Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Natural Solar Pty Ltd v Lowe [2019] NSWCATAP 252 Hearing dates: 6 August 2019 Date of orders: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Appeal Panel Before: P Durack, SC – Senior Member G Sarginson – Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The stay of the orders made on 27 May 2019 is lifted. Catchwords: CONSUMER LAW – whether decision fair and equitable or against the weight of the evidence – new evidence reasonably available at time of hearing – no appellable error shown. Legislation Cited: None cited Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Natural Solar Pty Ltd (Appellant) Kelly Lowe (Respondent) Representation: Solcitiors: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 19/26410 Publication restriction: None Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 27 May 2019 Before: M Eftimiou – General Member File Number(s): GEN 19/10634 REASONS FOR DECISION Overview 1. This is an appeal from an order of the Tribunal in the Consumer and Commercial Division requiring the appellant to refund the purchase price of a solar system that it supplied to the respondent and which it installed on the roof of the respondent's home in Sydney. The appellant also appeals from an order requiring that it remove the system from the roof. 2. The appellant does not raise any error of law and, accordingly, needs leave to appeal. As to this, the appellant contends that the decision was not fair and equitable for a variety of reasons, including that it was apparent that the system was, in fact, working satisfactorily and that the respondent had benefited from the system over a number of years. 3. In support of these contentions the appellant sought to rely on evidence that existed at the time of the hearing in the Tribunal at first instance which was not presented to the Tribunal. 4. For the reasons set out below, we have decided to refuse leave to appeal and, as a consequence, to dismiss the appeal and order that a stay of the orders be lifted. Grounds of appeal 1. The appellant's Notice of Appeal raised three grounds of appeal. First, that the decision was not fair and equitable. Second, that the decision was against the weight of the evidence. Third, that significant new evidence had arisen that was not reasonably available at the hearing. 2. As to the first ground of appeal, it was said that: 1/ The Member unfairly based the Determination on the issue of a short period of non-registration of Solar Feed-in Tariffs via the Solar Smart Meter owned by Mrs Lowe's electricity provider 2/ The Member unfairly did not recognise the Solar System originally installed by Natural Solar did not, and could not, include a Solar Smart Meter is owned by and provided by another party…namely Mrs Lowe's electricity provider. 2/ (sic) The Member unfairly based the Determination upon the failure of solar system. In evidence the solar system was proven to be functioning in the normal way. 3/ The Member unfairly did not take into account the solar power electricity production and substantial monetary benefits enjoyed by Mrs Lowe' s household over 4.5 years since the original installation of the solar system. 1. As to the second ground of appeal, the Notice of Appeal referred to a "report" from ABB dated 23 May 2019 "showing readout demonstrating the inverter was functioning in the normal way". It also said that more weight should have been given to the substantial electricity benefits and savings to the household produced over 4.5 years. 2. As to the third ground of appeal, the new evidence was identified as an email from the Technical Support Team of ABB sent to Mr Mody of the appellant on the Friday before the hearing (24 May 2019) at 2:31pm which stated: As per our discussion, both the inverter strings were working and was showing proper voltages and current. The readings were provided from the inverter display by the customer over the phone, and based on the voltage and current reading the inverter was operational and was producing approximately 2000w. 1. The Notice said that the above email had been forwarded to Alan Williams by a staff member of the appellant on the day of the hearing after he had left home for the hearing. Mr Williams appeared at the hearing at first instance for the appellant and at the hearing of the appeal. 2. Attached to the Notice of Appeal were 21 pages of "Appeal Points" addressing the Tribunal's determination. Most of these commenced with the words "Factually incorrect" against specific paragraphs of the reasons for decision. As will be seen below, these points were superseded by the appellant's subsequent submissions on appeal supplied on 16 July and 5 August 2019. A limited right of appeal 1. As the appellant raised no error of law, leave to appeal was required as prescribed by cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). That clause provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (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. With regard to the discretion to grant leave under this provision on the basis that there may have been a substantial miscarriage of justice, the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 stated (at [84]): The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. 1. As expanded upon below, in our opinion, the appellant has not established that the decision was affected by any error of fact or was against the weight of the evidence, let alone that any of the circumstances we have just referred to exist for the exercise in its favour of the discretion to grant leave to appeal. 2. Furthermore, the new evidence the appellant relied upon, even if significant, was reasonably available at the time of the hearing at first instance. Factual background 1. The following facts are uncontroversial: 1. On 11 November 2014, the respondent signed a contract with the appellant for the supply of a roof solar system, including panels and an inverter manufactured by ABB, for the sum of $6,400.00. Installation by the appellant occurred on 8 April 2015. 2. Following warranty claims by the appellant on ABB in each instance, as a result of complaints to the appellant by the respondent, the inverter was replaced three times on 5 May 2015, 19 January 2017 and 29 January 2019. On the first two occasions there was a problem with water ingress. On the second occasion, there was also a noise problem. The issue that prompted the third replacement was the respondent's discovery that there had been no solar energy feed from their system into the grid since July 2018. 3. There were significant periods that elapsed between the time when the respondent raised a problem with the inverter with the appellant before the first and second replacements and the time when those replacements occurred. 4. After the second replacement, Mr King of the appellant asserted, in an email sent to the respondent on 27 January 2017, that their technician on site had been asked to record the Etotal from the "damaged" inverter, being the total output form the inverter since day 1. Some figures were then given, including an average daily kwh amount, which it was asserted exceeded that set out in the Australian solar guidelines. 5. This email was in response to a request for compensation from the respondent made in an email sent on 20 January 2017. In this email, reference was made to a statement from the installer of the replacement inverter that he thought he had fixed the water ingress problem and that whoever had installed "it" had not done a very good job. 6. The respondent's quarterly bill from Origin issued on 17 October 2018 showed that the credit for solar feed into the grid was only 58 cents. 7. The next quarterly bill from Origin issued on 15 January 2019 showed no solar feed into the grid. The bill from Origin for the corresponding period in the previous year showed a credit for solar feed in to the grid of $129.95. 8. After raising the lack of solar feed into the grid with the appellant on 16 January 2019, the inverter was again replaced on 29 January 2019 (the fourth inverter in under four years). In an email from the respondent to Mr Mody of the appellant after the installation that day it was said that "the installer agrees that the reason my inverters stop working would most likely have something to do with the installation". 9. The quarterly bill from Origin issued on 11 April 2019 also showed no solar feed into the grid. The proceedings at first instance 1. After the respondent commenced these proceedings in the Tribunal on 2 March 2019, no-one from the appellant, or anyone on instructions from the appellant, inspected the system for the purpose of assessing how it was functioning after the third inverter replacement referred to above. 2. In an email from the respondent sent on 12 April 2019, the appellant was invited to contact the respondent to come and look at the system because it was said the solar system was still not working. No-one from the appellant came to look at the system. 3. At the hearing before the Tribunal at first instance on 27 May 2019, the respondent tendered two bundles of documents and gave sworn evidence. Mr Williams for the appellant also gave sworn evidence. 4. Included in the material presented by the respondent were communications with, and a report from, another solar system supplier, Solar AG. They had been informed that the respondent's system had produced no solar feed into the grid since July 2018. The report from Solar AG set out figures, including a dollar figure for the expected electricity savings to be produced, which took account of credits for solar feed into the grid. The covering email to the respondent for the report sent on 16 April 2019 stated that: …Your system clearly isn't producing the figures it should be. 1. The respondent also presented at the hearing an email from Mr Elhaj from Origin sent on 24 April 2019 stating that: …By the meter data on out (sic) system, it looks like there has been no solar feed in coming into the grid. Some days showed a very slight generation eg….next to nothing… 1. The only evidence presented by the appellant was an email from ABB to the appellant sent on 23 May 2019 at 3:27pm. This contained some readings from the inverter the respondent had given to ABB over the telephone that day. The email did not contain any interpretation of these readings. 2. Despite the opportunity to do so, at the hearing, the appellant presented no expert or documentary evidence as proof of the satisfactory operation of the system. Email correspondence in the material presented by the respondent contained assertions on behalf of the appellant that the downtime lost energy production from the system was small, but there was no proof from the appellant to substantiate these assertions. The Tribunal's decision 1. The reasons for decision of the Tribunal at first instance, relevantly, included: 1. Mr Williams did not dispute that the system was not working. In this regard, he gave evidence that he would expect to see a solar credit of an average of $50 each quarter if the system was working correctly. The respondent gave evidence, which the Tribunal accepted, that she had received a solar credit of between $70 to $130 per quarter since installation and before July 2018. 2. Mr Williams believed the cause of the system failure was not the appellant's responsibility. He believed that any fault in the system was a fault in the Origin Smart Meter, but he was not able to provide any probative evidence that this was the cause of the problem. Mr Williams thought other possible causes of a lack of solar feed in to the grid were that the respondent was using too much electricity or there was a lack of sunshine days but, again, he was unable to provide any probative evidence as to these possible causes. 3. The Tribunal accepted evidence sourced from Origin, following an inspection by it in April 2019, that there was no issue with the Origin Smart Meter. 4. The respondent gave evidence that she was not using more electricity because she was, currently, at University and was not home most days. 5. It was common knowledge that NSW is suffering from a drought and has experienced more sunny than rainy days this year. 6. The respondent is not receiving the solar credit on her quarterly accounts that she received when the system was first installed and her electricity accounts are significantly higher. 7. The system was not durable because in four years the inverter had been changed three times. 8. Given these matters, the Tribunal was satisfied that the system was not of acceptable quality and not fit for the purpose for which it was intended (paragraph 37). 1. The Tribunal ordered that the appellant pay the respondent the sum of $6,400.00 on or before 19 June 2019 and cause the removal of the solar panels and associated equipment from the roof and make good any damage to the roof on or before 19 June 2019. By consent, a stay of these orders until further order was ordered on 18 June 2019. The appellant's submissions and consideration 1. No complaint was made by the appellant about the fairness of the process followed by the Tribunal in respect of its decision. 2. The main point that Mr Williams, for the appellant, emphasised at the hearing of the appeal was that, according to him, the solar system was working well. 3. However, the problem for the appellant with this submission, and the supporting written material provided on the appeal in respect of it, was that they did not address the weight of the material in favour of the contrary conclusion reached by the Tribunal when measured against the absence of material placed before the Tribunal at first instance supporting the appellant's contention. 4. Connected to this main point, Mr Williams relied upon a document lodged with the Tribunal shortly before the hearing of the appeal, dated 31 July 2019, which we understood to set out the appellant's primary contentions. In the document nine points were made, which we summarise as follows: 1. The determination was unfair. The following eight points appear to be provided as the support for this contention. 2. The Tribunal's conclusion that the system when first installed provided the respondent with a reduction in electricity bills and a solar credit of on average $70 to $130 a quarter (paragraph 35) was contrary to the conclusions that it was not of acceptable quality or fit for purpose. 3. The solar panels, which are the greatest cost component of the system, are of high quality and have been functioning normally for the full period since installation. 4. Under warranty, the inverter has been replaced as required – on two occasions they were faulty and on one occasion even though it was not faulty. 5. The current inverter read out report of May 2019 shows the inverter is functioning in the normal way and the appellant will extend the inverter warranty by a further 5 years commencing from the recent January 2019 installation. 6. The Tribunal concentrated heavily on the solar feed in tariff of which the dollar value is nominal compared to the solar panel power production for home consumption. 7. This point explained what the feed in tariff is, namely excess electricity if and when the system produces more than what is needed for home consumption. 8. The Smart meter is not owned or installed by the appellant – it is in the care of the respondent's electricity provider, Origin. 9. There have been substantial saving benefits derived from the system by way of reduced electricity accounts and the Tribunal did not fairly take these into account. 1. None of these contentions establish: 1. Any factual error by the Tribunal, let alone such an error that was unreasonably arrived at or was clearly mistaken 2. Any fact - finding process by the Tribunal that was unorthodox or likely to produce an unfair result. 1. As to this, and to the extent that these contentions by the appellant went further than unproven assertions, we respond as follows: 1. We do not agree that the conclusion in paragraph 35 of the reasons (to the effect that, initially, the system worked as it should) undermined the core findings as to quality and fitness for purpose. The Tribunal's point was that this did not continue. 2. The document described as a report of May 2019 must be a reference to the email sent by ABB on 23 May 2019 to which we have referred above. This contains no interpretation to the readings and does not say that the inverter is functioning in the normal way. 3. The fact that the warranty regarding the inverter was effective is not to the point. The extent to which it needed to be replaced provided some support for the Tribunal's conclusions. 4. There is no suggestion that the offer to extend the warranty was something put to the Tribunal and should have been taken into account. In any event, it does not rebut the conclusions reached by the Tribunal about quality. 5. It was reasonably open to the Tribunal to take account of the lack of solar feed into the grid given the amounts that had been achieved at one point which was not insignificant. It does not appear to us that the Tribunal misunderstood what the feed in tariff was. 6. It does not appear to us that the Tribunal misunderstood that the Smart meter was the responsibility of the appellant. On the contrary, the Tribunal appeared to understand that if it was the Smart meter that was at fault the respondent's claim would not succeed. Accordingly, the Tribunal concluded that Mr Williams had not provided any probative evidence that the Origin Smart Meter was the cause of the problem (paragraph 24). 7. The Tribunal did recognise that for a while the system provided the benefit of reduced bills and a solar credit (paragraph 35). The Tribunal also recognised that there was no evidence that a measure of expected savings did not continue to be enjoyed by the respondent (paragraphs 31 and 39). What the Tribunal found to be important was the lack of a solar feed in credit (paragraph 32). 1. Prior to lodging the document dated 31 July 2019, on 16 July 2019 the appellant provided a bundle of material for the appeal, including four pages of "Appeal Points" and two pages purporting to summarise parts of the transcript of the hearing at first instance. The latter was the appellant's version of what had been said rather than a verbatim account of what had transpired. This deficiency was not significant because the appellant came to place no reliance on the document. 2. With this material, the appellant put forward eight matters and another three additional points for "consideration". Given that we have already dealt with the appellant's primary submissions, we deal with these matters, briefly, as follows: 1. Point 1 advances points that the inverters were, in fact, working correctly. But this is at odds with the appellant's primary submissions which accept the inverters replaced on the first two occasions were faulty. In any event, the points are unsubstantiated by reference to evidence given before the Tribunal at first instance. Reference is also made with this point to the email of 24 May 2019 which is the new evidence sought to be relied upon. We deal with the new evidence point, separately, below. 2. Point 2 makes an unsubstantiated assertion about Origin confirming the inverter appeared to be working without reference to any evidence before the Tribunal at first instance. 3. Point 3 is that the Tribunal chose to consider only two electricity accounts instead of all 22 quarterly accounts that had been issued since installation. In fact, the Tribunal considered five such accounts (paragraphs 9, 10, 11, and 33) and accepted evidence from the respondent about her electricity bills. There was nothing unfair about this approach. It was open to the appellant to challenge that material, including by requiring the documents from the appellant or from Origin. 4. Point 4 asserts confusion by the Tribunal, without substantiation, about the functions and control of the Smart meter and inverter. 5. Point 5 says that the Tribunal raised an issue of the claim being out of time but does not put forward any contention of error in this regard. 6. Point 6 refers to three matters – the first asserts, without substantiation, that the respondent gave evidence at the hearing that the inverters had not failed. The second and third matters raise the possibility that the lack of solar credits was due to registration failures, as to which there was no evidence adduced at the hearing. 7. Point 7 asserts, without reference to evidence presented to the Tribunal at first instance, that the system has produced more than what was set out in a particular report. Reference is made here to what is said to be contained in an installers' work journal but there is no suggestion that this was in evidence before the Tribunal. We also note that such a journal entry has not been identified or explained. 8. Point 8 repeats the same point as in paragraph 28 (9) above. 1. As to the three additional matters for consideration, the first two do not raise any appeal contention (they invite the respondent to arrange a diagnosis on site of the absence of a feed in credit because the appellant is unable to engage directly with Origin). The third matter makes an assertion about the amount of solar power the respondent has received from the system without reference to any proof concerning this presented to the Tribunal at first instance. 2. Finally, we deal with the new evidence point raised in the Notice of Appeal (the email sent on 24 May 2019 set out in paragraph 8 above). 3. As we have already mentioned, the email was sent to the appellant, to Mr Mody, at 2:31 pm on the Friday before the hearing on Monday, 27 May 2019. It stated that its subject was "Case – Kelly & Michael Lowe". There is no suggestion that it was not available to be seen by Mr Mody and by Mr Williams at that time. It refers to a discussion, which the email is confirming. We infer that prior to the email there had been contact between Mr Mody and the author about obtaining material relevant to the forthcoming case. The appellant was, clearly, in a position to ensure that it had this email available for tender at the hearing. The explanation from Mr Williams that it was not forwarded to him until after he left for the hearing, which we accept, does not make the document reasonably unavailable at the time of the hearing. 4. Indeed, there is no explanation as to why the material in the email, or material to the same or similar effect, was not obtained well before 24 May 2019, bearing in mind that there had been directions made for the exchange of documents well in advance of the hearing and the late emergence of this information may have led to unfairness to the respondent and the possible need for an adjournment. 5. In these circumstances, in our opinion, the requirement for new evidence to be reasonably unavailable at the time of the hearing has not been established. Conclusion 1. For the above reasons, we refuse leave to appeal and, as a consequence, dismiss the appeal and order that the stay of the orders made on 27 May 2019 be lifted. Orders 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The stay of the orders made on 27 May 2019 is lifted. ********** 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: 10 October 2019