It is not necessary for me to draw an inference from the failure to respondent’s adduce such evidence. However the absence of relevant evidence leads me to conclude that the respondent has not satisfied the evidentiary onus imposed on it by section 4(2) to establish reasonable grounds and therefore according to section 4(1) I find the representation misleading and thus a contravention of section 18 of the ACL. Even if the respondent had discharged the evidentiary onus under section 4(2) I am satisfied on the totality of the evidence on the balance of probabilities that: Ms Qamaruddin did not seek to add any additional area to the design after the email of 12 April 2016; and the reason for the increase in overall size, and hence cost, was that Mr Russell made an error in calculating the overall size which only became apparent when the architect translated his draft plans using her computer design program. Mr Russell while not admitting the increase in overall size, and therefore cost, was caused by his miscalculations, asserted when questioned by the Tribunal that the reduction of 10 square metres to a floor plan of 230m2 was, my “In mind in the big scheme of things, it - in my mind, have made a wouldn’t difference, you have wouldn’t noticed.” I do not accept Mr assertion that a reduction in size of 10m2 is Russell’s insignificant because: Based on Mr own calculations as set out in Option 1 of his email Russell’s of 12 April 2016 decreasing the area of the base package by around 5m2 from 230m2 to 225m2 would result in a reduction in price of $20,000. 10m2 is equivalent to many single bedrooms I do not accept that a – reduction of this size can be achieved without being noticed, even over a total area of 230m2. Ms Qamaruddin had made it clear that she wanted to preserve as much area as possible within her budget. Remedy
It is not necessary for me to draw an inference from the respondent’s failure to adduce such evidence. However the absence of relevant evidence leads me to conclude that the respondent has not satisfied the evidentiary onus imposed on it by section 4(2) to establish reasonable grounds and therefore according to section 4(1) I find the representation misleading and thus a contravention of section 18 of the ACL. Even if the respondent had discharged the evidentiary onus under section 4(2) I am satisfied on the totality of the evidence on the balance of probabilities that: Ms Qamaruddin did not seek to add any additional area to the design after the email of 12 April 2016; and the reason for the increase in overall size, and hence cost, was that Mr Russell made an error in calculating the overall size which only became apparent when the architect translated his draft plans using her computer design program. Mr Russell while not admitting the increase in overall size, and therefore cost, was caused by his miscalculations, asserted when questioned by the Tribunal that the reduction of 10 square metres to a floor plan of 230m2 was, “In my mind in the big scheme of things, it - in my mind, wouldn’t have made a difference, you wouldn’t have noticed.” I do not accept Mr Russell’s assertion that a reduction in size of 10m2 is insignificant because: Based on Mr Russell’s own calculations as set out in Option 1 of his email of 12 April 2016 decreasing the area of the base package by around 5m2 from 230m2 to 225m2 would result in a reduction in price of $20,000. 10m2 is equivalent to many single bedrooms – I do not accept that a reduction of this size can be achieved without being noticed, even over a total area of 230m2. Ms Qamaruddin had made it clear that she wanted to preserve as much area as possible within her budget. Remedy