Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Makkar v Solar Power Nation Pty Ltd [2023] NSWCATAP 187 Hearing dates: 3 July 2023 Date of orders: 13 July 2023 Decision date: 13 July 2023 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member P H Molony, Senior Member Decision: 1. Leave to appeal is refused. 2. To the extent that the appeal raises questions of law, the appeal is dismissed. Catchwords: APPEALS – new evidence not allowed as reasonably available at time of hearing – expert evidence – tradesman's report containing bare assertion to be given no weight – leave to appeal refused. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1987 (NSW) Cases Cited: CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Craig v South Australia (1995) 184 CLR 163 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Southwest Sydney Area Health Service v Edmonds [2007] NSWCA 16 Texts Cited: None Category: Principal judgment Parties: Manmohan Makkar – Appellant Solar Panel Nation Pty Ltd – Respondent Representation: Appellant – Self-represented Respondent - Mr Rahil Kapur (Senior Operations Manager) File Number(s): 2023/00140537 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 05 April 2023 Before: J Drennan, General Member File Number(s): HB22/43445 and HB22/49997 Reasons for decision Introduction 1. Mr Manmohan Makkar (the appellant) has made an internal appeal against a decision made in the Consumer and Commercial Division (the CCD) of the Tribunal on 5 April 2023. That decision related to two applications: one made by the appellant against Solar Power Nation Pty Ltd (the respondent) claiming the cost of rectifying damage to a roof at the appellant's holiday home during the installation of solar panels, and consequential damages resulting from delays in the installation. The other application was one made by the respondent seeking to be paid outstanding monies due for the installation of the solar power system of $8,329.00. The application to the Tribunal by the respondent was the first in time. 2. The Tribunal dismissed the appellant's claim for damages and ordered the appellant to pay the respondent the $8,329.00 outstanding. The Tribunal provided written reasons for decision. 3. The appeal was filed within time on 2 May 2023. In describing the grounds of appeal the appellant wrote – "The Tribunal erred the (sic) considering the facts and documents provided and failed to give proper weight and consideration to the evidence submitted. Also the decision is based on incorrect assumptions." 1. The respondent filed a reply to the appeal in which asserts that the decision was correctly made. 2. The appeal was listed for hearing before us on 3 July 2023. At the hearing, the appellant was self-represented while the respondent was represented by Mr Kapur, its senior operations manager. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the appeal panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on an element or central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel at [13] set out a non- exhaustive list of questions of law: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law had been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the appeal panel may grant leave to appeal from decisions made in the CCD are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the appeal panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 may have been suffered where: "… there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. If an appellant from a decision of the CCD has satisfied the requirements of cl 12(1) of Sch 4, the appeal panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the appeal panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. In the NCAT Act, s 81 deals with the determination of internal appeals by providing: "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following— (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance." 1. In circumstances where an appellant is not legally represented the Tribunal looks at the grounds of appeal generally to determine whether a question of law has in fact been raised and will consider it, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12]. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel explained at [13]: "13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]- [316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. Importantly, in Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]: "An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal." Materials before the appeal panel 1. in considering this appeal we have had regard to the following materials. 1. Notice of appeal with attachments filed 2 May 2023. 2. Reply to appeal filed on the 9 May 2023. 3. Respondent's bundle of documents filed 19 May 2023. 4. Respondent's additional bundle of documents filed 29 May 2023. 5. Appellant's bundle of documents filed 30 May 2023 excluding new evidence, namely: 1. statutory declaration of Soham Lakhia declared 28 June 2023; 2. Solar Retailer Code of Conduct; 3. Buying solar – advice for purchasing the new solar system from the Clean Energy Council. 1. The orders made by the appeal panel on 17 May 2023. 2. The decision under appeal dated 5 April 2023. 3. The original applications to the Tribunal made by the parties. 1. At the commencement of the hearing there was agreement that the respondent had not received the appellant's bundle of documents filed on 30 May 2023. The respondent had, however, seen all of that material apart from the new evidence. 2. We explained to the appellant that in order for him to rely on new evidence on appeal, he had to establish that the new evidence satisfies the requirements of cl 12(1)(c) of Sch 4 of the NCAT Act, i.e. that the evidence was not reasonably available at the time of the hearing. On its face, the statutory declaration from Soham Lakhia could have been obtained before the hearing, as could the code of conduct and the buying guide. In those circumstances we indicated that the new evidence the appellant sought to rely on was not admissible on the appeal. 3. In those circumstances, with the new evidence excluded, the respondent was content for the hearing to proceed despite the fact that it had not been served with the appellants bundle of documents filed 30 May 2023. It was aware of and had seen all the other documents before. The decision being appealed. 1. The Tribunal found that the appellant had not demonstrated that the respondent had damaged the roof of the house when installing the solar system. The solar system itself is working. 2. The Tribunal's considerations were mainly focused on whether there had been a breach of any of the warranties implied by s 18B of the Home Building Act 1987 (NSW) (the HBA). 3. In support of his claim for roof repairs the appellant relied on a report from Laksh Homes which the Tribunal discussed in its reasons. That report did not identify the nature of the damage to the roof, where on the roof it was to be found, or why it was considered to be damage caused due to the solar installation. The report relevantly said – "From our inspection we have established that roof structure was majorly damage during Solar panels installation." The structural area outside the solar panel installation is still intact. This clearly shows signs of poor workmanship while completing panel installation which have resulted to this damage. We have also found traces of leaking and sagging timber." 1. The Tribunal noted that the report was accompanied by a quote from Laksh Homes for "restoration and structural repairs" of the roof in the sum of $16,500.00. The report did not identify the work to be done other than in the most general terms. Laksh Homes had been paid a deposit for the work. 2. The Tribunal rejected the report from Laksh Homes because: 1. while the report indicated that there was roof damage, being leaking and sagging timber, it did not say why that damage had occurred (see [27]); 2. the report did not indicate how the solar installation had impacted on the roof (see [28]); 3. the report was not considered impartial as Laksh Homes quoted for and took a large deposit for doing renovation works on the roof. 1. The Tribunal said: "32 Mr Makkar says the leak caused damage to the internal ceiling on RHS of house above the bedrooms below the solar installation however the quote from Laksh talks about a roof restoration and not any associated ceiling repairs? I find that the Laksh expert report does not assist Mr Makkar to prove on the balance of probabilities that SPN damaged his roof. 33 Mr Makkar had a roofer look at the roof on 27July 2022. The quote and cost of repair provided by C & D Rapley (the roofer) is on page 63 in the evidence bundle of the applicant. The roofer found that the roof tiles are very brittle and they had to replace three tiles that were broken above the air conditioning unit. (it is not clear to me where this unit is located). I give this report considerable weight because C & D Rapley have quoted for ceiling works without taking a deposit- they remain independent. They also repaired the roof to Mr Makkars satisfaction, and I find that they are suitably qualified to have performed such work. In addition, C & D Rapley actually identified an issue with three roof tiles. They do not however tell me that SPN have damaged those tiles. C & D Rapley provide that the cost to repair the ceiling an associated damage is $2750 plus painting of $660. They do not find that the entire roof needs replacing. 34 I find that there is not enough evidence to convince me on the balance of probabilities that the installation works caused the roof to be damaged. 35 I find on the balance that Mr Makkars roof -of itself- has caused his leaking issue because the tiles are brittle. I find that if the tiles are brittle, and I find on the balance Mr Makkar has an old roof that needs repairs." 1. The Tribunal then turned its attention to the claim for damages due to delay in the sum of $10,000.00. The Tribunal found that this claim related to three separate periods of delay. 1. From the initial order on 14 December 2020 to 25 January 2022 when the appellant requested a refund. The Tribunal found at [37] – "[T]he interruptions caused by Covid-19 during 2020 and 2021 may have impacted on both Mr Makkar and SPN's relevant positions." 1. From 25 January 2022 to 13 March 2022 when the installation occurred. The Tribunal found this a reasonable amount of time to complete the installation (at [39]) and that time "was not of the essence." 2. In following up complaints after installation. The Tribunal found at [39] a constant pattern of the appellant chasing the respondent and "receiving responses to no avail" in this period. When the respondent actually inspected is unclear, as their installer's report is undated. This caused the Tribunal to reject that report as unreliable. The Tribunal also rejected the appellant's contention that the respondent, "deliberately delayed attending so that he would suffer greater loss." The Tribunal found "no evidence to support such a contentions", at [47]. 1. The Tribunal concluded. "48. As Mr Makkar has not succeeded in his claim regarding negligence or delay, the compensation claims, including consequential losses of Air B&B bookings, the cost to remove and reinstall the system, to replace AC and electricals and for repainting and for further cleaning also fail. 49. SPN are seeking final payment for the system that has been installed. Mr Makka has only paid $100 towards the cost of the system and install. 1. The Tribunal therefore dismissed the appellant's claim and ordered the appellant to pay the respondent monies owing for the installation of the solar system. Consideration – questions of law. 1. We have reviewed the Tribunal's decision with care and considered the submissions of the appellant and the respondent. The appellant's submissions consist of some 23 separate paragraphs, most of which contain assertions of fact or opinions that seek to cavil with the conclusions of fact reached by the Tribunal, rather than raising questions of law. The submissions also contain a number of paragraphs that deal with the law of negligence, which is not applicable in the present circumstances. There is no relevant question of law raised in the written submissions. 2. In oral submissions the appellant made an assertion to the effect that that no reasonable person could reach the conclusions which the Tribunal did, as there was no evidence to support them. These assertions raise the issue of whether there was no evidence before the Tribunal on which you could make its findings, and whether the Tribunal's conclusions were ones that no reasonable tribunal could reach. Both, if correct, give rise to questions of law. 3. At the heart of the Tribunal's conclusion was that: 1. it was agreed that the solar system is working; 2. the report from Laksh Homes was not provided by independent and uninterested tradesmen or expert. It made a bare assertion that the installation of the solar system had caused problems with the roof, but provided no details of what those problems were and no explanation as to how they arose from the installation; 3. the report from the C & P Rapley was sufficiently independent. It found that the leaks were due to broken and brittle tiles, to which no cause related to the installation of the solar panels was made; and 4. the problems of the roof were therefore not demonstrated to arise from anything done in the course of the solar installation. 1. We think that each of those conclusions was open to the Tribunal on the evidence before it. In this case, due to the size of the respective claims, the Tribunal's Practice Direction 3 – Expert Evidence did not apply. Irrespective of whether or not the Practice Direction applies, opinions as to the cause of matters requiring expertise, such as the cause of roof leaks, should state both the factual matters upon which any opinion is based and either the reasons or process of reasoning which led to that opinion: see Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30. A bare assertion such as the "roof structure was majorly damage[d] during Solar panels installation" does not explain (1) what the damage is, or (2) how the conclusion that it was damaged during solar installation was reached. Such a bare assertion should be given no weight: see Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271, per McColl JA, with whom Mason P and Beazley JA agreed at [85]-[86], and Southwest Sydney Area Health Service v Edmonds [2007] NSWCA 16 per Giles J at [5] – [6] and McColl JA at [130] –[131]. We think that the Tribunal was correct to reject the Laksh Homes report. 2. The difficulty for the appellant was that his case relied on the report provided by Laksh Homes, which could be given no weight. Once it was discounted, his case lost its foundation. The report from C & P Capley did not assist him as it did not attribute the broken tiles to the solar installation. His assertions that the leaks only occurred following the solar installation, do no more in terms of proof than point to a coincidence of time. They do not demonstrate that the problems with the roof (whatever they are) were caused by the solar installation. 3. Therefore, the unreasonableness ground is not made out. Similarly, we think the conclusion reached by the Tribunal was one that was reasonably open to it on the available evidence. Consideration – leave to appeal. 1. The appellant also seeks to appeal on the basis that the conclusions reached by the Tribunal, with respect to the cause of the roof leaks, was not fair and equitable and against the weight of the evidence. This requires leave to appeal. For the reasons given above with respect to the question of law, we are not persuaded that the Tribunal's decision - that the roof leaks were not shown to result from the solar installation - was against the weight of the evidence or was one that was not fair or equitable in the circumstances. Given the absence of evidence of any weight going to the cause of the roof leaks, and of any connection to the solar installation, the conclusion reached by the Tribunal was entirely predictable. 2. With respect to the claim for consequential damages due to delay, the appellant complains that the Tribunal did not give enough weight to his many emails enquiring about the installation, and that the result is therefore unfair. The emails demonstrate that the appellant asked about installation on a series of occasions, over a period of more than year prior to it occurring, and that installation only occurred after his claim for a refund forced the issue. They also demonstrate that the appellant acknowledged that, given the circumstances pertaining at the time, together with geographic isolation of the property, completion of the contract by installing the system during Covid was not something that could be readily achieved. This correspondence is entirely consistent with the Tribunal's conclusion that time was not of the essence. 3. The Tribunal was critical of the delays that occurred in addressing complaints following the allegedly faulty installation on 14 March 2022. The difficulty with seeking compensation associated with those delays is that there was no evidence that the respondent was responsible for any of the defects said to give rise to them, the appellant's case having failed on the question of causation of damage. Consequential loss occasioned by those delays could therefore not be recovered against the respondent. 4. We add that there was a paucity of evidence before the Tribunal as to what those losses were. 5. We are not persuaded that the decision of the Tribunal was against the weight of the evidence or that its decision was unfair or inequitable. There is nothing that would persuade us that the appellant may have suffered a substantial injustice by the Tribunal's decision. He always faced difficulty in proving his claim. There is no issue of principle or matter of public importance arising in this appeal. The decision was made in an orthodox manner. 6. As there was agreement that the solar installation is working, the appellant was always going to have to pay for it, whether or not he received any damages or compensation. In the event, his application was dismissed. We can see no error in the order for payment of the money owing to the respondent for the installation. Orders 1. The appeal panel makes the following orders: 1. Leave to appeal is refused. 2. To the extent that the appeal raises questions of law, the appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2023