1. The applicant's claim was brought pursuant to Schedule 2 of the Competition and Consumer Law Act 2010 (Cth) ('ACL') which forms part of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
2. The application concerned various claims under the ACL in respect of engineered flooring. Briefly described, the engineered flooring that was the subject of this application was lengths of chipboard of approximately 11 mm thickness with a veneer of patterned wood of approximately 3 mm attached top of it. These lengths were engineered to look like solid wood floorboards.
3. In his application, the applicant alleged:

(a) The flooring was not of acceptable quality.

(b) The flooring was not of acceptable finish or appearance.

(c) The flooring was not free from defects.

(d) The flooring was not for all the purposes for which such goods are commonly supplied.

(e) The flooring was not fit for a purpose made known to the seller.

(f) The flooring was not safe.

(g) The flooring did not correspond to its description.

(h) The flooring did not correspond to a sample seen before it was supplied.

(i) The goods or services were not what the supplier promised.

(j) The manufacturer of the goods has not complied with the manufacturer's warranty.

(k) The flooring suffered from a major defect.

1. The applicant named the respondent which is a retailer of the flooring. As has been outlined below, the applicant's evidence was that he relied upon representations allegedly made (or not made) by representatives of a third-party wholesaler of the flooring which was not named as a respondent by the applicant, known as Ozworld Timber Flooring ('Ozworld').
2. The named respondent did not bring a counterclaim against, or seek to join, Ozworld. The Tribunal is of the view that it was the applicant's obligation to name/join the correct parties, particularly in circumstances where specific allegations were made about representations/conduct of Ozworld.
3. Neither party filed expert evidence of any kind. Both parties relied upon their respective experience, but neither were experts and neither were independent.
4. The following facts were alleged:

(a) In April or early May 2023, the applicant contacted Ozworld. He spoke to a then employee of Ozworld about the flooring. On his evidence, he was told the flooring came in 1,900 mm lengths with a square-edged coating. These facts were not contested by the respondent but that related to matters which it said it could neither confirm nor deny because none of its representatives made or observed these representations.

(b) The respondent's position was that it directed the applicant to contact Ozworld regarding any queries regarding the specifications of the flooring because the respondent did not have any such specifications itself, even having a website at that time. The applicant did not dispute this.

(c) At around that time, the applicant accessed the webpage of Ozworld and found a page dealing with the product specifications of the flooring which weas described to come in 1,900 mm lengths. The information on Ozworld's website did not state that the flooring was in "packs" which included shorter lengths of flooring known in the industry as "nested wood" or "shorts". These facts were not contested by the respondent but, again, it said that they related to matters which it could neither confirm nor deny because none of its representatives made or observed these representations. The applicant did not dispute this.

(d) It was not in dispute that the applicant subsequently bought the flooring from the respondents (being a wholesaler, Ozworld could not sell the flooring directly to member of the public), nor was it in dispute that the respondent had not made any pre-contractual representations regarding the flooring.

(e) Many months later, after the applicant had bought the flooring and raised a dispute, Ozworld changed the specifications/information regarding this flooring on its website so as to note that the packs included shorts.

1. From subsequent enquires, the applicant was informed that up to 25% of the flooring was made up of shorts, although he stated that the shorts in the packs purchased by him made up an amount lower than 25% (being about 21% of the flooring). It was not suggested by the applicant in his evidence that the packs contained a lesser amount of flooring than he paid for, rather it was alleged that the shorts made the total amount of flooring less useable because, as the applicant's case went, there would be a greater level of wastage of flooring.
2. The applicant alleged that a further approximately 20% of the flooring was defective because of the use of the resins and/or because those parts of the flooring were splitting. This is why the applicant, in his application, sought an amount approximately equivalent to 40% of the entire purchase price of the flooring.
3. The applicant's evidence was that he still intended to use the flooring, despite raising issues with the safety and suitability of it in his claim. While his application sought a refund and damages, in his oral evidence, he sought additional flooring (or compensation to that end) commensurate with the loss he said he suffered in relation to the shorts and defective flooring.
4. The uncontested evidence of the parties was that open offers for a full refund had been made by the respondent to the applicant on multiple occasions. These offers were made on the condition that the flooring was returned in its entirety to Ozworld. The applicant had not accepted these offers.

1. At the commencement of the hearing, the Tribunal informed the parties of the evidentiary onus on the applicant to make out his claim both in respect of proving one or more breaches of the ACL and in respect of proving loss. The Tribunal informed the parties that the relevant standard was the balance of probabilities proof being on the basis of the filed documentary evidence and the oral evidence adduced at the hearing.
2. The following allegations (some of which were somewhat duplicated in the application) wholly concerned allegations against or involving Ozworld alone. For this reason, each was dismissed:

(a) The flooring was not fit for a purpose made known to the seller (no purposes were made known to the respondent).

(b) The respondent has not complied with its warranty (no warranty was alleged to have been provided by the respondent).

(c) The flooring did not correspond to a sample (the respondent was not alleged to have shown or provided any sample).

1. The remaining allegations, at least as they were set out in the application, concerned issues of the quality of the flooring. The allegations, put simply, fall under two headings:

(a) Because the flooring provided in the packs comprised a percentage of "shorts", the flooring was less usable and that this amounted to a breach of the ACL ('shorts allegation').

(b) That the flooring, due to its composition and/or finish, was defective ('defects allegation').

1. The Tribunal was required to put itself in the position of a reasonable consumer. The consumer in this case was a so called "DIY" (ie do-it-yourself) operator.

1. On one view of the law in this area, it may have been open for the Tribunal to peremptorily dismiss the substance of the shorts allegation because Ozworld was not named as a respondent. For example, regarding the not fit for a purpose made known ground, the parties both agree that there were no substantive communications made between them prior to the purchase of the flooring. Ozworld alone fielded any and all such queries and/or communicating the specifications of the flooring.[1]
2. The Tribunal did not adopt this course. The Tribunal considered the shorts allegation fully and found that the various claims advanced as part of it had not been substantiated.
3. The Tribunal was not persuaded that the supply of shorts with the flooring rendered the flooring to be:

(a) Not of acceptable finish or appearance.

(b) Not fit for purpose.

(c) Not free from defects.

(d) Otherwise, supplied in breach of the ACL, as alleged.

1. Shorts are part of the industry standard for flooring and a reasonable consumer professing to have DIY skills would be aware of this. The joints for contiguous boards will be spaced and there will inevitably be a need to cut lengths to ensure that they are properly spaced. The applicant himself, in his evidence, referred to the need to cut flooring lengths when it is installed. The Tribunal did not accept that, had each length of flooring been 1,900 mm in length, there would have been substantially less wastage of flooring, nor any measurable difference in ascetics.
2. Even had the Tribunal been satisfied that the applicant had proven a breach of the ACL in respect of the shorts allegation, it would not have accepted that the breach had been the cause of any compensable loss. The system for flooring necessitating the use of shorter lengths of flooring for any reasonable installation, so as to not have joints running next to each other.

1. The defects allegation concerned a claim that the flooring was defective because it contained resins and, separately, because some of the flooring was splitting.
2. The applicant relied upon the Australian Standards in making out the splits aspect of this claim and filed small, incomplete screenshots of the Australian Standards to assist his claim. The Tribunal did not find these excerpts of the Australian Standards materially relevant to resolving the defects allegation.
3. The splits alleged were said to be in the veneer of the flooring, not in the chipboard under the veneer. The portion of the Australian Standards filed dealt with splits to actual boards and not veneer. The Tribunal was not satisfied that any splits in the veneer constituted a breach of the ACL.
4. The Tribunal was not satisfied that the use of resins gave rise to a proven breach of the ACL. Further, the Tribunal did not accept that the absence of a reference to resin in the specifications of the flooring on the Ozworld website prior to the flooring being purchased established any breach of the ACL.
5. Even had the Tribunal been satisfied that the applicant had proven a breach of the ACL in respect of the defects allegation, it would not have accepted that the splits or use of resin had been the cause of any measurable compensable loss.

1. For these reasons, the Tribunal dismissed the application.

[1] For completeness, no allegation of false or misleading representations was made.