Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Solar SG Pty Ltd t/as Solar Service Group v Hufton [2019] NSWCATAP 147 Hearing dates: 22 January 2019 Date of orders: 17 June 2019 Decision date: 17 June 2019 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – Leave to appeal on a ground other than a question of law – Whether Tribunal's decision fair and equitable – Whether Tribunal's decision against the weight of evidence – Whether significant new evidence had arisen since the hearing below – Whether leave should be given to admit evidence available below Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Cases Cited: CSR Ltd v Bouwhuis [1991] NSWCA 295 Collins v Urban [2014] NSWCATAP 17 Nominal Defendant v Manning (2000) 50 NSWLR 139 Pholi v Wearne [2014] NSWCATAP 78 Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187 Category: Principal judgment Parties: Solar SG Pty Ltd t/as Solar Service Group (Appellant) Bryan Hufton (Respondent) Representation: Mr D Rogers (Appellant's director) B Hufton (Respondent in person) File Number(s): AP 18/50129 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 14 November 2018 Before: S De Jersey, General Member File Number(s): GEN 18/32662 REASONS FOR DECISION 1. The appellant ("Solar Service Group") applied for leave to appeal from a decision of the Tribunal in proceedings GEN 18/32662 requiring it to pay to a customer, Mr Hufton, the value of a servicing package, which it sold with a solar battery. The basis for doing so was the Tribunal's finding that Solar Service Group's conduct, when entering into the contract with Mr Hufton over the telephone, was unconscionable. 2. Solar Service Group argued that the Tribunal's decision was against the weight of evidence, not fair or equitable, and that significant new evidence had arisen that was not available at the hearing. 3. Solar Service Group sought to rely, in its appeal, on a transcript of a recording of the telephone conversation with Mr Hufton during which the contract was formed (the new evidence), even though it had not put this in evidence before the Tribunal. 4. We decided not to admit the transcript, as the recording was available to Solar Service Group at all times. Solar Service Group made deliberate decisions not to provide it to Mr Hufton prior to the hearing when he requested it, and not to provide it to the Tribunal. 5. We are not satisfied that Solar Service Group had established any basis on which we could grant leave to appeal. Accordingly, we have refused leave to appeal and we have dismissed the appeal. Background 1. Mr Hufton had a solar system in place at his home. In December 2017, he received a standard mailout letter from Solar Service Group inviting the recipient of the letter to participate in a solar battery data analysis program. 2. Mr Hufton rang Solar Service Group on a telephone number provided in the letter. During the telephone call, Mr Hufton agreed to purchase a battery and enphase storage system from Solar Service Group. 3. Mr Hufton agreed to pay $5,628 for the battery, enphase storage system and five-year platinum service. He was told by Solar Service Group that the value of the platinum service component was $2,000. Mr Hufton paid a deposit of $1125.60 over the telephone. When Solar Service Group installed the battery, he paid the balance of the invoice. 4. After the battery was installed, Mr Hufton emailed Solar Service Group saying that he did not recall agreeing to the platinum service and asking for a copy of the voice verification contract (the contract the parties entered into over the telephone). Solar Service Group refused to send him a copy, saying it was for their training and coaching purposes only. 5. Mr Hufton brought proceedings in the Consumer and Commercial Division of the Tribunal seeking an order that Solar Service Group pay him $2,000, as a refund of its five-year platinum service. 6. Mr Hufton gave evidence that he was told, in the telephone call with a salesperson from Solar Service Group, that he had to have the "platinum service" at a value of $2,000. He said that he was not advised of a cancellation fee during the telephone call. He also said that he tried to cancel the contract prior to installation but was told that the cancellation fee was $450. 7. Solar Service Group argued before the Tribunal that Mr Hufton entered into a voice verification contract and that he was bound by its terms as canvassed in the telephone call. However, it did not provide a transcript of that telephone call as part of its evidence and refused to provide a copy to the applicant. It said that it would not do so because the contents of the telephone call were for training and development purposes only. It relied upon the terms and conditions and "welcome pack" which were sent to Mr Hufton after the telephone call. 8. The Tribunal found that the claim was a consumer claim under s 79E of the Fair Trading Act 1987, and the Tribunal had jurisdiction. 9. At paragraph [7] of the reasons, the Tribunal stated: The primary defence of the respondent is that the applicant entered into a "Voice Verification Contract" and he is bound by its terms as canvassed in the Telephone Call. However, the respondent has not provided a transcript of that "Voice Verification Contract" as part of its documentary evidence and to date has refused to provide a copy to the applicant. The respondent explains this by saying that the contents of the Telephone Call are for training and development purpose only. I do not accept this submission; it is contradictory to say that it is a form of verbal contract but then say it can only be used for training and development. I find that its purpose was to constitute a contract, because it is clear that there were pre contractual discussions during the Telephone Call, and a deposit was paid. 1. The Tribunal accepted Mr Hufton's oral evidence about what was said over the telephone and made the following findings of fact: 1. The salesperson informed Mr Hufton that available spots were running out and he should sign up today; 2. The salesperson did not inform Mr Hufton of any cooling off period; 3. The salesperson did not inform Mr Hufton of a cancellation fee; 4. The salesperson informed Mr Hufton that the value of the Platinum Service was $2000. 1. The Tribunal also found that Mr Hufton, who was eighty years old, had difficulty understanding all the information which was being provided to him and the salesperson was probably aware of this. 2. The Tribunal considered that the conduct of Solar Service Group constituted undue pressure and unfair tactics and that it took advantage of Mr Hufton's vulnerability and lack of understanding. It found that such conduct was unconscionable and in breach of s 21 of the Australian Consumer Law (which is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth) and which is applied as a law of New South Wales by s 28 of the Fair Trading Act). In reaching that conclusion, the Tribunal had regard to the relevant legal principles for determining what is "unconscionable conduct", as discussed in Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187. 3. The Tribunal was satisfied that Mr Hufton had suffered loss and damage as a result of the unconscionable conduct of Solar Service Group and that he entered into a contract for the premium service that he did not want. The Tribunal had regard to the factors specified in s 79U of the Fair Trading Act in determining was a fair and equitable order would be. 4. The Tribunal ordered Solar Service Group to pay Mr Hufton $2,000, being the value of the platinum service, pursuant to s 79N(a) of the Fair Trading Act. It also ordered that Solar Service Group was not required to provide the platinum service to Mr Hufton. Appeal Grounds 1. In its Notice of Appeal, Solar Service Group set out its reasons for the appeal as follows: "Decision of the Tribunal Member The tribunal member advised that the following was not completed by the sales agent. Cancellation fee was not advised – as per the Voice Verification sent to the Tribunal Member. This is mandatory to complete before taking the customers deposit. Marking [sic] letter – did not indicate that places in the program and was sold under pressure. Mr Hufton on the call was advised that there are limited spaces more than once. Mr Hufton was also advised that as per the letter we are looking for participants and his suburb was nearly full. Allocations to each suburb were set before the program started. Unfair tactic to an elderly Gentleman. Mr Hufton was taken through the full program and then was asked what he wanted to do with his position. Mr Hufton asked for a quote – due to the program being a SSG program and that the places are limited, he was advised that Leon was able to wait on the phone whilst he spoke with his wife. Mr Hufton the call [sic] was advised that the servicing was included in the package for free. The Tribunal member that [sic] it was unfair to expect an elderly person to properly understand the terms and conditions over the phone. At the end of the T&C's Mr Hufton had a choice to advise that he didnt understand the T&C's. Mr Hufton on the day of the hearing advised in his own words that he had agreed to the T&C's. The CC was taken before the T&C's but was not processed until the call was completed. In Point 11 e/ in the Decision – The Tribunal Member advises that the customer was not sent a hard copy of the T&C's, when the customer was advised on the call that the T&C's had been sent to him via email before he had hung up the call." 1. Mr Rogers, who appeared at the hearing for Solar Services Group, said that Solar Services Group was not arguing that the Tribunal had made an error of law. We agree with Mr Rogers that the grounds put forward by Solar Service Group do not raise a question of law. 2. Solar Services Group contended that the decision was not fair and equitable and that it was against the weight of evidence. 3. Solar Service Group also said the Appeal Panel should have regard to significant new evidence, being a transcript it had made of the recording of the telephone conversation between Mr Hufton and the salesperson from Solar Services Group. Leave to appeal 1. An appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 80(2)(b)). 2. In appeals from a decision of the Consumer and Commercial Division, an Appeal Panel may only grant leave to appeal on a ground which does not raise a question of law if the Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (NCAT Act, Sch 4, cl 12(1)). 1. The principles to be applied by an Appeal Panel in determining whether to grant leave to appeal are well settled. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant authorities at [65]-[79] and concluded at [84](2) 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. Even if an appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). Is there significant new evidence which was previously unavailable? 1. Mr Rogers acknowledged at the hearing that the transcript of the telephone call with Mr Hufton was "reasonably available" at the time of the Tribunal hearing. He said that Solar Service Group considered that it was not required as evidence because the written terms and conditions, which were sent to Mr Hufton and which were in evidence, clearly set out what was purchased. 2. Solar Service Group gave the following reasons to support its submission that the Appeal Panel should admit into evidence the transcript: "Mr Hufton did not bring into evidence the call recording other than he had asked for it and he [sic] had refused to provided it as it is a training document, until the day of the hearing mentioning that we as Solar Service Group have not provided the call as evidence because it would incriminate Solar Service Group. The call recording was demanded by Mr Hufton and in the hearing to have a direct attack against Solar Service Group and the reputation Solar Service Group have built, means that the call needs to be brought into evidence." 1. As Solar Service Group has acknowledged, the transcript of the telephone call is not "significant new evidence … being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with" within cl 12(1)(c) of Sch 4 to the NCAT Act. This is because Solar Service Group had the recording of the telephone call at all times and could have transcribed it before the Tribunal hearing. 2. For these reasons, cl 12(1)(c) of Sch 4 to the NCAT Act does not provide a basis upon which we may grant leave to appeal. Should the evidence of the transcript be admitted? 1. The circumstance that the recording of the telephone conversation was available at the time of the Tribunal hearing is not conclusive of the question of whether we should admit the recording or the transcript, although it is a matter which points strongly towards the conclusion that neither should be admitted. Whilst significant new evidence forms a basis on which the Appeal Panel may grant leave to appeal, it may also grant leave to appeal on either of the other bases set out in cl 12 of Sch 4 to the NCAT Act. In deciding whether to grant leave on one of these bases, the Appeal Panel has a discretion to admit new evidence. 2. We have decided not to exercise our discretion to admit the evidence of the recording or the transcript of the telephone call. As indicated above, Solar Service Group made a forensic decision not to provide the Tribunal or Mr Hufton with a copy of the recording of the telephone conversation or the transcript of that conversation at the hearing, despite having been asked by Mr Hufton for a copy. Whilst it claimed that the recording was only for training purposes, it also said that a contract had been formed over the telephone. It had the most reliable evidence of the content of that oral contract and chose not to provide it. 3. It would not be in the interests of justice to allow Solar Service Group to rely upon the transcript on the appeal. A decision to admit it now would not promote the public policy consideration of finality of litigation (see for example CSR Ltd v Bouwhuis [1991] NSWCA 295; Nominal Defendant v Manning (2000) 50 NSWLR 139 at [33] and [67]). There was nothing illegitimate or unfair about Mr Hufton giving oral evidence about the telephone call at the hearing, or in the Tribunal taking this evidence into account in making its findings and reaching its decision. Was the Tribunal's decision against the weight of evidence? 1. Solar Service Group said that the Tribunal's decision was against the weight of evidence and that the Tribunal should have given more weight to: 1. Mr Hufton's oral evidence that he agreed to the voice verification contract over the telephone; 2. the fact that he was aware of the servicing "and that it was notes on his original letter – in his own hand writing as a package"; and 3. the fact that he had had a second system installed after the battery was installed and had obviously been given advice that he does not need to have the service. 1. The Tribunal found that Mr Hufton agreed to the terms of the voice verification contract over the telephone. In determining that the conduct of Solar Service Group was unconscionable, it had regard to some of the matters set out in s 22 of the Australian Consumer Law including s 22(1)(d): "(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; …" 1. We consider that the Tribunal's decision that Solar Service Group's conduct was unconscionable was not against the weight of evidence, as it took into account the evidence that: 1. Solar Service Group's undated marketing letter invited the recipient to telephone and register his or her eligibility, but did not specify that when the recipient called there could be negotiations which could lead to a binding contract; 2. The salesperson suggested to Mr Hufton that he could miss out on an opportunity if he did not pay the deposit on the day and agree to the package in circumstances where the marketing letter did not indicate that places in the program were limited; 3. Solar Service Group expected an elderly person to understand the terms of what he was agreeing to over the telephone, when he had not been given any written documentation which would enable him to get advice or to inform himself that there was no cooling off period; 4. Solar Service Group did not inform Mr Hufton that there would be a cancellation fee of $450; and 5. Solar Service Group failed to send out a hard copy contract setting out precisely the terms which had been agreed, and the Terms and Conditions document sent on 17 January 2018 had almost no bearing to what was purchased by Mr Hufton. 1. This evidence to which the Tribunal referred supported the conclusion that the conduct of Solar Service Group was unconscionable. The circumstance that Mr Hufton agreed to the terms of the voice verification contract over the telephone does not make the Tribunal's decision against the weight of evidence. 2. Mr Rogers did not explain to us what was meant by Solar Service Group's contention that the Tribunal should have given more weight to Mr Hufton's awareness of the servicing "and that it was notes on his original letter – in his own hand writing as a package." Solar Service Group has not demonstrated that the Tribunal's decision was against the weight of evidence for this reason. 3. Solar Service Group's submission that Mr Hufton has "obviously been given advice" that he did not need the service, is speculation. Neither this, nor the circumstance that Mr Hufton had a second system installed, demonstrates that the Tribunal's decision was against the weight of evidence. 4. We are not persuaded that the Tribunal's decision was against the weight of evidence within cl 12(1)(b) of Sch 4 to the NCAT Act for the reasons given by Solar Service Group (or at all). Was the Tribunal's decision fair and equitable? 1. Solar Service Group claimed that it may have suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable. 2. The matters raised in Solar Service Group's notice of appeal (which are set out above) to support its contention that the Tribunal's decision was not fair and equitable are factual assertions (such as that it was mandatory for its staff members to advise the cancellation fee over the telephone). Most of these either depend upon the transcript of the telephone call, which we have not admitted, or are otherwise assertions not supported by evidence. 3. The argument relied upon by Solar Service Group to support its position that it did not place undue pressure on Mr Hufton is based on material which is not in evidence (the assertion that allocations to each suburb were set before the program started and that there were limited places available). Further, Solar Service Group has not explained why it needed to limit "allocations to each suburb." This self-imposed limitation of the provision of the service (without any persuasive reason proffered for doing so) supports the Tribunal's conclusion that Solar Service Group was placing undue pressure on Mr Hufton. 4. For these reasons, Solar Service Group has not persuaded us that the Tribunal's decision was not fair and equitable. Conclusion 1. We are not satisfied that Solar Service Group may have suffered a substantial miscarriage of justice on any of the bases set out in cl 12 of Sch 4 to the NCAT Act. That means it is not necessary to address the principles on which leave to appeal might be granted, as explained in Collins v Urban at [84]. 2. Accordingly, we have refused Solar Service Group leave to appeal, and the appeal must be dismissed. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 17 June 2019