1. Tribunal files C4018/2012 and C6616/2012 remain as separate proceedings but were heard and determined together.

1. The claim for payment for money by the Citisolar Pty Ltd in application C4018/2012 is satisfied in the amount of $51,340.00.

1. The claim for compensation of $275.00 by the Citisolar Pty Ltd in C4018/2012 is also satisfied.

1. The claim by Coliban Heights Pty Ltd for reduction of the account in application C6616/2012 is proved in the amount of $6,675.00. This amount shall be deducted from the amounts payable by the respondent to the applicant which total $51,615.00. The total payable by the respondent to the applicant is $44,465.00.

1. Coliban Heights Pty Ltd shall pay Citisolar Pty Ltd $44,465.00 payable no later than 15 February 2017.

1. Having regard to s115C of the VCAT Act 1998, including s115C(3), the Tribunal orders that no fees be reimbursed.

1. The respondent entered into an agreement for the provision and installation of four (4) solar energy systems by the applicant. The total contract price was $72,600 of which $7,260 was paid as a deposit.
2. The services were supplied in August 2011.
3. The intention of the respondent, which is acknowledged by the applicant, was to benefit from an energy scheme called the Premium Feed-in Tariff (the tariff).
4. The respondent was not successful in obtaining the benefit of the tariff for three of the four systems and sought a refund of all monies paid from the applicant.
5. The applicant applied to recover monies not paid under the contract.
6. Subsequent to the application for payment of the outstanding balance on the contract, the respondent obtained a report that the installation was defective and substandard.
7. Pursuant to an agreement reached between the parties the applicant agreed to and attended to rectify all issues raised in the report obtained by the applicant. The respondent paid the applicant a further $14,000 and the applicant attended to the rectification works as agreed.
8. The next step in the agreement required the respondent to obtain a report confirming that the works had been done. He did not do this and in doing so avoided a further payment towards the purchase price of the solar systems. A stalemate situation developed and both parties renewed the proceedings.
9. In further proceedings before the Tribunal the respondent was ordered to obtain a report on the status of the installation. He has now done so. It discloses that there are defects remaining and other issues that may be characterised as poor workmanship. Costs of rectification are estimated by the respondent to be in the vicinity of $22,000.
10. The respondent seeks by way of defence and counterclaim to be released from any obligation to pay for the goods and services provided and be refunded all monies paid to date. Legal costs and other costs in relation to his defence of the application and counterclaim are also claimed.
11. The applicant seeks orders for payment of the balance owing under the account being $51,340.00, less the cost to complete rectification work of $847.80 being a total of $50,492.20.
12. The respondent was at all material times represented by its Director David Koadlow.

1. The Tribunal has jurisdiction to hear and determine a consumer trader dispute pursuant to section 184 of the Australian Consumer Law and Fair Trading Act 2012 ("the ACL&FT Act"). A consumer under the ACL&FT Act is provided with legislative guarantees as a consequence of the adoption of The Australian Consumer Law ("the ACL"). The applicant relies on those guarantees in claim for the payment of money and the respondent for reduction in account and compensation.
2. The ACL applies where goods or services are sold in trade and commerce and bought by a customer (consumer). In this case the trader is Citisolar Pty Ltd and the consumer is Coliban Pty Ltd. The ACL is applicable.
3. None of the exceptions to the application of the ACL apply.
4. The guarantees applying to the provision of services are provided in sections 60-62 of the ACL&FTAct. No issue has been raised about the quality of the goods supplied.
5. A supplier is required to meet the consumer guarantees by providing services
   • with due skill and care
   • which are fit for any specified purpose
   • within a reasonable time.

This requires a provider to use an acceptable level of skill or technical knowledge when providing the services and take all necessary care to avoid loss when providing the services. There is an expectation that services and any resulting products will be of a standard expected to achieve the desired results that the consumer made known to the supplier.

1. If services do not meet a consumer guarantee the consumer has the right to a remedy. The remedy available depends on whether the failure is considered to be a 'major' fault. 'Major' has a particular meaning in this context.
2. A purchased service has a 'major' problem when it:
   • has a problem that would have stopped someone from purchasing the service if they had known about it
   • is substantially unfit for its common purpose, and can't easily be fixed within a reasonable time
   • does not meet the specific purpose the consumer asked for and can't easily be fixed within a reasonable time
   • creates an unsafe situation.

1. All services required by the contracts were provided in a timely fashion and to the best of their knowledge were compliant at the time (August 2011).
2. The work was inspected by an independent inspector between 20 August 2011 and 9 September 2011 and certified as compliant.
3. In order to make application on behalf of the respondent for the Premium Feed-in Tariff the applicant required details of an energy provider and completion of several forms and indemnities. These forms were provided to the respondent in early September 2011.The respondent refused to sign the documents or provide the information.
4. Notwithstanding the inability to obtain the information on the energy provider the applicant did everything within their power to secure the tariff for the respondent.
5. The tariff was not made available to the respondent for three of the four installations.
6. On discovering this the applicant refused to pay the balance of the account and requested that the systems be removed, the property made good, and the monies paid under the contract returned with interest.
7. In a further effort to avoid payment the respondent obtained a report on the quality of the installation.
8. The report exposed some defects and some departures from best practice.
9. In an effort to resolve the dispute the applicant agreed to rectify all of the defects and concerns raised by the applicant's report after payment of an initial $14,000.
10. Work was conducted in 2013 and it was believed that all matters had been rectified. The respondent was notified so that he could obtain a further report on the work to confirm compliance. Thereafter a further payment to the applicant of $23,500 was to be made.
11. The respondent deferred getting the report and complying with the terms of the agreement which resulted in the applicant being unable to obtain the balance of the agreed payment.
12. In an effort to obtain evidence of compliance and rectification, and a right to payment, the applicant sought access to have an inspection and report done. The respondent refused access to this inspector.
13. Orders of the Tribunal on 20 January 2016, 15 May 2016, 20 May 2016 and 27 June 2016 all directed the respondent to facilitate access for the applicant to inspect the installations with their own expert. The entry was delayed until November in 2016.
14. The applicant's expert report confirms that some issues have not been completed according to the agreement. Although some of those issues are not defects the applicant is willing to rectify them.
15. The applicant incurred a charge for the occasion when the expert attended but was refused entry. The charge for this was $275.00.
16. The report obtained by the applicant estimates the cost of the remaining rectification to be $847.90.

1. The respondent entered into the contract for the provision of the solar system on the basis of representations made by the applicant that:

1. the system and workmanship would be of the highest standard 2. paper work would be properly and accurately completed in a trouble free manner

1. the company would receive the Premium Feed-in Tariff

1. the cost would be higher after June 30.
2. All necessary information was provided for the applicant to proceed.
3. Mr Koadlow refused to sign paperwork provided to him in September 2011 because he believed that it confirmed the quality of the installation.
4. When Mr Koadlow became aware that he would not be able to receive the Premium Feed-in Tariff he was extremely disappointed and regretted having to purchase the systems. He sought to cancel the contract.
5. When the applicant pressed for payment the respondent obtained a report from IT Power (ITP) which disclosed defects that prevented the system being used for the purpose it was purchased for.
6. In an effort to resolve the issue the respondent agreed to make further payments provided that all of the issues and the defects raised in the ITP report were rectified.
7. Notwithstanding that the applicant attended and indicated that the works were complete, the respondent did not comply with the settlement agreement. Mr Koadlow believed that the works were not complete, and not to an appropriate standard, and refused to take any further action.
8. Mr Koadlow has since obtained the report required by the settlement agreement and another report. On the basis of those reports the respondent believes that the costs of pursuing this claim - being legal costs of $125,000.00, costs of reports totalling $16,500.00, and the proposed cost of rectification cost of $22,000.00 together should excuse him from paying any further amounts under the contract, and that he should be put in the position he was in before the contract was entered into - and be refunded the $21,260.00 he has paid.
9. Although not clearly put the respondent's position is that the goods and services provided were not provided with due care and skill and not fit for the purpose.

1. The following timeline has been assembled from the evidence of the parties and the Tribunal file.
   • 10 June 2011 - contract date.
   • 30 June 2011 - the rebate on installations ended.
   • 1 September 2011 - the closing date for approvals for the tariff was announced.
   • 30 September 2011 - installers were required to lodge Solar Connection forms, Electrical Work Requests and Certificates of Electrical Safety by 30 September 2011 to enable completion of the process by 30 November 2011.
   • 30 November 2011 - predicted last day of tariff approvals.
   • 13 June 2012 - the application to VCAT was made.
   • 16 November 2012 - ITP report on the installation was provided.
   • 19 December 2012 - Global Energy Solutions report.
   • 31 July 2012 - the matter was listed. There were numerous adjournments.
   • 17 October 2013 - hearing converted to Compulsory Conference.
   • 1 November 2013 - the respondent had paid the $14,000 under the agreement.
   • 16 December 2013 - works had been conducted and the respondent notified.
   • 16 December 2013 to 25 September 2015 - the applicant sought to encourage the respondent to obtain the report on the rectification work from ITP.
   • 25 December 2015 - parties' request for reinstatement was heard by Senior Member Vassie.
   • 18 January 2016 - Eversun provided a report to the respondent.
   • 9 March 2016 - second GSES Report provided to the respondent.
   • Subsequent to a further Compulsory Conference, directions orders were made in January 2016 to enable the applicant to enter the property and obtain its own expert report. In frustration, having been refused entry, the applicant was provided with further orders in relation to the conditions of entry throughout 2016.
   • 5 November 2016 - the applicant attended with Michael Muscat, Electrical Engineer for the purpose of obtaining a report on the rectification.
   • 23-24 January 2017 - hearing of the application.

Consideration of the evidence - the completion of the provision of the services

1. I am satisfied on the evidence of both parties that the contracts were entered into on 10 June 2011 after negotiations between Mr Koadlow and a representative of the applicant. I accept the evidence of Tynan Coles that it was not him.
2. On the basis of the Certificates presented by the applicant I am satisfied that the installations were certified as complete and compliant on 20 August 2011, 24 August 2011 and 9 September 2011 respectively.
3. I accept the evidence of both parties both orally and in their witness statements that the respondent was provided with the documents required for submission to attract the tariff on or about 6 September 2011.
4. The respondent's oral evidence that he refused to sign the documents because of his personal situation and belief that it was too late is also accepted.
5. I accept the evidence of Tynan Coles and Jacqui Hattrell (previously known as Jacqui Coleman) that they continued to attempt to lodge the respondent's applications throughout October and November to give Mr Koadlow every opportunity to secure the tariff.
6. Mr Koadlow's evidence is that he had told Mr Coles that there might be difficulties in making the application due to meter and property identification issues and that they had said they could and would sort it out for him. I accept Mr Koadlow's evidence to the extent that he may have told a representative of the applicant, but not Mr Coles, that he had had difficulties with energy providers and meter identification, and that the applicant should be forewarned.
7. I note from the witness statement of Jacqui Hatttrell that there was a cut-off date for a rebate on the cost of installations ordered before June 30, 2011. The cut-off time for approvals for the tariff of 30 November 2011 was not announced until 1 September 2011- with a suggested application time no later than 30 September 2011. At the time the respondent entered into the contract neither party was aware of the time constraints that became so critical in September.
8. Mr Koadlow's oral evidence to the tribunal was to the effect that he had told the applicant that it would be difficult to get consistent documentation on the meter numbers attached to the various addresses. When difficulties arose with the lodgement of the paperwork, he felt that it was not going to happen in the time available, that it was not his job or obligation to ascertain the details and the applicant should just give his money back. I consider Mr Koadlow's response to be indicative of a person who has decided that it is all too hard and who didn't want the product any more.
9. The respondent refused to allow the completion of the contract through his refusal to enable the applicant to make every effort to have the relevant documentation lodged in a timely fashion. At the time of the respondent's refusal there was still time for tariff applications to be considered and accepted.
10. The applicant was entitled, at the time the works were completed, to the balance of the contract price and at this point in time the respondent had no grounds to withhold the payment of the contract price.
11. Consequent to the above I find that the applicant was entitled to recover the full contract price at this time.

Consideration of the evidence - the defects in the services

1. Mr Koadlow acted on his concern about the quality of the installation provided by the applicant. He obtained a most extensive report from ITPower ('the ITP report') dated 16 November 2012. The report formed the basis of the respondent's original defence and counterclaim.
2. The ITP report is extremely detailed and includes items which are:
   • not in conformity with the Australian Standards at the time
   • not safe
   • not compliant with manufacturer's installation requirements
   • not best practice
3. Simon Troman was called as a witness to provide expert evidence as to the content of the report. Mr Troman's response to the question as to whether the installation was fit for the purpose, was that it was defective, of a low standard and not fit for the purpose - because the respondent did not accrue the benefits of the tariff.
4. I accept the evidence of the applicant that only some of the issues identified were "defects" and subject to the consumer guarantees.
5. I also note after reading the ITP report and hearing from the parties that there are some matters raised which have been identified as defects and voiding the purchaser's warranty and which have been disproved. The attachment of isolators on the frames of the panels is a particular example. I also note that one issue refers to the inaccessibility of a control panel due to the location of a table in front of it - and the later evidence of the respondent that this had been built after the installation. The applicant was not held accountable for that.
6. In response to the IT Power report the applicant obtained an expert assessment on the issues raised from Global Sustainable Energy Solutions (GSES). This report is relied upon by both parties. It confirms to a large extent the issues raised in the ITP report and formed the basis of an agreement between the parties as to the nature and extent of rectification that would be undertaken by the applicant.
7. The applicant agreed to rectify all issues identified in the GSES report after payment of $14,000. There is no dispute that this occurred.
8. Both parties also agreed that the respondent would obtain a report from ITP to confirm that rectification had occurred. He did not do this. The reason given was that he believed that the works had not been done satisfactorily or completed.
9. Unfortunately the respondent appears to have taken the position that he should not have to comply with the agreement or later orders of the Tribunal. He delayed in obtaining a report on the rectification work and would not allow the applicant to do the same. He refused access to the applicant's inspector. Mr Koadlow confirmed this view in his evidence to the Tribunal and it is supported by the email correspondence between the parties.
10. When pressed, the respondent's solution was to offer to obtain a report from the company that had done the original assessment of the ITP report, GSES. Mr Koadlow eventually obtained two reports: one from EnergySpec Electrical Pty Ltd, represented at the hearing by Adrian Riddiford; and one from GSES represented at the hearing by Daniel Atkins. Both disclose issues which remain unresolved.
11. Four of the unresolved issues raised in the GSES report are items which do not require rectification (attachment to frames). The applicant acknowledges that the balance of the issues noted have not been completed and that they were required to be completed under the agreement. It does not acknowledge all of them as defects but remains willing to pay the reasonable costs of rectification for all items.
12. A report by Mr Muscat was tendered as evidence of work required and estimated cost. Mr Muscat attended the installations on 5 November 2016 at the request of the applicant and pursuant to orders of the Tribunal. The orders required the respondent to provide access to the representative of the applicant, Mr Coles and his expert. Mr Koadlow was not present but his wife, a photographer and representative of EnergySpec observed the inspection.
13. Mr Muscat's report also confirms that there are issued remaining which require rectification because they are defects and others which form part of the GSES report which are incomplete. He has provided an estimate of the work required to bring the work to the Australian Standard which applied when the defects were detected in 2013. His estimate is $849.00.
14. The report from EnergySpec obtained by the applicant differs from Mr Muscat's report. It highlights the inadequacies of the installation now - and describes what would be required to bring it to an operational standard. In his summary and evidence Mr Riddiford (the author of the report) was very clear in his condemnation of the standard of the current installations and insistent that any rectification should be to current Australian Standards. He has estimated that it may cost up to $22,000 to bring the installations to acceptable operational level.
15. On questioning Mr Koadlow about the current status of the systems he was able to confirm that one system is operational and connected to the electricity grid and generating some benefits. Another system is working but Mr Koadlow is not sure what is occurring with the power generated. The other two systems were decommissioned by an inspector when dangerous faults were detected. Mr Koadlow has not engaged or instructed anyone to fix these problems and have the systems made operational in the three years since they were detected.
16. The dangerous faults which render the installation unsafe are 'major' faults. They are

1. undersized DC isolators 2. cables not secure or protected from damage

All of the faults and defects were capable of rectification. Many have been rectified.

1. Given that there are 'major' defects it is open to the respondent to seek both rectification and compensation.

1. It is the duty of all parties to minimise their loss in any commercial situation. This is a factor to be taken into consideration when assessing the entitlement of a party to compensation.
2. The applicant has an outstanding debt of $51,340.00 for services provided. The original cost was $72,600.00.
3. The respondent has the value of at least one installation. The value of that system under the contract is $18,150.00. The respondent has effectively paid for this installation having paid $21,260.00 to the applicant to date.
4. The respondent has the option of having the benefit of the second system - if he makes arrangements with the energy provider.
5. If the rectification work is done the respondent can obtain the use and benefit of the other two systems.

What standard should be applied to the rectification?

1. The applicant argues that they should only be held to account to the level of compliance that would have existed at the time of installation and approval.
2. If the rectification work had been conducted within a reasonable time, to an acceptable standard the certification requirements were likely to be little different than at the time of installation.
3. Due to the passage of time, current standards are different. The applicant should bring all defects up to current certifiable standards.
4. Many of the delays in resolving this matter have been due to the actions of the respondent. It is not appropriate to place a burden on the applicant for the respondent's failure to minimise his loss. Any work required to bring the installations to current operational standards which is not related to the defects should fall on the respondent.
5. There is a huge discrepancy between the estimates of required works - from $847.80 to $22,000. The lower estimate refers particularly to work required to rectify defects. It does not allow for the cost of obtaining certification of compliance or safety, and is considered to be conservative. In consideration of that I assess the cost of the rectification work to be $2,200.00.

1. Given the level of disaffection between the parties and the applicant's offer to pay for the reasonable costs of rectification of the installations, I find that the applicant's account should be reduced by the cost of rectification - being $2,200.00
2. As to compensation for the standard of workmanship - I am satisfied on the evidence of all of the experts that the installations provided to the respondent were of a low standard and being so were potentially unsafe and susceptible to damage or causing damage.
3. The certification by the independent inspector should have been able to be relied upon by both parties. Had the dispute about the payment not arisen, and the respondent not obtained a quality report, the defects may not have been detected until a fault occurred.
4. This has clearly been a grave concern for the respondent who referred frequently to the risks the installation posed in its original state.
5. The respondent knew or had reason to know that the installation was faulty and substandard when the ITP report was provided to him. There were major defects. At that point in time I believe the duty to rectify arose. Until that time the applicant should have been able to rely on the certification of the independent inspector in August.
6. The applicant did not attend to rectify the installations until after the agreement was made. There was a delay from November 2012 when the report was provided to the applicant until October 2013.
7. The respondent's options with respect to the use of the installations was limited from the time the report was provided to the applicant until the rectification was complete, and from the date that he obtained a report that the rectification was incomplete until the present time.
8. The respondent is not entitled to benefit from compensation for any period that he delayed or was in breach of the Tribunal orders.
9. In addition to the amount allowed for rectification, I find that the respondent is entitled to $2,000 compensation for the poor quality installation of the four systems and failure to rectify within a reasonable time.

1. I have already indicated to the parties that even in such a protracted matter as this where the parties have accumulated legal costs of over $200,000.00 those costs will not be allowed.
2. There are however some costs which I believe should be allowed.
3. Firstly - the cost to the applicant for his inspector to attend in compliance with the Tribunal order, who was refused access by the respondent. I allow the applicant the sum of $275.00.
4. Secondly, the report by ICT was obtained by the respondent and relied upon by both parties. Had both parties acted upon that report, it may not have been necessary for any further reports or costs to have been incurred. The cost to the applicant of that report was $4,950.00. The cost of that report will be apportioned in equal amounts to both parties and the amount payable by the respondent to the applicant under the contract reduced by $2,475.00.
5. Combining the amounts allowed in paragraphs 83, 92 and 96 the total amount allowed to the respondent in reduction of the payment to the applicant is $6,675.00.
6. The account remaining to be paid by the respondent to the applicant is $51,340.00. In addition the applicant is entitled to recover $275.00 as compensation for his losses incurred under paragraph 96 - a total of $51,615. This is then reduced by the amounts allowed to the respondent- leaving a total payable by the respondent to the applicant of $44,465.00.