1. The parties to two Tribunal proceedings entered into Terms of Settlement dated 18 October 2013. On the previous day, 17 October 2013, there had been a compulsory conference in both proceedings together. Evidently the settlement was reached on that day; the presiding Member made an order in each proceeding that it was struck out with a right to apply for reinstatement, and that there was no order as to costs.
2. In July 2015 each party made an application for reinstatement of the proceeding in which it had been the applicant. I heard the applications for reinstatement on 25 September 2015. I reserved my decision on each.
3. In proceeding C4018/2012 Citisolar Vic Pty Ltd ('Citisolar') had claimed $65,340.00 as the balance owing under four contracts for the supply and installation of photovoltaic systems at four different properties. Coliban Heights Pty Ltd ('Coliban') was the purchaser under each contract, dated 10 June 2011. The systems to be supplied included solar panels and inverters.
4. In proceeding C6616/2012 Coliban counterclaimed against Citisolar for damages for breach of contract. The alleged breaches were a failure to provide to the relevant authorities by a deadline of 30 September 2011 the paperwork which would have allowed Coliban to qualify for a premium feed-in tariff, and the installation of systems which were incomplete or defective. The counterclaim was for $68,500.00.
5. Tynan Coles, Citisolar's manager, and David Koadlow, Coliban's director, signed the Terms of Settlement.
6. Paragraphs 1 and 2 of the Terms of Settlement provided:
   1. Coliban agrees to pay Citisolar the sum of $37,500.00 inclusive of interest and GST ("the settlement sum"), such payment to be made to Citisolar's solicitors, Clamenz Evans Ellis Lawyers, Level 2, 455 Bourke Street, Melbourne, 3000.
   2. The settlement sum shall be paid:
      • (a) as to $14,000.00 on or before 4.00 pm on 1 November 2013;
      • (b) as to $23,500.00 by 4.00 pm, 7 days after the confirmation as referred to in paragraph 9(c) hereof has been received by Coliban.
7. Coliban paid $14,000.00 in accordance with paragraph 2(a). It has not paid the remaining $23,500.00. The 'confirmation as referred to in paragraph 9(c) hereof' has never occurred. The non-performance of other terms has been the explanation for that.
8. By paragraph 3 of the Terms of Settlement, Citisolar agreed to perform rectification works as set out in a report of IT Power Pty Ltd dated 16 November 2012. (Coliban had commissioned IT Power Pty Ltd to give that report.) By paragraph 4, the parties agreed that the rectification works were to be completed by 6 December 2013 and were 'to be certified by IT Power Pty Ltd'. Paragraphs 5 and 6 provided:
   1. Upon completion of the rectification works, Citisolar will provide a written notice to Coliban confirming the rectification works have been completed.
   2. Within 14 days of Coliban receiving the written notice referred to in paragraph 5 herein, Coliban shall, at its own expense, engage IT Power Pty Ltd to inspect the rectification works and provide a certificate confirming that the rectification works have been satisfactorily completed ("the certificate") to both Coliban and Citisolar.

Under paragraph 7 Citisolar was entitled to have a representative present during IT Power Pty Ltd's inspection.

1. In two respects - one minor and one major - what the parties in those paragraphs had agreed should occur did not occur.
2. The minor respect was that, as I find, although Citisolar substantially completed the rectification works it did not complete them entirely. At the reinstatement hearing on 25 September 2015 Mr Koadlow for Coliban alleged that there were several items that Citisolar did not complete and that he had notified Citisolar of those by email, but he did not produce any of the emails and there was only one item about which he gave any evidence. That item in the report from IT Power Pty Ltd related to the installation at Tylden Farm House and was as follows:

Description: The inverters were located on an east-facing wall, with little to shade them in the morning. The direct sunlight may cause the electronics to overheat, thus reducing their lifetime. Furthermore, the inverters are exposed to the rain. Although they are rated IP 65, it is considered best practice to keep them out of the rain, as the IP rating is not something to be relied on for the next 20 years.

Solution: Install a little shade over the inverters to protect them from the sun and the rain.

Mr Koadlow's evidence, which I accept, was that the shade that Citisolar placed over the inverters, in purported rectification of the item, was made of plywood and did not keep out the rain.

1. The major respect was that IT Power Pty Ltd did not perform any inspection and so did not provide any certificate as to completion of the rectification works.
2. Mr Koadlow's evidence was that he endeavoured to engage IT Power Pty Ltd to inspect and to certify, as Coliban had been required to do, but IT Power Pty Ltd, being a company located in Canberra, refused to become involved again. He did not produce any correspondence between Coliban and IT Power Pty Ltd. I am sceptical. One wonders why a company which had had its expert witness travel from Canberra (if it had) to inspect and provide a detailed report to Coliban before the compulsory conference would refuse a request to undertake what was probably a less onerous task of inspecting again and providing a certificate. Despite my scepticism I am not prepared to reject Mr Koadlow's evidence in that regard. There is no basis, therefore, on which I could find that Coliban sabotaged the Terms of Settlement by deliberately not engaging IT Power Pty Ltd to inspect and to certify.
3. I have inferred that Citisolar did provide written notice of completion as paragraph 5 of the Terms of Settlement required, even though neither party gave evidence of that fact. Had Coliban not received that notice, the occasion for it to ask IT Power Pty Ltd to inspect and certify, as Mr Koadlow swore that Coliban did ask, would not have arisen.
4. Each party had an implied obligation to do all things that it necessarily could have done to enable the other party to have the benefit of the Terms of Settlement: Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 597 at 607; Butts v O'Dwyer [1952] HCA 74; (1952) 87 CLR 267 at 280. As the Terms of Settlement required Coliban to initiate the inspection and to bear the expense of the inspection and of the certificate, I consider that Coliban had the primary obligation to do all things that it could reasonably have done to achieve a certificate. If IT Power Pty Ltd had been unwilling to inspect and certify Coliban cold have sought to engage a different expert to do it. Mr Koadlow did not give evidence of any attempt on Coliban's part to engage a different expert. In my view it breached the implied obligation.
5. At all events the absence of any certificate had a cascading effect that rendered paragraphs 8 and 9 of the Terms of Settlement unworkable.
6. Paragraph 8 provided:

8. Within 14 days of receipt of the certificate by Coliban/Citisolar:

(a) Citisolar shall provide to Coliban 4 Photvoltaic (Solar) Generator Connection Forms (one with respect to each of the contracts) with Coliban to fully complete and sign "Section 3 - Generator Owner Details" of each of the forms and return them to Citisolar within 7 days;

(b) Citisolar will obtain a Certificate of Electrical Safety with respect to each of the systems;

(c) Citisolar will lodge the necessary paperwork with Powercor and pay any applicable fees required by Powercor, including up to three truck visit fees for the meter reconfiguration noting that any truck visit or meter charges relating to Tylden Farm House will be borne by Coliban;

(d) Coliban will provide in writing to Citisolar a copy of the electricity account for each of the systems.

Citisolar did not provide forms to Coliban, obtain a certificate of electrical safety or lodge paperwork with Powercor. Because it had not received the 'certificate' referred to in paragraph 6, the time for Citisolar's compliance with paragraphs 8(a), (b) and (c) has not run and so it cannot be said to be in breach of obligations under those paragraphs. It is hard to understand, however, why Citisolar did not do what it had agreed to do under those paragraphs so that it might bolster its claim to be entitled to the balance of $23,500.00 of the settlement sum. Coliban did not provide electricity accounts to Citisolar. Again, the time for its doing so has not run and so it has not breached paragraph 9(d), but it is hard to understand why nevertheless it did not provide the accounts.

1. Paragraph 9 provided:
   1. Within 14 days of receiving the electricity accounts referred to in clause 8(d), Citisolar will:

(a) if required provide Photovolaic (Solar) Generator Connection Forms, Electrical work Requests and Certificates of Electrical Safety to the relevant electricity provider of each system referred to in the registration notice;

(b) provide a copy of the Certificates of Electrical Safety with respect to each of the systems to Coliban;

(c) provide written confirmation to Coliban that all paperwork necessary to obtain the applicable feed-in-tariff has been submitted and received by the relevant electricity provider. Furthermore, Citisolar will provide prompt responses to any reasonable requests for additional information received from the relevant electricity provider.

Citisolar has not done any of the things that under paragraph 9 it agreed to do, but because it has not received the electricity accounts the time allowed for it to do them has not run. On the other hand, because it has not provided 'written confirmation' to Coliban in accordance with paragraph 9(c), the obligation upon Coliban under paragraph 2(b) to pay the balance of $23,500.00 has not yet arisen.

1. Paragraph 10 of the Terms of Settlement was a consent to orders being made that would strike out both proceedings with a right to apply for reinstatement and with no order as to costs.
2. Paragraph 11 provided that if Coliban failed to pay 'at the time provided for in paragraph 2' Citisolar would be entitled to reinstate its proceeding and obtain a consent order for payment of the amount outstanding. For reasons given above there has been no failure to pay 'at the time provided for in paragraph 2' and so Citisolar has no present entitlement to an order for the payment of $23,500.00.
3. Paragraph 12 provided that if Citisolar 'fails to fulfil its obligations' Coliban would be entitled to reinstate its proceeding and obtain a consent order for refund to it of $14,000.00. Strictly speaking, Citisolar has failed to fulfil its obligations under paragraphs 3 and 4 because of not having provided a proper covering for inverters. Yet Coliban has itself failed to fulfil an obligation, albeit implied, under the Terms of Settlement. It is not presently entitled to a refund of $14,000.00 or of any amount.
4. Even though the particular rights of reinstatement under paragraphs 11 and 12 do not exist, the Terms of Settlement are unworkable and presently cannot be enforced. So both proceedings ought to be reinstated. The unhappy consequence is that the parties may resume the two proceedings as if there had never been any Terms of Settlement.
5. It seems to me that a reasonable amount of good faith and good sense on both sides could easily save both parties the delay, expense and risk that they would have to experience if the two proceedings were fought through to a final hearing. It would not be hard to deal with the matter of the inverter cover. During the reinstatement hearing Mr Coles and Jacquie Hatterell of Citisolar told me that Citisolar had ordered a replacement cover but it had been damaged in transit and it would be difficult to obtain another. Perhaps Coliban could be given a credit for the item. It ought to be possible for some expert other than IT Power Pty Ltd to inspect and certify, even now, that that the existing Terms of Settlement could be rendered workable or could be modified if need be.
6. For those reasons I shall order in each proceeding that it is reinstated but I shall direct the principal registrar to require the parties to attend a further compulsory conference so that they have a chance to resolve the disputes as sensibly as they tried to resolve them in October 2013.