VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C5596/2022
CATCHWORDS	
Claim for construction of fence and other work partially successful. Majority of claim dismissed because work not carried out with due care and skill – section 60 Australian Consumer Law.	

APPLICANT	Echelon Property Group Pty Ltd ACN:147 034 955 atf S & M Butera Family Trust	
RESPONDENT	Tourco Pty Ltd ACN:006 835 267	
WHERE HELD	Melbourne	
BEFORE	Member R Daly	
HEARING TYPE	Hearing	
DATE OF HEARING	17 June 2024, 28 October 2024 and 13 January 2025	
DATE OF ORDER	6 June 2025	
CITATION	Echelon Property Group Pty Ltd atf S & M Butera Family Trust v Tourco Pty Ltd (Civil Claims) [2025] VCAT 505	

Order
1	The respondent must pay the applicant the sum $550.00.

R Daly
Member			

APPEARANCES:		
For Applicant	Ms S Butera, director 	
For Respondents	Mr C Di Mase, director	

Reasons
1	This is an application by Echelon P/L (Echelon) against Tourco P/L (‘Tourco’) for $2,585.00 for payment of unpaid costs for a fencing and demolition contract.
2	The application was part heard on 17 June 2024, 28 October 2024 and 13 January 2025. The parties concluded their evidence on 13 January 2025 and the matter was adjourned to enable the parties to make submissions. The Tribunal received written submissions from both parties and the following is the Tribunal’s reasons for decision.
EVIDENCE
3	Ms Sarah Butera (‘SB’) gave evidence and made submissions, including written submissions on behalf of Echelon in her capacity as director of the company, and her uncle, Mr Joe Butera (‘JB’), a subcontractor who completed the work gave evidence as a witness.
4	Mr Carmine Di Mase (‘CD’) gave evidence and made submissions on behalf of Tourco in his capacity as director of the respondent company, and his son, Mr Patrick Di Mase (‘PD’), the owner of the residence where the work was carried out gave evidence as a witness.
5	Both parties filed material in support of their respective claims, and I refer to any relevant material throughout my reasons for decision.
Mr Butera Evidence
6	JB said he is a sub-contractor not an employee of the respondent Echelon. JB said he has 25 years of experience in the building industry including building and repairing fences, including picket, paling and Colorbond fences. He said he has no formal qualifications as a builder but is self-taught.
7	JB stated that the information contained in the VCAT application filed 15 September 2022 is true and correct.
8	JB said he received a request by phone from PD on 12 August 2022 to quote for two jobs – repair and installation of PD’s fences and demolition works. JB said PD told him the work was to be done at PD’s newly built home in Pascoe Vale. 
9	JB said he spoke with PD in his capacity as a representative of Echelon. JB said he sent quotes for the two separate jobs, the first job was to remove and replace two new timber paling fences on each side of the rear western and eastern boundary of PD’s property and to replace a Colorbond panel on the rear boundary of the property. He said the second job was to complete demolition, excavation and removal of soil and rubbish from the front boundaries of the property.
10	JB said quotes for each job was sent by text to PD on 12 August 2022. He provided a copy of each quote. The first quote for the fencing work was for $2,034.00 including GST and the second quote for the demolition work totalled $11,000 including GST. He said after sending the quotes PD asked him to meet at his property on Sunday 14 August 2022 to discuss the quotes. JB said he met with PD and CD on site on 14 August 2022 to discuss the quotes. After some negotiations about further work requested by CD, he said PD and CD agreed verbally to the original quoted price. 
11	The first quote states: 
Remove and replace two new fences. One with two sleeper at a height of 2200 high, the other at 2000 mm heigh. Repair colorbond fence panel.  Remove all rubbish of site.
The second quote states:
Excavation work as per engineer plans. Remove all soil off site. No allowance made for fencing.
12	JB said the quotes were not signed by a representative of the company Tourco but that it was clear there was verbal agreement by PD to do the work for the price quoted and for the quote to be sent to the company Tourco.
13	He said it was agreed that the work would start on Tuesday, 16 August 2022 but on the morning of Monday, 15 August 2022 JB said he contacted PD to advise that he could start the job on Monday and that PD agreed to him starting the job a day early. He said PD gave him the key safe code so he could access the property on Monday which he did.
14	JB said neither PD nor CD ever indicated to him that CD was the relevant person with authority or that PD did not have authority to enter into a contract on behalf of Tourco. 
15	JB said the fence work was completed to a satisfactory standard and in accordance with the terms of the agreement made with Tourco both verbally and as set out in the first quotes which PD agreed to on behalf of Tourco. Both JB and Mr CD drafted a diagram of the property during the hearing including the boundaries of the property.
Re Colorbond Panel
14	JB said he repaired the single panel of the missing Colorbond fence at the rear of the property by securely reaffixing the existing Colorbond panel. He said PD asked whether he could also straighten the entire Colorbond fence, but JB said he explained to PD  that such work was not within the scope of the quote because it would require a day’s work including removing dirt from the foot of the fence between the fence and a concrete slab.
15	JB provided a photo of the gap between the Colorbond fence and the concrete slab. JB said PD started to remove the dirt but JB told PD to stop digging because it was not within scope of the quote and PD would need to agree to pay for this job which he estimated to be up to $1,000 because he would need to strengthen the Colourbond fence. JB explained that this is because PD said he intended to fill the gap between the fence and the slab with soil which was about 400 mm in depth.
Re Timber Paling Fence
16	JB said he removed and replaced the timber paling fences at the rear western and eastern boundaries of the property with new cypress pine hardwood posts and pine palings at the heights quoted, namely 2 meters and 2.2 metres. JB explained each step taken to complete this work. He said he dug holes for each of the two posts to a depth of 550 mm. He said he notched out each post in 3 sections to allow for the railings to be securely attached. He said he also cut the posts at the top at an angle so that any water would run off. 
17	JB said if the fence boundary was longer, he would have done the job differently using concrete that takes approximately 3 days to dry. However, he said because it was only a small job with a shorter length of fencing, he used a rapid set concrete which allows the concrete to dry faster (in 30 minutes to 1 hour) because it contains additives. JB said he recommended to PB that he attach each of the timber fences to the brick wall of the home with cleats to strengthen the fences. However, he said PD said he didn’t want him to attach anything to the newly built brick wall.
18	JB said not long after pouring the dry rapid set concrete into each post hole and adding water, PD and CD attended to inspect the work. He said CD was immediately unhappy with the job stating, “look at this, this is not what I expected”. JB said he noticed that PD was shaking the fence. He said he asked PD to stop shaking the fence because he was disturbing the newly poured concrete which was holding the fence in place. He said he was concerned that any defects CD has claimed would have been caused by loosening the posts before the concrete had set.
19	He said the conversations between him, and CD and PD escalated, and they became verbally abusive. He said CD told him to leave the site. He said words to the effect “get out of here and don’t come back” and therefore JB assumed he would not be coming back to complete the second job.
20	JB disputed claims made by CD that the fence was not structurally sound because he had failed use well known common practices adopted by builders and fencing contractors that paling fences are built between two end posts with further posts installed in between the two end posts. JB said this was only one method of constructing a fence but not the only method and that it was not needed for this job. He said this is because the 900mm overhang on each side of the intermediate fence posts are structurally sound because these sections are self-supporting when nailed on to give structural bracing support to the fence.
Claim for second quote
14	JB said he commenced some work towards the second quote for the excavation by removing rubbish from the neighbour’s property and PBs property and by removing the existing fences and this work cost $350. He provided a copy of an invoice for this cost that he said was sent to Tourco but has not been paid.
15	JB concluded his evidence stating all his work was done to an acceptable standard and that he did what he was contracted to do which was to replace the Colourbond panel. He denied there was any agreement to straighten or strengthen the Colourbond fence. He said he also replaced the paling fences on each side of the rear boundary and removed all rubbish at a cost of $2,035 and that he commenced the work to prepare the demolition and excavation at a cost of $350.
Ms Butera’s Evidence
20	SB said she is the director of Echelon and JB is a sub-contractor of Echelon not an employee and he is also her uncle. SB said she took control of the matter after JB explained to her that he was told to leave the site before finishing the job. SB provided copies of numerous exchanges of emails between the applicant and respondent companies. She said she sent an email to PD on 19 August 2022 confirming JB’s instructions that PD was not happy with the job and asked PD to contact her to explain his concerns so that she can arrange to inspect and rectify any issues.
21	She said she received a response by email from CD not PD on 22 August 2022 and said this is the first time she or JB became aware that CD was representing the company Tourco. She said this is because at all times until receiving this email PD had been negotiating the scope and costs of the job with JB including advising JB that Tourco is the relevant party to be invoiced and that he was representing Tourco.
22	She said CD has mentioned that the quote was not signed by anybody on behalf of Tourco, however she said CD in his email of 22 August 2022 has not asserted there is no contract between the companies and has in fact stated that the second quote/agreement for excavation demolition work was terminated. Further she said it is clear that Tourco entered into a contract with Echelon based on the verbal agreement reached with PD on behalf of Tourco and PDs agreement for JB to commence the work which he did on Monday after being given the key safe code access.
23	She said CD made a number of claims regarding the terms of the agreement and the quality of the work, which is summarised as follows:
(a)	That JB agreed with both PD and CD at a meeting on Sunday 14 August 2022 that he would repair straighten and make vertical the rear Colorbond fence.
(b)	That JB incorrectly advised that he was a registered builder because he has no building. 
(c)	That JB agreed that he would start the work on Tuesday, 16 August 2022 when CD would be on site, but that JB started the work on Monday, 15 August 2022 without CD’s knowledge.
(d)	That JB agreed to use redgum posts if available, and if not cypress, and the bases of the fence’s posts would be coated in a water-based bitumen and that overlap of the palings would be at least 25 mm.
(e)	That CD received a call from PD on Monday, 15 August 2022 complaining about the quality of the work and that JB was refusing to straighten or strengthen the rear Colourbond fence without being paid extra money.
(f)	That CD attended the property about midday on Monday and spoke to JB and asked if he had painted the base of the posts which he replied “oh sorry I forgot”.
(g)	That the fence posts were not redgum.
(h)	That the eastern paling fence demonstrated poor construction methods and railings not checked into fence posts but nailed into posts which is “shonky dangerous work” which could lead to serious injury or death because the whole fence panel between the fence posts will in time come loose and easily fall over. That the eastern side fence is not parallel to the building wall but is on a substantial skew into the neighbour’s property and well outside fencing standards and requirements of plus or minus 50 mm from the boundary line.
(i)	The western side paling fence is only 2.11 mm high (100 mm short) and very wobbly which raises the question what depth the posts were installed.
(j)	Both the western and eastern fence are 3.4 m long and should have 3 posts installed, 1 at each end and 1 in the middle but JB has only installed 2 posts in the middle and not at the start and end of each fence.
(k)	The post checkouts of the railings have been checked out too deep (15 mm deep) and prized out to line up with the face of the posts which is poor workmanship and needs to be fixed.
(l)	The downpipe has been damaged and needs to be fixed by a licensed plumber.
(m)	Mr CD demanded that the above defects are fixed by COB 5:00pm on 23 August 2022 the following day or he will remove all work, without payment and claim any costs.
24	SB responded to Mr CD’s email on 23 August 2022 which is summarised as follows:
(a)	All discussions pertaining to the job were between JB and PD until CD’s attendance at a meeting on site on 14 August 2022 and that Echelons invoice dated 15 August 2022 remains outstanding.
(b)	The first quote regarding the fences was texted to PD on 12 August 2022 which required replacement of two fences at a height of 2200 mm and 2000 mm and whilst there is no mention in the quote of the length of each fence it was agreed that the lengths were 3.5 m and 2.4 m and the quoted price was $1,850 plus GST, not $1,800.
(c)	A second quote for $11,000 plus GST was texted to PD on the same day and agreed to by PD.
(d)	JB never advised PD that he is a registered builder, and it is not necessary to be a registered builder to carry out fencing works.
(e)	That PD agreed to JB starting work on Monday instead of Tuesday and PD provided JB with the key safe code to access the property. That it was up to PD to advise his father CD about any changes to starting times.
(f)	JB never agreed to provide redgum posts or to coat the posts with bitumen and this was never part of the quote that was agreed to by PD.
(g)	The first quote texted to PD clearly states that only one panel of Colourbond fence would be repaired and there was never any agreement to change the quote at the meeting on Sunday, 14 August 2022 and if any change was made a new quote would have been sent to PB with an increased price for further works. That JB explained to PD that he could not carry out the extra work on the Colourbond fence for the same quoted price.
(h)	The final invoice totalling $2,042.00 including GST is payable because JB carried out work towards the $11,000 quote which he was to complete the next day before the contract was terminated.
(i)	Regarding the claims that Tourco are not happy with the workmanship, CD did not give JB any opportunity to inspect and fix any alleged defects and requested photos in support of the claims so that she can discuss them with JB and respond to the claims.
(j)	PD and CD did not consent to the disposal of any materials.
25	CD responded by email on 23 August 2022 stating that SB has shown no good will to resolve the matter and that the substandard works were clearly stated in his email to address and photos or expert witness statements confirming this will be provided if the matter goes to court.
26	After further exchanges of emails between SB and CD regarding provision of photographic evidence, on 25 August 2022 CD provided photos and a video to SB which he asserts shows the instability of the west fence. He also provided a photo of damage to the storm water pipe. The parties exchanged further emails but essentially reached a stalemate because on 30 August 2022 at 1:39pm SB sent CD an email giving him until 5:00pm that day to advise her of times and dates that work for him in order to have trades attend and after that there will be no further communication.
27	SB said that neither PD or CD ever communicated in writing that they wished to alter the terms of the original quotes sent despite CD claiming he has been a businessman and builder for over 50 years.
28	SB said the new fencer did not complete the work until 5 October 2024 which was seven weeks after JB completed the fence giving JB ample time to inspect the job and remedy any alleged faults. SB said as CD failed to enable any inspection of the work, Echelon filed the application with VCAT on 15 September 2022. JB and SB submit that Echelon was not given a reasonable time in which to inspect and remedy any alleged defects.
29	SB also refutes CD’s claim that the materials used by Echelon were disposed of because she said the tip fee was only $50.00 which is well below what would have been the costs.
30	SB summarised her evidence by stating that she denies any of the work was substandard or not in accordance with the scope of the agreement and further that she was not given an opportunity to attend the property to inspect the work and resolve any of the alleged issues.
CD’s Evidence
31	CD said he has 50 years’ experience as a business person and builder and 35 years’ experience as a land surveyor.
32	CD provided a document titled Tourco submission which is an email send to VCAT and the applicant on 3 May 2023 which contains the following attachments:
(a)	copies of emails exchanged between him and SB;
(b)	copies of photos listed which he says highlights the fence’s defects; 
(c)	photos of a “proper fence” construction he recently observed;
(d)	Google publications showing a proper fence construction standard; and
(e)	photos and invoice for work and cost of work to redo the fence.
33	CD said he does not deny that Tourco entered into a contract with Echelon for the construction of the fence for a price of $2,035.00 even though he had not signed the quote. However he said at the meeting with JB on Sunday 14 August 2022 JB agreed to three important conditions regarding the quote, (1) that redgum or cypress pine posts would be used (2) the base of the fence posts be painted in bitumen and (3) to straighten the colorbond fence. 
34	CD was given the opportunity to question JB and SB on the first day of the hearing.
35	He provided the Tribunal and JB with a bundle of documents with the title “Example of proper fence construction” which included a document from City of Whittlesea which he said is part of a copy of a brochure from the council which is a standard timber paling fence details and asked JB if this is an example of good fencing work or how a fence should be constructed to which JB replied “yes they are recommended ways to construct a fence”. However, JB said there is not one way to construct a fence and his methods were sound and adequate and in accordance with what was agreed upon with PD.
36	JB was asked whether he agreed that a properly constructed fence needs a post at the start and end of the fence and JB stated “No” that his construction was sound in that he had had installed two posts not at each end which was adequate because he allowed for counter levering either end of the fence. JB rejected CD’s assertion that the palings were left dangling in the air at each end because there was no post at each end which is ‘shonky’ workmanship.
37	JB said this is because after providing three rails or plinths and joining them to the posts and then nailing and latching the palings to tie it all together will keep the fence very stable and the fence will not flap around or dangle in the air as is asserted by CD. JB also stated that whilst he recommended to PD that he attach the end of the fences with cleats this was recommended based on his advice that PD intended to fill the gaps between the fence and the slab with soil. JB explained that having soil at the foot of the fence adjacent to the slab would put pressure on the fence. However, JB said cleats were not necessary to make the fence stable.
38	When asked whether the fence would be sturdier if three posts were installed, instead of two with one each end, JB said, provided customers did not destabilise the fence posts by shaking the fence before the concrete sets, the fence would be equally sturdy. He said the quote did not include three posts and he was not given any opportunity to attend to inspect and rectify any faults if there were any faults. SB said the photos of the newly constructed fence indicate that cleats were used to attach the end post to the brick wall which contradicts JB and CD’s evidence that they did not want to use a cleat because it may damage the brick work.
39	When asked how does a fencer notch out a post, JB said it can be done in a number of ways but his method was to set the depth of the rail on his electric saw which is 45 mm and which is what he did to cut the notch and that it was done appropriately. JB rejected the photos provided by CD who suggested that there was very sloppy overcut notching completed on the western fence, ie a significant gap between the notch on the post and the fence. JB said there is no overcut and the shaded section is only about 14 mm. He said even if there is a gap it could easily be fixed by getting a bugle or screw, screwing it in from the neighbours’ side of the fence and squeezing it back together.
40	CD said the timber fencing had to be removed and redone because it could not be fixed. He said there was no point allowing Echelon tradespeople to attend the property to inspect or repair the work because it was beyond repair. However he said he allowed SB the opportunity to attend with trades people to inspect the works but she did not. In that email he said if she did not inspect and provide information as to how she will fix the problems he will have to demolish the existing job and restart the job because he has to continue with the building of the house, including pouring footings. He provided an email dated 30 August 2022 which was sent to SB in support of this claim. 
41	CD provided copies of an invoice dated 5 October 2022 from the business All seasons fencing totalling $1,885 plus GST together with photos which he said demonstrates proper and or standard workmanship. The job includes three posts, bitumen painted posts, proper notching of the posts to the rails and straightening and strengthening of the Colorbond fence at a cost of $350.00.  CD said the photos of the replaced fence completed by the contractor show that the fence is now perfect. JB and SB submit that the photos of the replaced fence indicate that the fence was not constructed in accordance with the Whittlesea Council guidelines in that the posts have been cut flat rather than a splay finish which prevents water sitting on the post causing rot. CD disagreed with this assertion.
42	CD said the broken pipe was repaired by a plumber as per his last email 30 August 2022. However, he did not lodge a counter claim in relation to the alleged damage. JB said he denies any responsibility for any damage to the pipe.
43	CD provided a report from RA Melchiori, registered domestic builder and civil and structural engineer, dated 20 May 2024 on letter head Melchiori civil engineers, building consultants and town planners. After stating his qualifications as a registered builder and qualified engineer with many years’ experience and noting that he has made comments based on four photos provided by Tourco he states:
I agree with the respondent, that the fences have not been built properly or to a standard an ordinary person/property owner would expect.  These fences are not structurally sound.  Traditionally fences are built between end posts one at the start of the fence and the other at the end of the fence with intermediate posts at no more than2400/2700 spacing depending on weather0/5400 timber lengths are used and that the fence rails be “check in” into the posts not butting and not skew nailed into the posts.  Neither of these traditional well recognised fence construction principles has been used in the fences depicted by the attached photos.
Also these fences do not meet the structural requirements of the Australian standardAS1720.1 Timber Structures (the Timber standard). 
COMMENTS on the EAST FENCE
the east fence was approximately400 mm, long 210 mm high and was constructed between two end posts. From the attached photos it is clear the railings are notched in” and allowed into the posts but rather the rails butt into the side of the post and are fixed to the post by skew nails.  As I have said above this is not an accepted traditional fence join and further that is a structurally poor joint which can easily fail and come loose particularly as skew nails are not as well embedded or as strong as straight nailing but also because treated pine rails are prone to twisting and shrinkage nearby forcing the joint to move.  In my view this fence panel between the posts with time can easily topple over due to wind or by someone leaning or climbing onto the rails.
COMMENTS on the WEST FENCE
this fence was constructed approximately 3500 mm long and 2100mm high on two intermediate posts some 900mm  in from each end of the fence.  Proper construction as advised above requires a fence posted the start of fence against the house, and the other at the end of the fence and because the span of 3500mm between each end is longer than00mm it required a fence post in the middle as well because the 900mm end overhangs were not fixed leaving them to virtually blow and sag in the section and because this fence was supported on two posts not three I consider this fence not only improper but also structurally unsound.
39	On the second day of hearing on 13 January 2025 it became apparent that Echelon had not received a copy of Mr Melchiori’s report or the Timber standard or the relevant four photographs referred to in the report. SB initially asked that the hearing be adjourned so she could arrange for an engineer to complete a report. However, after being given time to read the report, she decided to proceed with the hearing. 
40	Mr Melchiori gave evidence by telephone and was questioned by JB regarding the report. While questioned Mr Melchiori explained that he was on holiday and did not have a copy of the report or photos or the timber standard in his possession. He said the fence did not meet the timber standard because the fence was not installed in accordance with engineering requirements of a timber structure. Mr Melchiori said there is no standard regarding the construction of a fence and he was unable to explain specifically in what respect the fence did not meet the timber standard. It became apparent that the timber standard was more than 180 pages in length and neither CD or Mr Melchiori had copies or were able to explain further the relevance of the timber standard.
41	Mr Melchiori said it was possible to use a cleat to affix to a wall adjoining the end of each fence to stop any twisting of the rail if the builder has the consent of the owner. However, he said this was not a recommended method of installing a fence because the cleat may damage the brick it is being attached to. He said that is why it is also preferable to use two end posts and one middle post. However, Mr Melchiori said that if the appropriately sized cleat is used it would avoid blow out to any brick work.
42	Mr Melchiori was asked whether if enough skewed nails were used to attach the rail to the posts which are properly embedded and attached would this make the fence structurally sound. Mr Melchiori said the nails needed to be perpendicular to ensure the rail was adequately attached to the post. He said the photos demonstrated that the nails were skewed which is poor workmanship.
43	Mr Melchiori said based on the photos and lengths provided the fence was not structurally sound.
44	Mr Melchiori said there was no need for a carpenter or builder to build the fence and it was not common practice for engineering computations or plans to be drawn up for a fence of this height. 
45	Mr Melchiori said if somebody had shaken any of the posts before the concrete had set this would further weaken the fence structure However, he said assuming the concrete was appropriately dried without disruption the fence would not have been structurally sound for the reasons outlined in his report.
46	CD referred to his written submissions he provided to the Tribunal in support of his claims that the fence was not installed with due care and skill. He said it is clear based on the photographs provided and as supported by Mr Melchiori’s evidence that the fence was not structurally sound. He said the nails were not properly embedded to the posts to the depth required and the rails were abutting the posts not cut into the posts. 
47	JB said nether CD or PD provided specific directions or any written plans or diagrams or computations to JB about the construction of the fence. He said the quote provided the details regarding the height of the fences only. He said the fence was structurally sound and that whilst he had suggested to PD that a cleat should be used to attach the fence PD rejected the suggestion. CD said although he did not specifically request that the fence have a post each end he shouldn’t have to do so because it was standard practice to build a fence with a post at the end and a post in middle and to notch the post to fit the rails and not to nail or screw the rail to the post at an angle. CD also stated that it is not common practice to have drawings regarding the construction of a fence.
48	JB said whilst he denies CD said the posts had to be redgum, he used hardwood cypress pine posts which CD agrees was the second option. Whilst both CD and PD said JB was told he needed to apply bitumen to the posts JB said he could not recall this request was made. Further whilst CD and PD gave evidence JB was told he had to straighten the Colourbond fence JB denies such request was made at the meeting on Sunday and that the only time it was raised was on the Monday after he had completed the job and PD raised the issue. PD did not deny he approved JB starting the job earlier on Monday.
49	JB and SB said there is no legal requirement or regulation regarding how to build a fence. He said the documents relied on by CD from Whittlesea Council about how to build a fence are no more than a guide. SB submitted further that Whittlesea Council is not the council that has authority over the property, rather it is Merri-bek council which she said has no information on their website about how to build a fence. 
50	CD submitted that whilst there is not legal requirement or regulation regarding building of a fence, building regulations do not normally go into specifics on how anything is to be constructed. CD said both fences were clearly not structurally sound because they failed to meet proper and well known building practices and standards for a fence to be structurally sound. He said it is well known practice that a paling fences are built between two end posts and that further posts are installed in between the two end posts at specific distances with rails attached to the posts. 
51	CD said he relied on the pamphlet from Whittlesea council to demonstrate what is accepted standard practice for the construction of a fence because the relevant council did not have a pamphlet.
Issues
52	Issues:
(1)	Did Echelon enter into any contract with Tourco?
(2)	If yes, what were the terms of any contract?
(3)	Was the work completed regarding the first contract in accordance with the terms of the contract?
(4)	Was the work completed regarding the second contract in accordance with the terms of the contract?
(5)	Was the work done regarding the first contract completed with due care and skill in accordance with the implied terms in the contract and or the guarantee available to consumers of services under s 60 of the Australian Consumer Law (Victoria) (‘the ACL’)?
(6)	If any of the work was defective in breach of contract or the guarantee under s 60 is the applicant entitled to any of the claim for the work done regarding each contract?
Applicable law
53	The ACL applies to the parties’ transaction. Echelon is claiming payment of a debt for fencing services provided and Tourco are denying responsibility for payment on the basis that the work was defective and in breach of contract and consumer guarantees and are seeking damages.
54	The ACL imposes guarantees that such services “will be rendered with due care and skill”. There is also an implied term by operation of law in a contract that for the supply of services the supplier will exercise reasonable care and skill in the provision of those services.
55	The ACL entitles the consumer to seek damages where, because of a failure to comply with a guarantee, it was reasonably foreseeable that the consumer would suffer loss or damage because of such a failure. 
56	The party who asserts a right to payment, whether as payment for work done or as damages for breach of a contract or other obligation (‘applicant’) has the onus of proving their claim, and the standard of proof is the balance of probabilities. In other words, the applicant must prove their case. They do not have to do so ‘beyond reasonable doubt’ as in a criminal matter, but the evidence must satisfy the Tribunal that it is ‘more likely than not’ that the matters which they allege, and which are said to give rise to their claim at law did actually occur.
Decision
1. Did Echelon enter into a contract with Tourco? Yes.
57	Whilst JB disputes being told that CD is the only person authorised to agree to any work on behalf of Tourco, I find that there was clearly a contract between Echelon and Tourco. Whilst the quotes were not signed by Tourco, it is clear that a contract was made with Tourco and not anybody else. This is because PD agreed that he told JB that the quotes should be sent to Tourco and he agreed to JB starting work on Monday and provided access via the key lock code. Further CD’s first email dated 22 August 2022 in response to SB’s email dated 19 August 2022 supports Echelons contention that CD accepts that any agreement was with Tourco. Further, during the hearing CD did not dispute there was a contract.  The main issue is what terms were agreed to between Echelon and Tourco regarding the construction of two paling fences, the Colorbond fence and the demolition work.
2. If yes, what were the terms of the contract?
58	JB agreed that neither PD or CD signed or verbally accepted the quotes sent at their meeting on 12 August 2022. I accept PD’s evidence that after receiving the quotes he said he needed to discuss the job with JB on site before accepting the quotes. This means that the terms of the contract can only be determined based on the quotes and verbal discussions between JB, CD and PD. Neither PD nor CD provided anything in writing to JB regarding their expected terms regarding construction. Based on their evidence of what was discussed at the meeting on Sunday and based on what is contained in the quotes, I am satisfied that Tourco accepted Echelon’s offer to install two paling fences on the rear western and eastern boundary of PD’s property using hardwood posts (either redgum or cypress pine) at the heights detailed in the quotes. I prefer JB’s evidence that it was not a term of the job that Echelon was required to straighten the Colourbond fence. The only written terms provided are contained in the quotes and the first quote only includes replacement of the Colorbond. Neither CD nor PD provided any evidence that the terms discussed at the meeting on Sunday were confirmed in writing as variations to the original quote. 
3. Was the work completed regarding the first contract in accordance with the terms of the contract? Yes.
59	I find that the work was completed in accordance with the terms of the contract. There is no dispute that in accordance with the first quote, JB removed and replaced two new fences, one with two sleepers at a height of 2200 mm, with the other fence at 2000 mm high, and he replaced the Colourbond fence panel, and he removed rubbish from the site. There is no dispute that an invoice was issued to Tourco for the agreed quoted price of $2,035.
4. Was the work completed regarding the second contract in accordance with the terms of the contract? Yes, partial completion only.
60	I find that JB commenced works regarding the second contract in accordance with the terms of the contract. I prefer JB’s evidence that he removed rubbish from the front of the property at a cost of $350.00 as per the invoice relied on.
5. Was the work done regarding the first contract completed with due care and skill in accordance with the implied terms under the contract and or the guarantee given to consumers of services under s 60 of the ACL? No.
61	I find that the work done in relation to the first contract was carried out in breach of both the implied terms of the contract and the guarantee under s 60 of the ACL.
62	Based on the evidence provided by CD and Mr Melchiori, I am not satisfied that there is a specific standard or relevant regulation applicable to the construction of a paling fence. I accept that Mr Melchiori has relevant qualifications and expertise regarding the proper construction of paling fences to give expert opinion. I give considerable weight to Mr Melchiori’s evidence and his report and prefer his evidence to JB’s evidence that the completed paling fence was not structurally sound and therefore based on JB’s considerable experience in building fences was not completed with due care and skill. I accept Mr Melchiori’s evidence that the fence could not be rectified rather it had to be pulled down and the job started again because end posts had to be installed or at least a cleat attached to both the existing east and west facing fences or the fences could easily fall due to wind or somebody leaning on them. Further I prefer Mr Melchiori’s evidence that without a cleat properly fitted the fence was not structurally safe. There is no dispute that PD did not give consent to a cleat being used because of his concerns about possible damage to the brick work.
63	Based on the above findings of fact, I therefore dismiss the claim for the cost of installing the two timber paling fences.
64	However, I am satisfied that Echelon is entitled to the cost of fitting the Colorbond panel. CD gave no evidence that this work was substandard, rather he asserted that the work was not completed in accordance with the terms of the contract, ie to straighten and strengthen the fence not just replace the panel. There is no evidence that the first quote was varied in writing, and I am not satisfied that CD has proven that the quote was varied during the subsequent meetings between JB, CD and PD. As I am satisfied that the terms of the written contract (the first quote) only required replacing the missing panel, I accept JB’s evidence that the cost of completing that work was $200.00 and therefore I allow that claim and order that Echelon pay the sum of $200.00.
65	Regarding the second contract, there is no evidence that the work was not carried out with due care and skill. I am satisfied that JB completed partial work by removing some materials in preparation of the necessary excavation work and therefore I order that Tourco pay Echelon the sum of $350.00.
Given my finding that the first contract was not carried out with due care and skill in breach of the implied terms of the contract and the guarantee under s 60, is Echelon entitled to any of the claim for the work done regarding the first contract? Yes.
66	The issue as to whether Echelon was given the opportunity to inspect and remedy any alleged defects is relevant to the legal principles of mitigation of loss, which is relevant to the issue of mitigation of damages. The issue is whether Tourco has acted reasonably in the circumstances and if Echelon had inspected the alleged defects what impact has this would have had, if any regarding Tourco’s defence. I prefer CD’s evidence that Echelon was given the opportunity to inspect the job which is supported by his email sent to SB on 30 August 2022. Further, based on Mr Melchiori’s evidence and report I am satisfied that even had Tourco allowed Echelon to inspect the work and been given the opportunity to remedy the job, as it was not possible to repair or rectify the work, Echelon would not have been able to rectify the job but would have had to redo the entire job.
CONCLUSION
67	I dismiss the claim for the cost of installing the paling fence and order that Tourco pay Echelon the sum of $200.00 being the cost of the work to replace the Colorbond panel and $350.00 the cost of the partial work done for the second contract, the total amount to be paid is therefore $550.00.

R Daly
Member