Denigan v Dex Enterprises Pty Ltd [2023] QCAT 317

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Denigan v Dex Enterprises Pty Ltd [2023] QCAT 317 PARTIES: BERNARDINE DENIGAN (applicant) v DEX ENTERPRISES PTY LTD (respondent) APPLICATION NO/S: 1271/21 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 25 July 2023 HEARING DATE: 27 June 2023 HEARD AT: Brisbane DECISION OF: Adjudicator Scott-Mackenzie ORDER: The proceeding is dismissed. CATCHWORDS: MINOR CIVIL DIPUTE – contract for the supply and hanging of wallpaper – wallpaper peeling and mould on walls and wallpaper – whether cause of peeling and mould established – adequacy of evidence APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr Exner, Dex Enterprises Pty Ltd REASONS FOR DECISION Introduction [1] On 30 November 2021 the applicant made application to the Tribunal for payment to her of $6,858.00 together with the filing fee on the application, $127.50, a total of $6,985.50 (application). [2] The explanation for the claim is in the following terms: Paintright [the respondent] had sold me a product that was unsuited to Cairns tropical conditions and they knew how I was going to use it and where. Paintright did not advise me that there was a risk placing the paper on walls with windows. The manufacturer and Paintright had failed to provide instructions or advice on what type of conditions were suited and unsuited to use the -- 1 of 4 -- 2 product in. Paintright have a trade responsibility to accept the faulty product back and provide me a full refund. [3] The following documents were filed with the application: (a) quotation number 40101000259 Paintright to the applicant for $3,705.00 dated 10 February 2020; (b) quotation number 40101000318 Paintright to the applicant for $2,153.00 dated 26 June 2020; (c) several photographs; and (d) particulars of the claim (annexure A). Particulars of the claim [4] The applicant asserts that on 10 February 2020 she obtained from Paintright a quotation for the supply and hanging of wallpaper. Paintright did not provide a warning the wallpaper is unsuitable for hanging in specified conditions. The wallpaper contained no such warning. [5] The quotation was accepted by the applicant. On 28 May 2020 the respondent hung the wallpaper. [6] On 26 June 2020 the applicant obtained from Paintright a second quotation to supply and hang additional wallpaper. The second quotation was accepted by the applicant and, on 30 September 2020, Paintright supplied and hung the additional wallpaper. [7] Within a week, the applicant states, the wallpaper started to peel off the walls. The respondent returned and re-hung the wallpaper. [8] Mould appeared and spread. The applicant attempted to remove the mould, but without success. [9] An “expert” inspected the walls. He or she is not named and did not provide a report or give evidence at the hearing of the proceeding. The expert, after inspecting the walls, it is said by the applicant, advised her: (a) that there was no moisture in the wall and that it was near impossible given it was a new building with buildings superior ventilation; (b) the problem was the wallpaper; (c) in the tropics mold [sic.] forms in places where hot air met [sic.] cold air around windows and doors and that mold spores attaches and grows on rough surfaces; and (d) that such wallpaper was not suited to the tropics and judging by the rapid spread of the mold and the inability to stop its spread, that the only solution was to remove it as soon as possible before it started to reach other walls. -- 2 of 4 -- 3 [10] The applicant contacted Paintright which, in turn, contacted the manufacturer of the wallpaper. The manufacturer refused to accept a return of the wallpaper and Paintright refused to refund the cost to supply and hang the wallpaper. [11] The mould continued to spread. [12] The applicant also claims $1,000.00 for the cost to repaint the walls. Evidence of the cost was not filed in the Tribunal. Substitution [13] On 21 June 2023 the respondent was substituted as respondent to the proceeding in the place of Paintright Pty Ltd. Response [14] On 21 June 2023 the respondent filed a response to the application (response). In part C, the details of the response, the respondent states: Applicants Claim “Dex Enterprises Pty Ltd Sold me a product that was unsuitable to Cairns Tropical Conditions”. Our response. This is false. We have been selling wall paper in Cairns for 18 years. We have never had a complaint regarding mould. We have sold hundreds of roles to homes, commercial properties, shops and schools. Please note, Bunnings are the largest seller of wallpaper in Australia. Where we have sold 100s of rolls, they would have sold thousands of rolls in Cairns over that 18 years. No where in their wallpaper section are there any warnings about mould. Not here in Cairns, not in Darwin (I checked) and not in any of their 507 stores. Yet the Applicant expects us, a small family owned paint shop to provide a warning. This is as absurd as telling people not to use a hair dryer in the shower. The applicant lives in Tropical Cairns, within 50mtrs from the beach & 100mtrs from a Saltwater river. Her curtain supplier or carpet supplier don’t advise on mould. Applicants Claim “The Manufacturer failed to provide instructions or advice on what type of conditions were suited to use the product in”. Covered above. But no wallpaper supplier in Australia does. I am happy to provide the suppliers details but she would need to file a case against them. We are just a reseller. [15] The respondent filed with the response photographs locating the applicant’s property and louvre windows. Hearing [16] The application was heard by the Tribunal on 27 June 2023. [17] The applicant appeared in person by video. Mr Exner appeared on behalf of the respondent, again by video. Evidence [18] The applicant expanded on the particulars of the claim. She stated the wallpaper started to peel the day after it was hung. The mould appeared and spread across the walls. She referred to the expert’s inspection and advice. -- 3 of 4 -- 4 [19] No moisture, the applicant states, was entering the premises. [20] The wallpaper has been removed. The mould, the applicant states, has disappeared. [21] The applicant tendered by email several photographs showing mould on the walls and the damaged walls. [22] The applicant conceded the wallpaper may have peeled off the walls for a number of reasons. The paint on the walls peeled off when the wallpaper was removed, the applicant stated. [23] Mr Exner stated the paint peeled due to moisture in the walls. A photograph filed in the Tribunal shows moisture on the walls. [24] The applicant asserted any moisture was in the wallpaper, and the peeling was as a consequence of how it was hung. Discussion [25] The applicant was offered an opportunity to apply for an adjournment of the proceeding to obtain expert or other evidence on the cause of the peeling of the wallpaper and mould. She declined the offer. [26] In general terms, mould grows in damp, dull light, and poorly ventilated spaces. It may form on any surface, in particular dirty surfaces, organic materials (e.g., paper, card, leather, parchment and linen), glues and the chemicals found on videos, film and compact discs. [27] Mould is a health hazard. [28] It is likely the cause of the peeling of the wallpaper and mould are related, and I so find. The likely cause, I further find, is water or moisture. What is not clear on the evidence before the Tribunal is whether the water or moisture was present in the walls or wallpaper. It is likely to be the former. [29] As I have said, the walls were inspected by a person said to be an expert who advised the applicant there is no moisture in the walls and “… the problem is the wallpaper…” He or she, as I have said, did not provide a report or give evidence to the Tribunal on the hearing of the application. [30] In the absence of any or any satisfactory evidence about the cause of the peeling of the wallpaper and mould, I cannot be satisfied to the requisite standard they were as a result of water or moisture in the wallpaper or, indeed, any other defect, the manner in which the wallpaper was hung, or the glue used. As I have found, the peeling of the wallpaper and mould are likely to be related. The cause, however, has not been established. The several possibilities conceded by the applicant include the absence of any fault on the part of the respondent. Decision [31] The decision of the Tribunal is the proceeding is dismissed. -- 4 of 4 --