Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phillip v Bell Solar Pty Ltd [2019] NSWCATAP 162 Hearing dates: 29 April 2019 Date of orders: 03 July 2019 Decision date: 03 July 2019 Jurisdiction: Appeal Panel Before: T Simon, Senior Member AR Boxall, Senior Member Decision: (1) The appeal is dismissed (2) Leave to appeal is denied Catchwords: CONSUMER CLAIM – error of law – s 48MA – fair and equitable Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Elena Phillip (Applicant) Bell Solar Pty Limited (Respondent) Representation: E Phillip (Applicant in person by telephone) Mr Y Seomangal (Respondent) File Number(s): AP 19/02494 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 January 2019 Before: S Smith File Number(s): HB 18/51069 REASONS FOR DECISION Introduction 1. This is an appeal from a decision made on 15 January 2019 in the Tribunal's Consumer and Commercial Division. The Notice of Appeal was filed with the Tribunal on 16 January 2019, the day after the decision was made. 2. The decision concerned work performed by the Respondent at the Applicant's home in connection with the supply and installation of a solar electrical system, comprising solar panels and an inverter, for a total price of $7099: 1. The Applicant originally applied to the Tribunal on 30 November 2018 for compensation of $8000 for an alleged breach of statutory warranty by the Respondent in connection with that supply and installation. 2. In her application, the Applicant referred to four issues: 1. The system contracted for was a 6.60 kw system, whereas that supplied was a 5-kw system; 2. In the course of the installation, the Respondent cracked one or more roof tiles, which were inadequately repaired using silicon; 3. The wooden backing behind the inverter was not made with timber suitable for long-term use; and 4. The cable ties used in the course of the installation were unsuitable, being black plastic only whereas stainless steel cable ties (or a combination of stainless steel and plastic ties) should have been used. 1. In the course of the hearing on 15 January 2019: 1. The Applicant pressed only the last three of those issues; 2. The Respondent accepted that it was liable in respect of the defects so identified in those three issues; 3. The Tribunal found in the Applicant's favour in relation to the three issues which she pressed; and 4. The Tribunal made a work order requiring the Respondent to remedy those defects by 15 February 2019. 1. The Applicant objects to the making of a work order and appeals against it. She asks that the work order be replaced with an award of compensation in an amount sufficient to allow her to engage: 1. another contractor to remedy the defects, and 2. an inspector to assess the remedial work performed. Right to appeal 1. Parties have a right of appeal on a question of law, otherwise leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Part of the Appellants claim alleges an error of law. 2. The grounds raised by the appellants in this appeal require leave to appeal. In appeals from a decision of the Consumer and Commercial Division, an Appeal Panel may grant leave only if the Appeal 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) ( see NCAT Act, Sch 4, cl 12(1)). 1. The appellants allege that the decision was not fair and equitable. Error of Law 1. The relevant legislation is the Home Building Act 1989 (the HBA), which makes elaborate provision concerning home building work. 2. In this matter: 1. There was no dispute that: 1. the Respondent's activities in supplying and installing the solar electrical system were of a kind which amounted to residential building work within the meaning of the HBA [1] , 2. the reasonable market value of the relevant labour and materials exceeded the minimum amount of $5000 [2] , below which they would not qualify as residential building work [3] , or 3. since the Applicant's claim concerned residential building work, it was a building claim in respect of which the Tribunal had jurisdiction under the HBA . 1. Nor was there any dispute that: 1. The Applicant had succeeded in her building claim, or 2. In consequence, the Tribunal should in the circumstances make an order under section 48O of the HBA Act, being an order: 1. Under section 48O(1)(a), that the Respondent make a compensatory payment to the Applicant; 2. Under section 48O(1)(b), that the Applicant be relieved from making a specified payment to the Respondent; or 3. Under section 48O(1)(c), that the Respondent perform certain specified work. 1. Rather, the sole dispute concerns the Tribunal's decision to make an order under section 48O(1)(c) of the HBA, that the Respondent remedy the relevant defects, rather than one under section 48O(1)(a), requiring the Respondent to make a compensatory payment to the Applicant, which was her preference. 2. On this issue the legislative position is quite clear: 1. Section 48O(2) of the HBA provides that: The Tribunal can make an order even if it is not the order that the applicant asked for; while 1. Section 48M of the HBA provides as follows: A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. 1. The consequence is that the Tribunal, in determining the dispute between the Applicant and Respondent, not only was authorised to make an order under section 48O(1)(c), that the Respondent remedy the defect, but moreover: 1. It was authorised under section 48O(2) to do so even though that was not Applicant's preferred remedy; and 2. It was positively directed under section 48M to have regard to the principle that a remedial order was the preferred outcome. 1. It follows from this that there was no error of law by the Tribunal in making the work order against which the Applicant appeals. Leave to appeal 1. In her Notice of Appeal the Applicant seeks leave to appeal on the basis that: 1. The decision was not fair and equitable, since: 1. The Respondent cannot be relied upon to perform the necessary remedial work; and 2. The Tribunal member who made the orders under review: 1. Was "…rude, stereotypical and racist"; 2. Did not allow the Applicant to explain why she objected to the Respondent performing the remedial work; and 3. Humiliated her by laughing when she spoke. 1. The decision of the Tribunal was against the weight of the evidence, since the Tribunal did not take sufficient account of the photographic evidence she provided concerning the defects. 2. The Orders were made without explanations. 1. Dealing with these arguments in order, using the same numbering: 1. As to: 1. There was no evidence that the Respondent could not be relied on to remedy them. The only circumstance that the Applicant referred to in order to support her position was the existence of the defects themselves. This can provide no support for the Applicant, since the statutory direction in section 48M necessarily predicates the existence of defective work on the part of the builder against whom orders are sought. 2. Nothing in the sound recording of the hearing or in the transcript filed by the Respondent with its submissions supports the Applicant's claim as to the conduct of the presiding Member: 1. At no stage are there any remarks of a racist nature by the Member, nor is there any rudeness. 2. The Member attempted to correct the Applicant's vehement misunderstanding that her consent was required to his making a work order, to which her response appears to have been peremptorily to leave the hearing. The Member allowed the Applicant the opportunity both to present her evidence as to the defects, in the form of an expert's report, and to articulate her concerns as to the Respondent's performance of the work. 3. Any laughter on the part of the Member appears to have been self-deprecating in nature and was not directed at the Applicant. 1. The Tribunal found in favour of the Applicant, and in doing so accepted her evidence as to the existence and nature of the defects. This is apparent from the congruence of the Tribunal's work orders with the report issued on 21 November 2018 by the Applicant's expert, Mr Philip Leslie, and it is difficult to see, given that outcome, how the Tribunal could be thought not to have taken account of the Applicant's evidence as to the existence, nature or seriousness of the defects. 2. The presiding Member was at some pains to explain to the Applicant the basis on which the orders were made, and in particular both the statutory direction contained in section 48MA and the limited circumstances in which a departure from it is justifiable. It was open to the Applicant to seek written reasons, but she appears not to have done so, despite the direction to that effect made by the Tribunal at a directions hearing on 5 February 2019. 1. The Tribunal does not consider that the Applicant has demonstrated any grounds to support her application for leave to appeal. Orders 1. Accordingly, the Tribunal: 1. Dismisses the Applicant's appeal, to the extent it is based on the proposition that the Tribunal erred in law in making the work orders on 15 January 2019; and 2. Dismisses the Applicant's application for leave to appeal. ********** 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 Endnotes 1. HBA Schedule 1, clause 2 2. Home Building Regulation 2014, clause 12 3. HBA Schedule 1, clause 2(3)(a) 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: 03 July 2019