to the cost of rectification by Mr Van der Sterren, having first notified the respondent of the defect and given him an opportunity to remedy.[6]

Storage configuration in wardrobe bedroom one

1. The plans stipulated that the wardrobe in bedroom one contain two hanging rails, one above the other, and a shoe rack underneath the rails.
2. When the wardrobe was installed the applicants discovered they were unable to hang two rows of clothes or fit their shoes underneath.
3. Mr Leary reported that:

The space allowed for two rows of hanging rails and one shoe rack is not adequate for the hanging of clothes into rows due to the restriction in the space between the thick shelf and the floor level.

1. The respondent claimed that as the configuration was in accordance with the agreed plans it was not his responsibility if it did not work as intended.
2. The Tribunal rejects the respondent's submission that the applicants were in control of the design process and he just did what they told him to.
3. The Tribunal prefers as more plausible the applicants' submissions that they told the respondent how the furniture should look and function but relied on his professional expertise and experience to achieve their aims, or to advise them if it was not possible to do so.
4. Mr van der Sterren was able to modify the wardrobe to provide two rows of hanging space by removing the shelf and moving the hanging rails but could not find space for a functional shoe rack.
5. The respondent also submitted that the wardrobe could be used as intended if the applicants only hung particular types of clothes and used particular hanging devices such as pull out racks or special hangers.
6. The Tribunal found that the applicants in requesting two hanging rails and a shoe rack in the wardrobe of the main bedroom clearly indicated their intended purpose was to hang two rows of clothing and store shoes on a rack underneath.
7. In the absence of any indication to the contrary the respondent should have inferred that they intended the wardrobe to store usual clothes in the usual manner that is on standard clothes hangers.
8. The Tribunal found that the interior configuration was not fit for the intended purpose.
9. The Tribunal further found that the applicants were entitled under the ACL to the cost of rectification by Mr Van der Sterren, having first notified the respondent of the defect and given him an opportunity to remedy it.

Wardrobe in second and third bedrooms did not fit clothes hangers

1. The applicants claimed that the wardrobes in the second and third bedrooms were too shallow to fit a standard clothes hanger.
2. The applicants provided photographs showing clothes hanging in the wardrobes which supported their contention.
3. For the same reasons as for the wardrobe in bedroom one the Tribunal found the internal configuration was not fit for purpose and the respondent was liable for the cost incurred by the applicants in having the defect remedied by Mr Van der Sterren.

1. At the hearing the respondent conceded that the contract (in his quote of 14 April 2015) specified that the top of the credenza was to be extended by a shelf but he had not completed the extension.
2. The applicants notified the respondent of unfinished work by email dated 3 June 2015.
3. The Tribunal further found that the applicants were entitled damages for the cost of rectification by Mr van der Sterren under the ACL and the express terms of their contract, having first mitigated their loss by giving the respondent an opportunity to remedy.

1. The applicants claimed that the painting to the top of the credenza was not of an acceptable standard because the respondent used water based rather than oil based paint.
2. They relied on Mr van der Sterren's letter dated 5 July 2015 in which he wrote:

...being a professional painter, by trade, I believe, you do not use water -based acrylics as a finish material on vertical and/or horizontal bench finishes. This is because the material cannot be constantly handled with our hands, due to the oils from our hands transferring to the surface of the materials making it unattractive and greasy in appearance. I have, in the past, used this material in areas where there is high handling and this paint has always been inferior.

1. The respondent admitted he had used water-based enamel paint, saying, 'these days (such paints) are designed for all horizontal and vertical surfaces'. He also told the Tribunal that the industry was moving towards water based paints, as they were more environmentally friendly than oil based ones.
2. I formed the view that the most which could be drawn from Mr van der Sterren's comments was that oil based paints were preferable in this situation, but not that water based paint were of an unacceptable standard.
3. As I was not satisfied on the evidence that the paint used was not of acceptable quality I refused the applicants' claim for this item.

1. The applicants notified the respondent of their dissatisfaction with the general standard of the painting on the walls and ceilings by email on 19 June 2015:

In addition to all of these above issues we are also of the opinion that the painting is of a sub-optimal quality and requires further finishing. We are prepared to forgo this requirement if you accept our offer.

1. The applicants assert that the painting was patchy and not properly cut in around the junction between wall and ceiling, the trim and the light fittings.
2. Mr Combridge, who is a qualified painter, inspected the property on 26 August 2015 and provided a report which particularised the standard of painting. He concluded:

It is our opinion that this paint job has not reached a professional standard and requires significant preparation and repainting.

1. The respondent asserts that the work was of an acceptable standard and that if there were any deficiencies they were attributable to the poor quality of the underlying surface due to the age and condition of the building.
2. The Tribunal prefers the evidence, including the photographs, of the applicants and Mr Combridge and finds that the painting was not of an acceptable standard.
3. The Tribunal further found that the applicants were entitled to damages for the cost of rectification under the ACL, having first given the respondent with an opportunity to remedy.
4. I found the reasonable cost of the rectification was the amount of $6,083 quoted by Mr Antioch being the lower of two quotes provided by the applicants.

Built in desk and drawer unit in second bedroom

1. The applicants claimed that the desk and drawer unit built by the respondent in the second bedroom was defective in the following ways:
   • (a) The split level desk top was not in accordance with the agreed design resulting in an inferior appearance and structural strength.
   • (b) Inferior material was used for the desktop which was not self supporting necessitating the use of brackets.
2. The original plan specifies a built in desk along the entire length of one wall created by a continuous level desktop supported underneath at each end by a four drawer unit.
3. The original plan also specified that the top of the desk would be above the windowsill, which the respondent conceded at the hearing was neither aesthetically nor functionally desirable.
4. I was satisfied that the parties did not intend the desktop to be higher than the windowsill and it would not have been readily apparent to a lay person looking at the plans.
5. The respondent altered the design without consulting the applicants by lowering the central desk area below the height of both the windowsill and the top of the drawer units at either end thereby creating a split-level effect.
6. The alteration also resulted in the desk no longer being supported by sitting on top of the drawer units at each end, instead it was attached to drawer units at the sides by way of horizontal fixings.
7. The respondent told the Tribunal he altered the design to accommodate a pull out shelf subsequently requested by Mrs Morgan.
8. The respondent said he decided to increase the height of one the drawer units to house the additional pull out shelf and, to make the unit more symmetrical, raise the other drawer unit to match and drop the central desk area.
9. The applicants claimed that the brackets used by the respondent were too short to provide sufficient support for normal use.
10. They also claimed that the brackets were ugly and could have been avoided entirely if the respondent had used material for the desktop of sufficient thickness to be self-supporting.
11. The respondent said that the material used was suitable and that he always intended to support the desktop with one bracket but added another one after Mrs Morgan told him she wanted to be able to stand on the desk.
12. The Tribunal found that the desk, although fit for purpose, was substantially different in appearance to the design contracted for. Therefore the applicants were entitled to claim the cost of having it rebuilt by Mr van der Sterren as originally intended.

Window shelves in second bedroom not fit for purpose

1. The applicants claimed that, at the respondent's suggestion, they agreed that the two wall shelves be built on either side of the window in the second bedroom to hold A4 folders.
2. The respondent did not recall any discussion as to the purpose of the shelves.
3. The shelves built were not big enough to accommodate A4 folders and were not adjustable.
4. I was not satisfied on the evidence that the applicants' purpose was made known to the respondent.
5. In any case the applicants admitted that when Mr van der Sterren modified the shelves to make them adjustable to fit A4 folders he also relocated them to another wall.
6. The cost of the relocating the shelves was included in Mr van der Sterren's quote.
7. I found that the applicants were not entitled to recover either the cost of making the shelves adjustable or of relocating them.
8. The respondent estimated that the cost of making the shelves adjustable and relocating would be between $100 and $135. Due to the respondent's knowledge and experience, and in the absence of any evidence to the contrary I found this estimate reasonable.

Non standard king single bed installed in bedroom two

1. It is not disputed that the original plans provided for a double bed in bedroom two but that the parties subsequently agreed that a king single wall bed be installed instead.
2. Mrs Morgan intended to use to use a standard king single mattress she already owned thereby saving her the cost of purchasing a new mattress.
3. The respondent sourced a wall bed from Canada and installed it.
4. Once installed it was found to be too small to accommodate Mrs Morgan's king single mattress.
5. The applicants say that the wall bed installed was not a standard king single and therefore was not as agreed, and that further it was not fit for purpose as it did not fit the standard mattress Mrs Morgan already owned.
6. The respondent admitted the bed did not fit the mattress but argued that there is no such thing as a standard mattress size.
7. The applicants argued that because the bed installed was larger than a single bed but smaller than a double bed it fitted the description of a king single bed.
8. To illustrate his point the respondent referred to the example of IKEA, which, he says, despite using common descriptive terms such as 'Queen' and 'Double', sold mattresses with dimensions unique to their business.
9. The respondent conceded that not even the manufacturer of the wall bed described it as a king single. All their beds being described by actual dimensions.
10. The applicants asserted that there were commonly accepted Australian standards for mattress sizes and produced the following evidence:
    • (a) Material from website of a Sydney based business, Space Maka, which installed wall beds. The company used the common descriptive terms for beds - but did not supply king beds.
    • (b) A quote from Bed Space Design, a Brisbane based company, for the supply and installation of a 'King Single Wall Bed' for $1,560.00.
    • (c) A document from Makin Mattresses titled 'Australian Standard Mattress Sizes' which indicated that the standard size for a King single is 1070 x 2030mm.
    • (d) A quote from Makin Mattresses for $1145 (excluding delivery) to make a custom sized mattress, including a "special size fee'.
11. When asked how the applicants could find a replacement mattress to fit the bed he installed, the respondent told the Tribunal that they could buy one from the manufacturer in Canada, or have one custom made by Makin Mattresses at a price about 50% greater than that of a standard mattress.
12. I was satisfied that there was an Australian commercially accepted standard size for a king single mattress which enabled customers to buy off the rack bed linen and mattresses with confidence they would fit.
13. Whether or not Ikea follows this local commercial practice is a matter for them and their customers but does not affect the general proposition.
14. I further found that the respondent was in breach of his contractual obligations to both supply the type of bed agreed upon, and that it be fit for purpose.
15. The applicants were entitled to recover the cost of buying a replacement bed and having Mr van der Sterren replace the bed installed by the respondent.
16. I determined the cost of rectification to be $2245 comprised of:
    • (a) The cost of king wall bed of $1860 based on the invoice from Bed Space Design dated 13 July 2015 filed by the applicants; and
    • (b) The cost of removal of the existing wall bed and installation of new bed based on the price charged by Mr Roberts to install the original wall bed, that is $385.
17. The applicants were ordered to make the wall bed removed by Mr van der Sterren available for the respondent to collect.

1. The quote dated 14 April 2015 provided for the supply and installation of carpet to bedrooms one, two and three.
2. A lump sum was quoted for each bedroom, which included supply and installation of the carpet as well as other work in that room.
3. For each bedroom the following formula was used:

_Supply and lay carpet on gold underlay to bedroom to select by client approx.......(_varied according to which room) and PS at $65 per sq metre.

1. The carpet selected by the applicants was $63 per square metre.
2. After the carpet supplier measured the area they came up with a quote, which was greater, by $396, than the applicants' calculations based on the quoted formula.
3. The Tribunal found that the amount allowed for the carpet in the quote was a provisional sum and as such was an estimate only and was subject to the actual amount charged by the carpet supplier after measuring.
4. For that reason I did not allow this item.

Cost of replacing chest of drawers disposed of by respondent

1. The applicants claimed an amount of $200 for the cost of replacing a freestanding chest of drawers they say the respondent threw out against their express instructions.
2. There being no objective evidence of what was agreed I found the applicants had not discharged the onus of proving there was a shared understanding between the parties regarding the chest of drawers. I was satisfied that the applicants' chest of drawers was thrown out as a result of a genuine misunderstanding.

1. I have also disallowed the claim in relation to a wardrobe door and a claim for $5.05 for postage because the respondent was only notified of these on 21 January 2016.

1. I calculated the total cost of rectification at $12,579.00 as follows:
   • (a) $4,251 for cost of rectifying defective carpentry- based on YWM quote of $4,371 less $120 attributable to the estimated cost of relocating shelves in bedroom two referred to in paragraph 137.
   • (b) $2245 for cost of removal, supply and installation of single king wall bed in bedroom three.
   • (c) $6,083 for painting
2. The cost of rectification when set off against the admitted debt to respondent of $9796.00 comes to a net figure of $2,783.00.
3. For the reasons explained at paragraph 58, I capped the order in favour of the applicants at $2,641.00, plus the fee for filing the application.

[1] Macquarie International English Dictionary (Bloomsbury Publishing PLC, 1999)

[2] Competition and Consumer Act 2010 (Cth) sch 2 s 64

[3] ACL, s.60