Civil and Administrative Tribunal New South Wales Medium Neutral Citation: P & N NSW Pty Ltd t/as Euro Solar v Park (No 2) [2018] NSWCATAP 242 Hearing dates: On the papers Date of orders: 15 October 2018 Decision date: 15 October 2018 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member Dr J Lucy, Senior Member Decision: (1) A hearing be dispensed with. (2) The appellant to pay the respondent the sum of $6,000.01 on or before 29 October 2018. Catchwords: CONSUMER CLAIM – order for compensation PRACTICE AND PROCEDURE - new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 Galdona v Peacock [2017] NSWCATAP 64 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202 Texts Cited: Nil Category: Principal judgment Parties: P & N NSW Pty Ltd t/as Euro Solar v Park (Appellant) Biho Park and Eun Hwa Park (Respondents) Representation: Solicitors: Y S Lawyers (Appellant) Respondents Self-Represented, Mrs Park appearing File Number(s): AP 18/25537 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 May 2018 Before: G Meadows, Senior Member File Number(s): HB 18/17338 REASONS FOR DECISION Summary 1. The matter was heard on 13 August 2018. On 29 August 2018, we published our written reasons, P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202 (the first appeal decision). 2. For the reasons there stated, we allowed the appeal, quashed the orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal in matter HB 18/17338 of 10 May 2018, and decided to conduct a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). 3. Both parties were directed to file and serve written submissions by 12 September 2018 in relation to the orders the Appeal Panel should make, and whether the new hearing can be held "on the papers" and without the parties attending a further hearing. Each was given a right of reply to 26 September 2018. 4. In their submissions, both parties agreed that the matter should be decided on the papers. Accordingly, we direct that a hearing be dispensed with pursuant to s 50(2) of the Act. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions provided to us. 5. For the following reasons, we have decided to order the appellant (Euro Solar) to pay the respondents (Mr and Mrs Park) $6,000.01. That amount is to be paid within 14 days. Background 1. It is appropriate to repeat what we said at pars [9] to [16] of the first appeal decision by way of background. 2. On 6 December 2016, the Parks lodged application HB 16/53236. They sought the following relief: A. What orders do you want? We are looking for a rethink on the backup battery power box which we paid $8,800 for. It does not work the way they promised it would, and hence it is of no use to us. For this item they did not even give us a warranty, receipt or an instruction manual. B what are your reasons for requesting the orders? On 05/09/2016 Euro Solar came and installed 20 solar panels in one solar box backup battery system at our house [in] Tennyson, NSW, 2754. Total price is $13,100, with the 20 solar panels costing $4300, and the solar box backup battery system costing $8800. However, we seem to get out that the solar box backup battery system did not work the way they promised it would. When they came to our house to install the products, we noticed that they had brought the backup battery system from somewhere other than their store, and that they were just installing the battery system with no clear idea how it would work. Even still, they told us that would work in such a way, it ended up not being true. Hence we are looking for a full refund of $8800. After contacting fair trading about this issue, the trading contacted Euro Solar, and afterwards emailed us saying that Euro solar it said they will contact us to resolve this issue. For more details, please see the attachment. However, Euro Solar did not get back to us, and hence that is the reason why we are using this means. 1. Attached to the application is a detailed statement of Mrs Park dated 21 October 2016. In that statement, she explains how she calculated the figure of $8,800.00 sought as compensation. She states: . . . After all of this, you suggested we should get the 20 solar panels and one solar box backup battery system at $13,100 .… When you first gave us the quotation, you said that the 20 solar panels were $4300. Since $13,100 - $4300 equals $8800, it follows that the solar box backup battery system was $8800. So I would like you to send the $8800 as a bank cheque to [me] by 28/10/2016. 1. On 19 January 2017 the matter was listed for conciliation and hearing by the Tribunal. By consent, a work order was made in the following terms: By consent, the Tribunal orders that the respondent: P & N NSW Pty Ltd t/as Euro Solar . . . is to carry out the following work on or before 20-February-2017 in a proper and workmanlike manner. Details of Work order: a. Reconfigure the battery pack so it operates only during blackouts; b. The system is to operate using the grid only if there is no solar energy; c. The battery is to remain full charged on stand-by for blackouts and will become operational when there are blackouts. 1. The Parks allege that that order was not complied with. On 12 September 2017, they lodged renewal application HB 17/39353. Again, they sought an order that they be paid $8,800.00 compensation. The reasons for seeking that order are stated as follows: . . . On 05/09/2016, Euro Solar came to our house and installed 20 solar panels and a battery back-up system box for $13100. They informed us that these items were best suited for our needs, and convinced us that they were quality items. The solar battery back-up system box did not work from the day it was installed. As a result, we contacted Euro Solar many times, and each time, they would tell us that they would get back to us. However, they never did anything to attempt to resolve this issue. We contacted Fair Trading, and Fair Trading told Euro Solar to contact us in order to resolve this issue. However, Euro Solar did not contact us, and we brought this issue to the NSW Civil & Administrative Tribunal. At the Tribunal, we met with Euro Solar, who promised to make the solar battery system work. Euro Solar came to our house, and 'fixed' the back-up battery system box. There is a screen on the box, which shows the state of the electricity, how much the battery is charging, and if there are any faults with the system. However, after they Euro Solar left, the screen on the box was blank. We called Euro Solar, and they sent an electrician to have a look. The electrician told us that the screen on the back-up box would turn on if we turned off our whole power and then turned it back on. This worked. However, once the electrician left, we encountered the same problem, and the screen would just show blank. It is not practical that we must turn our whole power off, and then turn it back on every time just to make the screen on the back-up box turn on. In addition to this, the back-up battery box emits strange noises after 11pm at night, which is a source of concern for us. We do not know what the noise is, and whether the noise may represent a problem of the box which could be dangerous to us. At this point in time, we contacted Euro Solar again, and they said they would send someone to come have a look if we informed them of the payment method we would utilise for the $250 cost. We do not understand how Euro Solar can install a back-up battery system box without knowing how it works and how to fix any problems that may arise. We do not want to contact Euro Solar anymore. As the back-up box is next to our living room inside the house, it is a source of great concern that the screen does not show. We cannot see if there are any problems with it, or if it may be dangerous for our family in any way, as it is dealing with electricity. We cannot see what situation the back-up box is in, and what the noises coming from the box may represent. Euro Solar made us buy an item that even they don't know the technicalities of. For this item, they provided no warranty, no receipt and no manual book about the battery box system. We do not want any more stress that comes with this dangerous battery box in our house. As a result, we would like a full refund. One and a half weeks ago, we contacted Euro Solar asking for a full refund, but they never responded. (This is the actual text in the application, but we have added paragraph breaks for clarity) 1. On 9 March 2018, another work order was made. This required Euro Solar to carry out the following works by 11 April 2018: 1 . . . (a) The work required to be done under the work order made on 19 January 2017 in matter HB 16/53236. (b) Rectify all compliance matters raised in the report of John Beazley dated 3 February 2018. (c) Provide the applicants with all necessary paperwork including manual, warranty papers and other papers. 2. The applicants are to permit the workmen engaged by the respondent to access the premises and carry out the work, provided that any request for access shall be made on 48 hours' notice. 3. At the conclusion of the works the respondent will pay for Mr John Beazley of JBEC Installation & Service to inspect the works and provide a report to both the applicants and the respondent. Any issues remaining are to be repaired by another licensed operator to be engaged by the applicants and paid for by the respondent. The application may be renewed if necessary to enable such cost to be recovered 3. The applicant is granted leave to renew these proceedings. 1. The report of Mr Beazley of 3 February 2018 was obtained by the Parks. It states: At the customers request I have revisited the site at [XXX] repaired works to their solar hybrid system. The LCD screen was operating but it showed that the batteries and the house were being supplied by the grid. It doesn't make any sense to charge your batteries from the grid. Maybe this is just a programming error ? The batteries and the inverter were still installed in the same position in the pantry with the isolation devices being non accessible and the inverter almost touching a sink. There also appeared to be a lack of safety labelling at the inverter /battery system . See rule 7.2.2 in the CEC battery install guidelines . Battery systems and pre-assembled lESS shall not be installed in the following locations . Habitable rooms. See appendix 8 CEC battery install guidelines Section 4 4 AS 5033 lsolators shall be readily available. Section 6 AS 3000 installations in damp situations. 1. As we noted in par [17] of the first appeal decision, the report refers in the first sentence to reviewing the "repaired works". It states that the LCD screen was operating, and criticizes the location of the batteries and the inverter (being situated in the pantry), and that the isolation devices were not accessible. However, the report does not, either implicitly or explicitly, make any reference to the backup battery not working. 2. The Parks allege that that work order was not complied with either. On 16 April 2018, they filed renewal proceedings HB 18/17388, the proceedings the subject of this appeal. In their application, the Parks stated: A. Which Orders are you seeking to renew? Euro Solar failed to fix the battery box before 11/04/18 as ordered by the tribunal. Therefore we are asking for a full refund. B. How have the orders not been complied with? Euro Solar failed to fix the battery box before 11/04/18 as ordered by the tribunal. The battery box has been broken for over two years. Also, the tribunal has ordered them to fix the battery box. However, they intentionally failed to make appropriate contact with us in order to stall time as they did not know how to fix the battery box (as many other times in the past). Therefore we are asking for a full refund. C. What orders do you want? Order for the payment of money: $8,800.00. . . . Other orders: As ordered by the tribunal, we have asked three separate experts to come and provide insight into the condition of the battery box in the past. Therefore we are asking for an extra $560 to compensate for the costs associated with having these experts visit our house. Relevant factual findings 1. It is common ground that on or about 5 September 2016, the Parks purchased a solar power system and back up battery from Euro Solar for $13,100 and Euro Solar installed the 20 panel system and battery pack at their premises. 2. The critical issue is whether or not the Parks have established that the solar system, or the back up battery, is not working properly, or at all. We make the following relevant findings. 3. Given the work orders made by the Tribunal on 19 January 2017, we find that, at that time: * the battery pack operated at all times rather than only during blackouts; * the solar system operated using the grid at all times rather than when there was no solar energy as envisaged; * in addition to the battery pack being operational during blackouts it was operational at other times. 1. Given the work orders made by the Tribunal on 9 March 2018, we find that, at that time: * the work required to be done under the work order of 19 January 2017 had not been done; * the LCD screen for the solar system was operating but it showed that the batteries and the house were being supplied by the grid, rather than the battery. 1. As at 10 May 2018, the battery pack was not working at all. We make that finding based on the uncontradicted evidence of Mrs Park at the hearing before the Tribunal that day. Mrs Park said that "the solar is working but [the battery pack is not working", and twice stated that the battery was not working "at all". Mrs Park explained that she was seeking a refund of the cost of the battery. 2. The evidence before the Tribunal, which we accept, was that since the work order of 9 March 2018, Euro Solar had not attended the Parks' premises to undertake any repairs or to rectify the compliance matters referred to in the report of John Beazley dated 3 February 2018. Accordingly, there is no probative evidence before the Tribunal on 10 May 2018, or before the Appeal Panel, which contradicts Mrs Parks' statements that the battery pack was not working. Euro Solar's submissions 1. Euro Solar submits that the Parks' claim should be dismissed, on the basis that they have not satisfied the onus that they are entitled to the $8,800 they seek. In particular, Euro Solar relies on par [45] of the primary decision, in which we referred to the Tribunal's finding that the Parks' calculation in coming to the figure of $8,800 was "fairly rough and ready" and "self-evidently a flawed approach". 2. This submission overlooks the additional evidence that Euro Solar relies on in its appeal. That is the document we marked as "Q", being the sales order of Luxco Energy Pty Ltd dated 5 June 2018 in the sum of $6,000.01 (referred to in par [61] of the first appeal decision). 3. In the alternative to its primary submission that the Parks' claim be dismissed, Euro Solar submits that it be granted access to the Parks' premises so that it can carry out the works the Tribunal ordered in January 2017 and again in March 2018. In this respect, it relies on s 48MA of the Home Building Act 1989 (NSW) (Home Building Act). In addition, Euro Solar notes the Parks' "change of heart", in now wanting it to attend their premises to remove the back up battery, a matter not sought in their application, in circumstances where at the appeal hearing the Parks were opposing Euro Solar returning to their property. Accordingly, Euro Solar submits that it be allowed to return to the property to carry out the previous work orders, to rectify the compliance matters raised in Mr Beazley's report of 3 February 2018, and to provide all "paper work" (being a "manual, warranty and other papers") to the Parks. 4. In the further alternative to these orders, Euro Solar submits that it be ordered to engage a third party, Luxco Energy Pty Ltd, to attend the Parks' premises and to carry out the work the subject of the March work order of the Tribunal. Mr and Mrs Park's submissions 1. The Parks do not want to attend another hearing. They simply ask that the Appeal Panel order a refund of $8,800 for the back up battery which they say has been faulty for two years. In addition, they ask that Euro Solar be ordered to remove the back up battery. In doing so, they ask that Euro Solar ensure that the 20 panels solar system is working correctly. Reply submissions 1. Neither party filed submissions in response to the other party's submissions. Consideration 1. This matter has had a long history. The guiding principle of the Act (namely the just, quick and cheap resolution of the real issues in the proceedings: s 36(1)), requires that we make appropriate orders for the final resolution of this matter. 2. Given our finding that the battery pack does not work, we decline to dismiss the Parks' application. Nor do we consider that it is appropriate to again order Euro Solar, or some other person, to attend the Parks' premises to repair the battery. Euro Solar had ample opportunity to do so, and indeed was ordered to do so by the Tribunal on 9 March 2018, but failed to do so. 3. As to s 48MA of the Home Building Act, that section requires us to have regard to the principle that that rectification of the defective work by the appellants was the preferred outcome. Section 48MA does not make the preferred outcome the mandatory outcome: Galdona v Peacock [2017] NSWCATAP 64 at [65]. A similar conclusion was reached in Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23, where the Appeal Panel set out the relevant principles relating to s 48MA. These were paraphrased by the Appeal Panel in Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 at [17] to [21]. 4. Given the attitude of the Parks to Euro Solar attending their premises again, and Euro Solar's non-compliance with a previous work order of the Tribunal, we decline to make any order as suggested by Euro Solar that it or another company attend the Parks' premises. 5. We consider therefore that the appropriate final disposition of the Parks' application should be that the Parks be compensated for the cost of replacement of the battery. The evidence is that the costs of new battery is $6,000.01. 6. We decline to make any other order sought by the Parks. We do not think that it is appropriate to order Euro Solar to return to their property to either remove the battery or to ensure that the solar system is working correctly as part of this application. Orders 1. For the above reasons, we make the following orders. 1. A hearing be dispensed with. 2. The appellant to pay the respondent the sum of $6,000.01 on or before 29 October 2018. ********** 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: 15 October 2018