1. Ms Wojceich's claim in proceeding C17/2024 is dismissed.
2. A separate Order is made today in C5199/2024, to the effect that Ms Wojceich must pay Mr Paul Kelly $4,000.00 on his claim and $342.90 in reimbursement of the filing fee on that proceeding.

1. Before the hearing, commenced in earnest I gave the parties the opportunity to have a discussion on a without prejudice basis to see whether they could resolve this dispute. Both declined.
2. Ms Wojceich finished renovating her two storey house in 2023 and was pleased to be in a position to get new carpet laid. She visited many retailers and saw many samples. The colour scheme of her renovated home lent itself to carpet in a brown tone.
3. After seeing samples from shops who would charge in the order of $9,000.00 to supply and lay carpet, Ms Wojceich went to Mr Kelly's shop. She saw some samples. Mr Kelly gave Ms Wojceich some samples to take away and to consider in her home.
4. On 22 November 2023 Ms Wojceich selected her desired carpet at the respondent's shop, and Mr Kelly filled in a tax invoice setting out Ms Wojceich's name and address, and recording the carpet as follows: 'To supply and lay Compass Point 585 to bedrooms 1 2 3 4...' all of which were upstairs, and in some downstairs rooms.
5. Compass Point Stipple 585 is the name of a colour of cut pile twist carpet manufactured by Godfrey Hirst Australia Pty Ltd. As I state below, samples were brought to the hearing and I am confident in saying that the samples were in a brown tone. I would describe the colour as a 'warm tan'. It was certainly not 'chocolate brown'.
6. The respondent invoiced Ms Wojceich $6,280.00 for the laying of the carpet, and Ms Wojceich paid a deposit of $2,280.00.
7. Carpet was laid upstairs.
8. Ms Wojceich paid the $2,280.00 after the carpet was laid upstairs. She said that she had not seen the carpet on the upstairs floors when she paid the $2,280.00, because the carpet that was to be laid downstairs was still in a roll on the staircase, preventing her entry upstairs.
9. Days later Ms Wojceich contacted the respondent and said that it had laid the wrong carpet, namely a carpet that did not accord with the sample she had seen. The respondent insisted that it had. Ms Wojceich instructed the respondent not to lay any further carpet. She demanded a refund of the $2,280.00, and required the respondent to remove the carpet it had laid. The respondent refused to meet this demand and in due course issued its counterclaim for the balance of $4,000.00.
10. So, by the time of the hearing Ms Wojceich had carpet laid upstairs that she finds unsatisfactory because she considers it to be grey. No other carpet has been laid and so that aspect of her renovation is incomplete. Mr Kelly is out-of-pocket for the carpet already laid, and still holds the carpet which he was prevented from laying.
11. The dispute between the parties does not turn on the terms and conditions of the contract. There is no doubt that the document which the respondent prepared and which Ms Wojceich signed specifies the carpet to be laid as Compass Point 585. The word 'stipple' refers to the inclusion in a carpet of some fibres in a colour other than the main colour. It is insignificant in this dispute.
12. Ms Wojceich has filed some photographs, electronically, with the Tribunal. She also brought her mobile phone to the hearing and some photographs were stored on the telephone. Her daughter also brought her mobile phone into the hearing room and showed one photograph stored on that phone, which she said was taken in a room upstairs. It shows the sun shining in through a window onto the carpet. The daughter's photo depicts the carpet as being grey. The photographs shown by Ms Wojceich from her telephone showed the carpet as being brown. Perhaps the difference is brought about by filters or enhancements created by the mobile telephones and the bright sunshine in the daughter's photo.
13. In the hearing Ms Wojceich suggested that the sample of the carpet that she saw in the respondent's shop was from a batch manufactured in May 2018, whereas the carpet laid in her house had been made in March 2021. She suggested that the batches were in different colours, and that because they varied by at least 10%, Godfrey Hirst dated the samples - hence May 2018 and March 2021 appearing on stickers on the back of the carpet.
14. Ms Wojceich brought several samples in 'floor mat size' of brown carpets that she had obtained from other retailers before entering the contract with the respondent.
15. Mr Kelly brought in a sample book of about 10 small pieces of carpet (say, 20 cm x 40 cm) and one larger sample in a 'floor mat size'.
16. On the back of both the small and larger samples brought by Mr Kelly, were stickers identifying Godfrey Hirst as the manufacturer; 585 Summit stipple as the colour; and at the bottom right corner the expression 'May18'.
17. Ms Wojceich said that she had not kept the sample which the respondent had given her, and which she had 'ordered off". She was adamant that the sample she saw had been brown and that the carpets laid were grey. She then asked her daughter to go to their car and bring in another sample, which the daughter did.
18. Ms Wojceich said that she had purchased the sample brought into the hearing room by her daughter from another retailer for about $10.00 in early 2024, around the time she issued this VCAT case. This sample had a sticker on the back which identified Godfrey Hirst as the manufacturer; 585 Summit stipple as the colour; and at the bottom right corner the expression 'Mar21'.
19. We placed the samples next to each other on the Bar table in the hearing room, and I confidently say that the three samples were all of the same colour. They were identical.
20. Ms Wojceich sought to argue that Godfrey Hirst had assisted the respondent to hide the respondent's mistake, by affixing the 'May18' sticker to a sample which did not match the sample she had relied on. Whilst it was difficult to follow her line of reasoning, the assertion was essentially one of fraud and it is well-known that a person alleging fraud must be specific in setting out the allegation, and that they bear a higher standard of proof than the normal civil standard of the balance of probabilities. I could certainly not reach a conclusion that Godfrey Hirst had sought to improperly assist Mr Kelly.
21. When the parties' dispute first arose, Ms Wojceich telephoned Godfrey Hirst directly and asked it to inspect the carpet. Godfrey Hirst did so on 11 December 2023 and it issued a written report number 111571 which said -

As requested, we have attended and inspected the above installation. [ Ms Wojceich] showed us the carpet in the upstairs area where she believes the carpet is not the colour she had ordered. The carpet does appear to be different shades depending on the light source and direction the carpet is viewed from. The store sample was taken on site and the installed carpet is within tolerance compared to the selling sample. [ Ms Wojceich] stated the sample of the same carpet she had taken on site was darker than the one the store had supplied us. The installed carpet was also checked against our production standard and was well within tolerance.

As set out in the manufacturer's Carpet Maintenance and Guarantees booklet and on sample labels, carpet will show minor colour or texture variation from selling samples or between production runs and dye lots. The manufacturer's formal quality assurance program (which is ISO9000 accredited) seeks to minimise potential for variability and ensure any variation is within recognised textile industry standards. Colour or texture appearance can also vary depending upon the type of light under which a sample is viewed and the light sources where the carpet is installed.

Conclusions/Recommendations The colour and texture of the carpet appears to be within normal tolerances. Consequently, Godfrey Hirst does not intend taking any further action.

1. Ms Wojceich is unhappy with this report.
2. Mr Kelly said that the only samples he had ever had in his shop of the 585 Summit stipple were the ones it brought to the hearing, and that whilst he noted that the stickers on the back of those samples said 'May18' he did not regard that information as relevant.
3. Mr Kelly also said that he does not use any 'sales pressure techniques' with potential customers. He gives advice on the specifications of the carpets in relation to customers' expected uses but does not give advice on colour. He allows potential customers to take samples away so that they can see them in their homes. Ms Wojceich at this point said she appreciated that colours can appear to be different between small samples and large areas of carpet. Mr Kelly said he unrolled 5 m of the carpet in the store's warehouse for Ms Wojceich to look at, before she placed her order.
4. There is no suggestion by Ms Wojceich that Mr Kelly's workmanship in laying the carpet was at all defective. Her sole complaint and allegation is that the wrong coloured carpet was installed.
5. Ms Wojceich issued the first proceeding. As with any litigant bringing a claim, she has the burden of proof. I am not satisfied on the balance of probabilities that Mr Kelly installed the wrong carpet. I find it to be more likely than not that Mr Kelly supplied and laid 585 Summit stipple, which was what Ms Wojceich had selected and which was recorded on the invoice.
6. Because it is not otherwise alleged that the carpet was defective, or that the workmanship in its installation was defective, it follows that Ms Wojceich's claim for $2,280.00 must be dismissed.
7. As to Mr Kelly's claim, he still holds the carpet that he was ready to install on the ground floor. He is ready, willing and able to install the carpet. Ms Wojceich must pay Mr Kelly the $4,000.00 balance due under the contract. Upon Mr Kelly receiving that sum, he must install the carpet.
8. Occasionally in VCAT cases where the result is an order where one side must pay money and the other side must perform an obligation such as returning some goods, one or both of the parties refuses to comply with an order. There is a risk that Ms Wojceich will refuse to pay the $4,000.00 because she does not want the 'grey' carpet. Similarly, Ms Wojceich might say that she refuses to pay the $4,000.00 because she does not trust Mr Kelly to install the remaining carpet after he is paid that sum. I encourage the parties to comply with the Tribunal's orders in both proceedings. I have deliberately not made orders which provide that Ms Wojceich must only pay the $4,000.00 if she "allows" Mr Kelly to install the balance of the carpet, because if she refuses to allow Mr Kelly to lay that carpet he might be left with some carpet which is unsaleable to anyone else and which is therefore of no value to Mr Kelly. Section 120A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) empowers the Tribunal to make further orders in a case in aid of enforcement, and I would counsel the parties to consider that section before they even contemplate failing to comply with the Tribunal's order.
9. Finally, because Mr Kelly has substantially succeeded in his proceeding C5199/2024, I will order Ms Wojceich to reimburse to him the filing fee on that proceeding.