This is an appeal against a decision made on 18 August 2022 (Decision) in the Consumer and Commercial Division of the Tribunal (Tribunal).
The proceedings were commenced under the Home Building Act 1989 (NSW) (NSW) (HBA). For reasons explained in the Decision, the Tribunal considered that it had no jurisdiction under the HBA. The Tribunal did however find it had jurisdiction to determine the application under the s 79J of the Fair Trading Act 1987 (NSW), s 28(1)(a) of which applies the Australian Consumer Law as set out in Sch 2 of the Competition and Consumer Act 2010 (Cth) as law in New South Wales (ACL).
For reasons which we will summarise later in these reasons, the Tribunal dismissed the application.
For the following reasons, we have decided to refuse leave to appeal, and otherwise to dismiss the appeal.
[2]
The Decision
To understand the grounds of appeal and submissions, it is appropriate to briefly summarise the Decision.
Having summarised the evidence and relevant law the Tribunal then set out its relevant findings of fact. There are not lengthy and may be set out in full:
41. The claim has been filed as a home building claim under the HBA and has proceeded on that basis.
42. I am not satisfied that it is a home building claim as it does not deal with defects in home building work but is more properly classified as a claim under s.60 of the ACL for a failure to provide services with due care and skill.
43. The Applicant acquired goods and services from the Respondent by acceptance of the Respondent's quote for Option 4 in it's email of 17 December 2020.
44. I am satisfied that the Applicant acquired those goods and services as a consumer and that the Respondent was a supplier for the purposes of the ACL. The solar system was acquired in trade and commerce, the total cost of the system was less than $40,000 and in any event the goods and services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
45. There is no complaint by the Applicant that there was any fault in the goods provided by the Respondent in performance of the contract but rather that the installation services were not provided in accordance with what the Applicant had agreed.
46. The Applicant claims that all 27 panels that were fitted on 4 February 2021 could and should have been installed on the western side of his roof. He also, claims that the said panels should have been installed in landscape orientation which would have allowed all panels to be so fitted.
47. The Applicant provides no evidence to support those contentions.
48. The Applicant was advised as early as 14 December 2020 that there were only 5 rows of screwlines available on his western roof to be used to mount rails. That meant that only 2 rows of panels could be installed on the western roof.
49. It is unfortunate that only 3 days later the Respondent sent the email which contained 3 out of 4 options that included installing all panels on the western side of the roof using a new racking system with greater spacing tolerances. No evidence was provided as to that system.
50 The Respondent advised the Applicant again on 4 February 2021 that the panels would not all fit on the western roof.
51 I accept that it was up to the installer of the solar system to determine if all panels could be fitted on the western roof in compliance with all regulatory requirements and the manufacturer's requirements, particularly as to warranty. It was problems with the previous installation breaching the manufacturer's requirements and concerns with ongoing warranty that lead to this transaction.
52 It is also unfortunate that the design prepared on 19 January 2021 was not provided to the Applicant until it was requested by him after the installation. While the photograph in the design appeared to show all panels installed on the western roof, the written notes were clear that the designer did expect that all panels would fit on the western roof.
53 Whilst I hold those concerns I am not satisfied that there is any sufficient evidence that the Respondent in installing the solar system at the Applicant's premises on 4 February 2021 demonstrated any lack of due care and skill in relation to the services that were ultimately provided.
54 The Applicant has provided no evidence that all 27 panels could have appropriately been installed on the western roof either in landscape or portrait orientation or a combination of the two.
[3]
Notice of Appeal
The appellant's grounds of appeal are stated as follows:
The following list refers to incorrectly stated and recorded in the reasons for decisions
Incorrectly quoted evidence supplied on applicant claims in The Application. (No 1) [1]
My reply to email on 14th December 2020 was no panels on the eastern roof this email was regarding the old system under warranty claim. (No 20)
Incorrectly quoted evidence supplied on the wording for option 3&4 of 17 December 2020. (No 21)
Respondent did not send design of system as deliverable with quotation (No 24) and Terms and conditions state a full refund if system significantly different to that quoted (No 25)
Incorrectly quoted evidence supplied claims of fitting panels to western roof by the Applicant (No 46) As per option 4 supplied and accepted by the Respondent.
The Solar design was not provided to the Applicant as it was prepared on the 19th January 2021. This formed part of the signed agreement and as per Terms and Conditions The installer on the day should have had the design prior to the commencement of work for me to view and sign off before the removal of the existing system.
The respondents own in office designer noted issues with the placement of solar panels in the solar design dated 19th January 2021 and this should have been communicated to the Applicant this was contrary to option 4 accepted by the Applicant and Respondent prior to the 4th February 2021 (No 52)
The system was not installed as detailed in option 4 of email dated 17th December 2020 from the Respondent and accepted by the Applicant (No 53)
The applicant as not required to supply evidence that all 27 Panels could fit on the western roof this was part of the signed agreement option 4 emailed to the Applicant from the Respondent on the 17th December 2020 and signed on 16th January 2021 (No 54)
The Solar Design I supplied dated 19th January is from the designer and the design emailed to me on the 4th March has been altered with crucial notes deleted.
(typographical and grammatical errors as in original)
In the Notice of Appeal, the appellant states that he is seeking leave to appeal. He submits that the Tribunal:
confused the issues of the old system and what [was] offered as a solution to my warranty claim by offering a new system on the 17th December 2020.
The appellant submits that the Decision was not fair and equitable:
because I signed an agreement, which was mutually agreed to as a solution to our long standing issue on my warranty claim from my solar system installed in 2013. I paid all the monies requested, I was not provided with a solar design as per contract Terms and Conditions and my solar panels were not installed according to the agreement.
The tribunal looked at issues on my warranty claim on my initial system and confused the issues with the mutual agreement signed on 17th December but did not make a ruling on the singed agreement of the 17th December 2020.
The appellant also submits that the Decision was against the weight of the evidence. After reciting the evidence, the parties relied on at the Tribunal hearing, he submitted that:
More weight should have been given to the email dated 17th December 2020 which outlines 4 options to quote "bringing this longstanding matter to a close" this was a new contract on a new solar system and subject to new terms and conditions, it made no reference to available screw lines, new racking systems etc. Option 4, which the Applicant decided on, was based on a mutual resolution with the Respondent, to fix the issues of the warranty claims of my old system installed in 2013 and offered a new solar system, new inverter and 27 Canadian solar panels "all on the western roof " My evidence includes all email correspondence not selected emails. The Tribunal should give more weight to evidence supplied by the Applicant as there are issues with the reading of the evidence an w it affected the decision.
These matters were amplified in lengthy written submissions relied on by the appellant, and in further lengthy oral submissions at the appeal hearing in which he amplified all these matters. Of the various matters he explained to the Appeal Panel, in particular, he said at the appeal hearing:
1. as to par [46] of the Decision (set out above), he was not concerned about the orientation of the panels;
2. as to par [47] of the Decision, he accepted that he had provided no evidence to support the contentions in par [46] ("that was fine");
3. par [48] makes no reference to "the later contract";
4. as to par [49], he queries the Member's use of the word "unfortunate" ("why would it be unfortunate?");
5. as to par [52], "the design was a deliverable as part of the contract" which was signed on 16 January 2021. This constitutes a point of law as he could not have signed the contract without the design specifications.
Of particular importance to appellant was the fact that no design specifications were provided to him until the installation of the solar system on 4 February 2021.
We discussed that issue at length with the appellant during the appeal hearing, noting that, according to the Decision, he had authorised the placement of the solar panels on his roof on the day of installation. The appellant said that he was under "stress" and duress" at the time, and that he "would never have signed a contract without a design". The appellant said he only agreed because he was not told informed of his right to be supplied with the design.
He also submitted that the respondent's conduct was misleading and deceptive.
[4]
Reply to Appeal
In the Reply to Appeal the respondent states that it supports the original orders of the Tribunal and that it acted in the best interests of the appellant.
This was confirmed in both written submissions and in the oral submissions of Ms Stark at the appeal hearing.
[5]
Nature of an appeal
Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
[6]
A question of law
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right.
In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Nor is one claimed. Accordingly, the appellant requires the leave of the Appeal Panel to bring the appeal.
[7]
Leave to appeal
Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if 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).
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 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.
Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
[8]
Consideration
The Tribunal found, and the evidence establishes, that on 16 January 2021 the appellant accepted a quotation from the respondent for the installation of 27 solar panels for a total price of $10,088.84 ($5,197.50 was to be paid by the NSW Government Solar Rebate Scheme).
The terms and conditions of the contract entered into relevantly provided:
VARIATIONS TO THE CONTRACT
A) Any variations requested by the Client after the Contract Date must be made in writing to the Company and signed by both parties.
B) The Company may decline to execute any variation.
C) The cost of any additional work agreed shall be added to the Contract Sum and shall be paid on or before the completion of such work.
…
CANCELLATION OF ORDER
The customer will receive a full refund on [sic - in] the following circumstances.
A) The final solar design system is significantly different to that quoted at the point of the contract and is not signed by the customer.
B) The site-specific full solar design and performance estimate is not provided as a deliverable of the contract.
As we understand the evidence, the site-specific full solar design and performance estimate was provided to the appellant on or after 5 February 2021. This was after:
1. the solar system had been installed on 4 February 2021;
2. at which time the appellant was advised that not all the panels would fit on the western roof and 7 panels would need to be fitted to the eastern roof (Decision at [26]);
3. the appellant agreed to this change and installation of the solar system on 4 February 2021 (Decision at [26]);
4. the appellant signed the STC Assignment Form authorising the payment of the rebate to the respondent (Decision at [27]).
In those circumstances, we see substance in the respondent's submissions that:
1. the screw lines on the appellant's roof made it impossible to install 27 solar panels solely on the western roof whilst complying with the manufacturer's guidelines;
2. as it was not possible to install these panels in a landscape orientation due to the screw lines on the appellant's roof;
3. the course of action to install 7 panels on the front roof was agreed to by the appellant on site on the morning of the installation;
4. at no stage did the appellant request that the installation not proceed and the installation only proceeded after he agreed to the panel location, including 7 panels on the front roof, on site on 4 February 2021;
5. at no stage did the respondent pressure or coerce the appellant to proceed on 4 February 2021.
As to this last matter, in the absence of any reference to duress in the Decision, and in the absence of a sound recording or transcript of proceedings, we are not satisfied that this issue was ever raised before the Tribunal, and therefore this matter cannot be raised on appeal. As the plurality of the High Court of Australia noted in Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33:
. . . in a recent decision of six Justices of this Court (University of Wollongong v. Metwally [No. 2] ) the Court said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. (citations omitted)
See too Drivas v Burrows [2014] NSWCATAP 87 where the Appeal Panel observed:
32. The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act (the Act).
33. Generally, a new point will not be allowed where the consequence would have to be a new trial because "evidence could have been given which by any possibility could have prevented the point from succeeding": Suttor v Gundowda [[1950] HCA 35; (1950) 81 CLR 418] at 438.3.
We make the same observation about the appellant's allegation of misleading and deceptive conduct by the respondent. This is not mentioned in the Decision, and no transcript or sound recording was provided despite directions to do so.
There was no error in the Tribunal in failing to find that the appellant's acceptance of the change of the location of the solar panels on 4 February 2022 was an oral variation which was not permitted by the term of the contract requiring variations requested by him to be made in writing to the respondent and to be signed by both parties. Even if this term applied in the circumstances, it is an established principle that parties may enter into a binding subsequent contract to vary an existing contract by an oral or implied agreement, despite the fact that the existing contract provides that it may only be amended in writing: Australasia Development (M) Pty Ltd v Glenwood Estate (Vic) Pty Ltd [2021] VSC 758 at [53(b)].
For completeness, we see no substance in the appellant's assertion that the Tribunal confused issues between the old system and the new system. Save for being background information which provides an understanding of circumstances in which the contract the subject of the proceedings and appeal was entered into, it is not relevant to our determination.
[9]
Conclusion
An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Appeal Panel stated in Temple v AMR Motors Pty Limited [2017] NSWCATAP 221:
38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so).
39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member.
To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website):
… an appeal is not an opportunity to have a second go at a hearing.
This appears to be precisely what the appellant is seeking to do.
Nor does an appeal provide an appellant the opportunity to raise arguments that were not raised before the Tribunal (such as the only reason that the appellant agreed to the contract was that he was the victim of "duress" and "didn't have a choice").
In this respect "it is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so": University of Wollongong v Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481; approved in Coulton v Holcombe at 8.
Leave to appeal should be refused.
We are not satisfied that any ground on or matter raised by the appellant involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
Finally, we note that in his written submissions the appellant states that he believes he is entitled to a full refund of the amount of $11,097.50, including the $5,197.50 paid to the respondent under the relevant government scheme.
We cannot see any basis, even if the appellant was successful on appeal, why he would be entitled to monies paid to the respondent by the Australian government.
Furthermore, we note that in its written submissions the respondent claimed that that it had not been paid the balance. If this is correct, and we note that the issue was not explored on appeal as it was irrelevant to the appeal, then the appellant would not be entitled to recover monies which he had never paid.
[10]
Orders
The Appeal Panel orders that:
1. The application for leave to appeal is refused.
2. The appeal is otherwise dismissed.
[11]
Endnote
This and the following numbered references appear to be references to the relevant paragraphs of the Decision.
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: 08 December 2022
Parties
Applicant/Plaintiff:
Divola
Respondent/Defendant:
Natural Solar Power Pty Ltd
Legislation Cited (5)
Australian Consumer Law Civil and Administrative Tribunal Act 2013(NSW)