VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST			VCAT REFERENCE NO. C2907/2020
CATCHWORDS	

Applicant and Respondents entered into a contract for the Applicant to supply and install a French door, front and rear entry doors, and wardrobes at the Respondents’ residential investment property – Applicant seeks payment – Respondents allege that the work undertaken by the Applicant was defective and they have had another person undertake remedial work – sections 182 and 184 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).	

APPLICANT	SDD Constructions Pty Ltd (ACN: 619 841 655) t/as Baybuild Carpentry atf Scott Dyer	
first RESPONDENT	Rod Hareb 	
second RESPONDENT	Katsila Wong	
WHERE HELD	Melbourne	
BEFORE	Member D. Kim	
HEARING TYPE	Remote hearing	
date of HEARING	9 July 2021	
DATE OF ORDER	8 September 2021	
CITATION	SDD Constructions Pty Ltd v Hareb (Civil Claims) [2021] VCAT 1051	
Order
1.	The principal registrar is directed to amend the register so that the Second Respondent’s name is Katsila Wong.

2.	By 30 September 2021, the Respondents, Rob Hareb and Katsila Wong, must pay the Applicant, SDD Constructions Pty Ltd (ACN: 619 841 655) t/as Baybuild Carpentry, the sum of $3,007.40.

D. Kim
Member			
APPEARANCES:		
For Applicant	Mr S. Dyer, Director	
For Respondents	Both in person	

Reasons

baCkground
1	The Applicant (SDD Constructions) seeks the sum of $5,582.50 from the First Respondent (Mr Hareb) and the Second Respondent (Ms Wong) for the supply and installation of a French door, front and rear entry doors, and wardrobes at the Respondents’ residential investment property (Property). The Respondents are husband and wife.
2	SDD Constructions’ claim against Mr Hareb and Ms Wong is based on contract. It alleges that it fulfilled its obligations under the contract and in breach of the contract, the Respondents have not paid the full amount due under the contract.
3	Mr Hareb and Ms Wong deny that SDD Constructions is entitled to any amount in addition to what they have already paid under the contract. They allege that the work undertaken by SDD Constructions was faulty and SDD Constructions misled them by not providing them with goods and services as requested. They alleged that they have had to engage another builder to undertake remedial work. By the nature of the Respondents’ defence, they allege that it was SDD Constructions who breached the terms of the contract.
THE TRIBUNAL’S JURISDICTION
4	I am satisfied that I have the power to hear and determine this dispute, given that:
a.	Under s.5(3)(c) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA), the ACLFTA applies to “a supply of goods or services in Victoria where the contract for the supply of goods or services is made in Victoria.”
b.	Section 184(1) of the ACLFTA confers jurisdiction on the Tribunal to hear and determine a “consumer and trader dispute”, which is defined by s.182(1) to mean (so far as relevant to this case) a dispute arising between a purchaser and a supplier of services in relation to a supply of services.
c.	Section 184(2) of the ACLFTA empowers the Tribunal to be able to do one or more things in relation to a consumer and trader dispute, including ordering a payment of money by way of damages or restitution (ss.184(2)(b)(ii) and 184(2)(b)(iii)).
5	Based on the evidence of the parties, I am satisfied that SDD Constructions’ claim falls within the definition of a “consumer and trader dispute” under s.182 of the ACLFTA, and accordingly I have the power to hear and determine the dispute under s.184 of the ACLFTA.
parties’ evidence
6	For SDD Constructions, Mr Dyer (Director) and Ms Movis (Administrative Officer) gave evidence, while Mr Hareb and Ms Wong each gave evidence in response.
Mr Dyer’s evidence
7	Mr Dyer gave the following evidence:
a.	SDD Constructions undertakes carpentry work.
b.	Prior to the subject matter of this dispute arising, Mr Dyer had undertaken previous work for Mr Hareb.
c.	On 12 February 2020, Mr Hareb approached him and requested that he (meaning SDD Constructions) undertake renovation work at the Property.
d.	Mr Hareb, among other things, wanted to have:
i.	Bi-fold doors put at the back of the house.
ii.	The laundry door replaced.
iii.	Wardrobes built in for each of the three bedrooms in the house.
e.	Mr Hareb and he agreed that SDD Constructions would undertake the works set out in the preceding paragraph but the painting and plaster work associated with the works would be done by another contractor. Mr Dyer gave Mr Hareb the phone number of a painter that he knew who could do the paint work.
f.	Subsequently, SDD Constructions provided Mr Hareb and Ms Wong with a quote dated 22 February 2020. The quote included the supply and installation of a bi-fold door at the rear of the house and a laundry door.
g.	On 24 February 2020, Mr Hareb accepted SDD Constructions’ quote.
h.	On 27 February 2020, the incorrect door for the rear of the house was ordered. Due to the mistake, Mr Dyer agreed to reduce SDD Constructions’ tax invoice so that Mr Hareb was credited $275, which meant that the total invoice amount was reduced to $11,440.
i.	Subsequently, Mr Dyer and Mr Hareb met on the Property to discuss the bi-fold doors. Mr Dyer told Mr Hareb that if bi-fold doors were installed they would come in and might hit the chair so he should go for French doors at no extra cost. He said installing French doors were more expensive. Mr Hareb agreed to have French doors installed at no extra cost.
j.	Rather than ordering bi-fold doors, SDD Constructions ordered French doors.
k.	On 15 March 2020 the French doors arrived on site and they were installed. Mr Hareb looked at the doors and was happy with how they looked. Mr Dyer locked the doors and told Mr Hareb that the doors were not finished, they needed final adjustments and to not let anyone use them.
l.	Mr Dyer said that a few days after he installed the French doors he was on site and saw the trades person who was renovating the bathroom using the door. He told the tradesperson not to use the doors. He did not see Mr Hareb on this occasion.
m.	On 23 March 2020, Mr Hareb asked Mr Dyer why the French doors were not swinging outwards. Prior to his question from Mr Hareb, Mr Hareb and Mr Dyer had not discussed which way the doors would swing. Mr Dyer installed the doors so that they were swinging inwards because the standard for a French door is to have the doors open inwards.
n.	In order to keep the relationship, Mr Dyer agreed to have the French doors, at his own cost, swing outwards. He said both Mr Hareb and Ms Wong were happy with that proposal.
o.	On 30 March 2020, Mr Dyer received a text message from Mr Hareb asking whether the new door frame would allow the French doors to be parallel to the outside walls (flush to the walls) when open. Prior to this text, there was no indication from Mr Hareb or Ms Wong that they wanted the doors to be flush against the brick wall.
p.	In addition to this request, Mr Hareb and Ms Wong raised other issues with Mr Dyer about the quality of his workmanship, including in respect of the door frames and the wardrobes. Mr Dyer said that his discussions with Mr Hareb became heated and the parties began communicating only by email from 31 March 2020.
q.	On 1 April 2020, Mr Dyer was informed by Mr Hareb that he was not going to get any more money and that someone else would address his defective works.
r.	Mr Dyer said that the work was unfinished and due to Mr Hareb’s behaviour, he was not able to continue with the project. He said that he had only needed one more day to complete the work. He said that the French doors needed final adjustments.
Ms Movis’ evidence
8	Ms Movis’ evidence was brief. She gave evidence that she sent the various tax invoices to Mr Hareb on behalf of SDD Constructions. The Respondents admit that they received the documents.
9	Ms Movis was not involved in any discussions with the Respondents in respect of the scope and actual work undertaken by SDD Constructions. She was not a witness to any relevant discussions between Mr Dyer and the Respondents.
Mr Hareb’s evidence
10	In addition to the documents provided by Mr Hareb, he initially gave oral evidence that he had been a builder for 10 years in New Zealand. He then gave evidence that he has never had a building licence or any formal qualification as a builder. He also claimed initially that he was an engineer. When I asked him what type of engineer he was, he said that he was not an engineer but that he had worked with builders and engineers in the past and this gave him some experience in such areas.
11	Mr Hareb gave evidence that the first door that Mr Dyer provided was not even a bi-fold door. He did acknowledge that subsequently, he agreed to have French doors installed rather than bi-fold doors.
12	Mr Hareb said that he and Mr Dyer had agreed that SDD Constructions would provide finished products, which included Mr Dyer having to do any necessary work to have the products finished, such as painting and plastering. He denied Mr Dyer’s assertion that they had agreed that someone else would do the painting.
13	On 12 February 2020, he met Mr Dyer at the Property and told him that they were intending to rent the Property out. Ms Wong took Mr Dyer through the house and told him what she wanted done. Mr Dyer went room by room to take measurements and took notes on his mobile phone as Ms Wong told him what she wanted. She told Mr Dyer that she wanted French doors at the rear of the place which would swing out so that they were flush to the external wall. Mr Dyer in reply said to her that did not need a permit and it was “doable”. Ms Wong also told Mr Dyer that she wanted new mirrored wardrobes in each bedroom.
14	On 22 February 2020, Mr Hareb received a quote from SDD Constructions which was for swinging doors. Despite the quote stating that the doors to be installed were bi-fold doors, he said that he did not know what bi-fold doors were. He said that he and Ms Wong just wanted swinging doors at the start.
15	On 23 February 2020, Mr Hareb sent Mr Dyer an email asking for, among other things, photographs of bi-fold doors.
16	On 24 February 2020, Mr Hareb sent Mr Dyer emails altering the scope of works that SDD Constructions were to undertake. In the emails, Mr Hareb requested that Mr Dyer:
a.	Install new bi-fold doors at the rear.
b.	Install built-in wardrobes for three bedrooms.
c.	Replace entry and rear (laundry) doors.
d.	Commence work on 6 March 2020.
17	On 27 February 2020, Mr Dyer emailed Mr Hareb SDD Constructions’ invoice in the sum of $11,715.00. The invoices noted, among other things, that:
a.	Bi-fold doors would be installed with an upgrade window beam to support the door (at the cost of $5,500 excluding GST).
b.	Existing robes would be removed and all 3 bedrooms would have new wardrobes, with polished metal frame and mirror doors and “complete installation and warranty by “A touch of glass” (at the cost of $4,000 excluding GST).
c.	Existing entrance and laundry doors would be replaced (at the cost of $1,150 excluding GST).
18	Later that day, Mr Hareb paid SDD Constructions the deposit sum of $5,857.50, being 50% of the invoiced amount. Subsequently, SDD Constructions amended their tax invoice by reducing the total amount to $11,440.
19	On 28 February 2020, Mr Hareb and Mr Dyer had a conversation in person when they were at their respective factories (both had factories opposite to each other). Mr Dyer asked Mr Hareb when Mr Hareb would be organising the plastering, painting and rubbish removal. Mr Hareb responded by telling Mr Dyer that those were things that Mr Dyer was supposed to do as part of Mr Dyer’s “turn-key work”. Mr Hareb then questioned Mr Dyer how he would finish his job if he did not organise those matters.
20	Mr Hareb said that he understood that Mr Dyer was going to provide turn-key work. He said that all other tradies working on the project were providing turn-key work.
21	Mr Hareb gave evidence that Mr Dyer then backed him into a corner, pointing out some grey areas in the quote and indicating that he would not do the additional works. Mr Hareb agreed to have the above additional works to be done by someone else at the Respondents’ costs.
22	On 6 March 2020, Mr Dyer attended the Property to double check the measurements for the window and walls, and for the fitting frames for the purpose of installing the French doors. While he was there, Ms Wong asked Mr Dyer to show her what bi-fold doors looked like. He showed her a photograph on his mobile phone that was a door with three folding panels. She told him that the panel area was too big and it would occupy more than the window area. She said to him that the doors had to be French doors to maximise lighting and they had to open outside and lean flat against the walls as there would be decking. She indicated a number of times that the doors had to be French doors that opened outwards and lean flat against the external walls.
23	On 27 March 2020, Mr Hareb emailed Mr Dyer asking if the doors were ready to send over so that they could be painted. Mr Hareb also asked, “What are you going to do with the bifold doors to have them swinging out?” On the same day, Mr Dyer replied by email that: “There [sic] going on today mate”, followed by another email approximately 10 minutes later stating: “Still working on the back door”.
24	On 31 March 2020, Mr Hareb and Ms Wong went to inspect the progress of the renovation work. Ms Wong told Mr Hareb that the rear doors were not opening outward but rather inward. They met Mr Dyer on site and they had a disagreement about the doors. Mr Dyer told them that they could not have swinging doors fit so that they swung outside. After a lengthy conversation, Mr Dyer agreed to build another door frame so that the doors would swing out. Mr Dyer followed up with an email stating that the original idea was for the French doors to open inwards, and that he could change the doors so that they swung outwards with new frames but they would not open 180 degrees and it was standard for French Doors to swing inwards.
25	Later that day, at approximately 3:29PM, Mr Dyer sent Mr Hareb an email stating, among other things:
“As discussed, regarding the back doors at your property, you originally asked for bifold doors which is what was quoted on and accepted and then changed your mind to install French doors.
As per your request, we installed French doors which open inwards, this is standard and having them installed this way also allows them to sit flush against the walls inside the house.
After the doors were installed, you then called to request that these doors open outwards. Out of goodwill we ordered a new frame to allow the doors to swing outwards, however after you asked if the doors would be sitting flush against the outside bricks once installed, once you were advised no, you were no longer happy with this as you believe this would pose a safety concern.
… Once again and as explained to you today, it is not possible for the doors to sit flush against the outside bricks because a standard door frame cannot swing 180 degrees outwards on a brick veneer house.”
26	On 1 April 2020, Mr Dyer attended the Property and undertook some work. Mr Hareb and Ms Wong were not happy with Mr Dyer’s work.
27	In terms of the French doors, the doors only swung at a 90-degree angle and did not open flush to the wall. When the Respondents raised the issue with the doors, Mr Dyer became upset and angry and told them that he would not change the doors any further. Mr Dyer also told him that any split in the timber was within the allowable tolerances in the Australian Standards.
28	Later that day, Mr Dyer emailed to Mr Hareb stating that he was harassed by Mr Hareb on site and Mr Hareb was not giving Mr Dyer the opportunity to complete the job. In response, Mr Hareb sent a detailed email to Mr Dyer that day.
29	In terms of the wardrobes, Mr Hareb said that there were multiple gun nails protruding out of the timber. He said that it was a rush job with no care taken.
30	In terms of the front door, the door did not fit properly and the door was hitting the door jamb tight and pre-paint was wearing off. Mr Dyer trimmed back the door but it was still tight, and the door tongue was not locking into the striker plate properly without slamming the door.
31	In terms of the French doors, there were skewed nails, chips, a broken screw and a missing striker plate for the tongue of the door handle, among other things.
32	On 2 April 2020, Mr Hareb sent an email Mr Dyer not to come back on to the site due to poor quality of work, stating that he would have other people replace the defective work and materials.
33	On 3 April 2020, Mr Hareb emailed Mr Dyer and requested that he replace the split timber on the wardrobe door frames. Subsequently, Mr Dyer attended the Property and worked on the wardrobes. Instead of replacing the frames, Mr Dyer put architrave over split timber to hide the poor workmanship.
34	On 7 April 2020, Mr Andrew Craig-Smith, building inspector, of IPI Victoria Pty Ltd came on site and inspected Mr Dyer’s work. Later that day, Mr Craig-Smith sent Mr Hareb an email stating:
“In short, there is no evidence of any new beam being installed above the French doors. Front door jamb inner edge needs to be routed out to accommodate the wider entry door as he has done with the rear door. Poorly installed architraves around robes and incomplete plaster works require repairs to achieve an acceptable standard.”
35	On 8 April 2020, Mr Hareb engaged a third-party contractor, Concreting A100, to remedy any faults from Mr Dyer’s work.
36	On 16 April 2020, Mr Dyer emailed Mr Hareb an amended tax invoice in the sum of $11,440 including GST. The amended tax invoice:
a.	Did not include “Upgrade window beam to support bifold to minimize the door binding in the future” as it had been stated in the original tax invoice for the bi-fold doors.
b.	Provided a reduction of $100 for being unable to complete the installation of the doors.
c.	Provided a reduction of $100 for being unable to complete the robes.
d.	Provided a reduction as final adjustment for incomplete work of $50.
e.	Taking into the sum of $5,857.50 paid by the Respondents, stated that the sum of $5,582.50 was owed.
37	On 20 April 2020, Mr Hareb received a tax invoice in the sum of $3,950.10 including GST from Concreting A100. The invoice included descriptions of works undertaken including for having to rebuild the frames for the French doors to have them swing out to be parallel with the outside wall, as well as plastering.
38	In terms of the alleged defects, Mr Hareb produced a number of photographs that he said he and Ms Wong had taken. They included photographs which showed:
a.	The top part of the French doors which he said showed the top bolt plate had not been drilled fully to allow the bolt to fully lock. There was also a chip at the top corner of one of the doors. There was a nail protruding out on the door frame/skirting on top of the door.
b.	The top striker plate deadlock bolt not being drilled through. It also looked as though the plate could have been slightly misaligned.
c.	A broken screw which had been removed had not been replaced. The bolt hole was not lining up with redrilled hole left with sharp birrs.
d.	The French doors not aligning, bowing out at the top.
e.	A gap at the top of the French doors between the door and the frame.
f.	Bottom of the French doors which Mr Hareb said was missing flashing and needed weather proofing.
g.	Side of the French doors which showed that there were two hinges rather than 3 as Mr Hareb said should have been present for adequate weight bearing.
h.	The front (entrance) door which Mr Hareb said was too tight and needed to removed and adjusted.
i.	Corner of one of the wardrobes which had splitting.
j.	Corner of another wardrobe which had splitting and a nail tip protruding out.
k.	Corner of another wardrobe which had splitting.
l.	Side of one of the wardrobes which had a primer coat. Mr Hareb said that the coat had been applied poorly which some areas not fully coated.
m.	The frame of one of the wardrobes which did not have a noggin.
39	By way of comparison, Mr Hareb produced a number of photographs of how the wardrobes and doors looked once the contractor completed remedial work.
Ms Wong’s evidence 
40	Ms Wong’s evidence was brief. She gave evidence that on 12 February 2020, she and Mr Hareb were speaking to the building inspector on site. Mr Dyer was there also and he was listening in on the conversation. She said that she talked to the building inspector about the back door and her intention to have the door open out. She also talked about wanting to have an open space. She also said that she talked to Mr Dyer about the French doors and told him that she wanted the doors to open outward because there was no internal wall for the doors to hit.
the tribunal’s findings as to the evidence
41	Having carefully considered the evidence, I find that:
a.	Despite initial miscommunications, in the end the parties agreed for French doors to be installed at the rear of the Property at no extra cost to the Respondents. 
b.	Leaving aside the fact that the parties eventually agreed on the installation of French doors as opposed to bi-fold doors, the work that SDD Constructions was required to undertake and the contract price for that work was recorded in SDD Constructions tax invoice dated 27 February 2020, which initially stated the total price as $11,715 which was then reduced to $11,440. This was for SDD Constructions supplying and installing:
i.	French doors, with an upgrade window beam to support the door.
ii.	A front and laundry/rear door. 
iii.	Bult-in wardrobes for each of the 3 bedrooms. 
c.	SDD Constructions was not required to paint the wardrobes or the doors. I am satisfied that the Respondents were either aware or ought to have been aware of this fact. The quotes and tax invoices SDD Constructions provided to Mr Hareb did not mention anything about paint works. Further, SDD Constructions was not required to undertake plastering work to complete the work. Even if, as the Respondents allege, SDD Constructions had initially agreed to provide “turn-key” work, the Respondents admit that after the alleged conversation with Mr Dyer on 28 February 2020 where Mr Dyer indicated that he would not undertake plastering and painting, Mr Hareb agreed to have someone else attend to those matters. 
d.	On 6 March 2020, Mr Dyer attended the Property and had a conversation with Ms Wong about the installation of the French doors. I am satisfied that Ms Wong told Mr Dyer that she wanted the French doors to open outwards that day. My finding is supported by Mr Hareb’s email to Mr Dyer on 27 March 2020 where Mr Hareb incorrectly referred to the French doors as bi-fold doors when he stated, “What are you going to do with the bifold doors to have them swinging out?” Mr Dyer reply emails that: “There [sic] going on today mate”, followed by another email approximately 10 minutes later stating: “Still working on the back door”, demonstrates that he had read and considered Mr Hareb’s question. It also establishes that contrary to Mr Dyer’s allegation, Mr Hareb did ask Mr Dyer about whether the doors would swing outwards prior to Mr Dyer installing the French doors. In responding to Mr Hareb’s email, Mr Dyer did not indicate to Mr Hareb that having the French doors swinging outwards was something that had not been raised before or it was not possible for them to swing outwards.
e.	At no time prior to the French doors being installed did Mr Dyer expressly tell the Respondents that the doors would be swinging inwards or convey to the Respondents that their request could not be achieved. To the extent that Mr Dyer’s email on 31 March 2020 attempts to justify why the French doors swung inwards, I consider them as self-serving statements which do not justify why he did not install the doors to swing outwards as requested by the Respondents. It was not until 31 March 2020 that Mr Dyer explained to the Respondents why in his opinion the French doors could not swing outwards flush to the external walls. 
f.	Although the works that SDD Constructions undertook were incomplete, they were also in part unsatisfactory and contrary to what was required under the contract. This is for the following reasons:
i.	Whilst Mr Dyer is a qualified person to give expert opinion, he is clearly not an impartial and independent expert. 
ii.	However, it is clear that Mr Hareb is not a person whom the Tribunal can consider has the necessary qualification or experience to be considered an expert as to the alleged defective works. For example, he is not a builder, carpenter, plumber or an engineer. This also rings true for Ms Wong, who is an estate agent and who in any event did not give detailed evidence as to the alleged defects.
iii.	Nevertheless, the only party who provided some level or resemblance of independent expert evidence as to SDD Constructions’ work were the Respondents in providing the email from Mr Smith of IPI Victoria Pty Ltd.
iv.	Taking into account the photographs presented to me of the state of the work by SDD Constructions, Mr Smith’s email, and the works performed by Concreting A100 as shown in numerous photographs, I am satisfied that:
1.	SDD Constructions failed to have the front door jamb inner edge routed to accommodate the wider entry door. I am satisfied that the front door did not fit properly and despite Mr Dyer trimming the door, it was still tight and Concreting A100 had to undertake remedial work.
2.	SDD Constructions failed to install a new beam above the French doors as it agreed to do.
3.	In terms of the French doors and the frames, there were skewed nails, chips and a broken screw, as well as a missing striker plate. There was also misalignment of the doors.
4.	There were splitting of the wardrobes and some of the nails were protruding out at the other end or had been removed leaving a small hole. SDD Constructions submitted that the splitting and protrusions were within the Australian Standards. However, I was not provided with the copy of the relevant Australian Standards or any evidence from an independent qualified person supporting SDD Constructions’ assertion.
5.	I am satisfied that at the least, some of SDD Constructions’ work was careless and sloppy and needed to be redone.
g.	My findings as set out in the preceding paragraph are those that can be readily observed from the evidence. 
h.	Further, whilst I accept that SDD Constructions sought one further day to complete the work, there were multiple issues that SDD Constructions needed to address such that I do not accept that the works were merely final adjustments or that they would have been completed in one day. As just one example, the wardrobes were clearly incomplete and required further works to be undertaken before mirrored doors could even be installed.
i.	However, although I am satisfied that remedial works were required, which were undertaken by Concreting A100, it is clear that the Respondents did receive some benefit from SDD Constructions’ work. Indeed, the work that Concreting A100 undertook was not a demolition and reconstruction of SDD Constructions’ work but one of rectification and completion.
j.	For completeness, whilst I accept that it was SDD Constructions who breached the contract by not providing the services it agreed to provide for the reasons set out above, it does not follow that SDD Constructions misled the Respondent by not providing them with goods and services as requested. The Respondents did not properly elaborate their claim that SDD Constructions had misled them. I am not satisfied that SDD Constructions misled the Respondents.
is the applicant entitled to seek the rest of the contract price from the respondents?
42	Under s.184 of the ACLFTA, I have the power to award a number of remedies, which are more expansive and more favourable than what a party may be entitled to in contract law for a breach of contract.
43	Whilst I am satisfied that the Respondents should pay SDD Constructions a portion of the outstanding contract price, I am not satisfied that SDD Constructions is entitled to the full contract price. This is because:
a.	Whilst the Respondents did have all the items of work that they had sought from SDD Constructions completed, it was completed by another contractor.
b.	However, the Respondents should not be in a better position than what they were required to pay SDD Constructions had SDD Constructions fulfilled its obligations under the contract. The subsequent contractor who completed the work did not need to start again. As I have stated, it is clear that the Respondents received benefit from SDD Constructions’ work.
c.	At the same time, SDD Constructions ought not to benefit from receiving payments for works that it did not properly perform or perform.
44	Considering the various issues in this case and the powers given to me under s.184, I find that SDD Constructions is entitled to the sum of $3,007.40 from Mr Hareb, which is calculated as follows:
-	$11,440 (Agreed contract price under tax invoice dated 27 February 2020 including the reduction of $275 that Mr Dyer, according to his evidence, credited to the Respondents for having ordered the incorrect door for the rear of the house)
-	$5,857.50 (amount the Respondents have paid SDD Constructions)
-	$2,575.10 (which is the total invoice amount from $3,950.10 Concreting A100 minus $1,375 inclusive of GST which Concreting A100 charged for plastering)
= $3,007.40.
45	The sum of $3,007.40 represents the difference between the total price payable under the contract (as alleged by SDD Constructions) and the amount that the Respondents have already paid plus the amount that the Respondents paid in order to have SDD Constructions’ work remedied and completed (not including plastering).
conclusion
46	Given what I have found as set out above:
a.	SDD Constructions is entitled to the sum of $3,007.40 from the Respondents.
b.	Given that SDD Constructions has not substantially succeeded in its claim, I will not exercise my discretion under s.115C of the Victorian and Civil Administrative Act 1998 (Vic) and require the Respondents to pay SDD Constructions’ application fee in the sum of $311. That is a cost that SDD Constructions must bear.
47	I will make an order which reflects the above decision.

D. Kim
Member