On 23 March 2022 Green Power Planet Pty Ltd, the appellant, (Green Power) lodged an internal appeal against a decision of the Tribunal made on 23 February 2022 that the appellant pay Dominic Deschanel, the respondent, (the homeowner) $4,400.00 being damages flowing from the faulty installation of a solar power system, which had cause roof leaks.
The internal appeal as made within time. The decision appealed against is in writing (the decision). It relates to the second order the Tribunal made in the dispute.
The first order was made in respect of an application brought by the homeowner numbered HB 21/26385 on 17 June 2021. The Tribunal made the following work order, by consent, with respect to that application on 12 August 2021:
By consent, the Tribunal orders that the respondent Green Power Plant Pty Ltd t/as Solar World … is to carry out the following work on or before 3-Sep-21 in a proper and workmanlike manner:
Details of work order:
The installer will attend and remove the solar panels to repair the roof leak and reinstall the panels in accordance with Australian standards. The work is to be done by an appropriately licensed worker and they are to provide their details to the applicant 24 hours prior to attending the site to complete the work.
On 1 December 2021 the homeowner, filed a Renewal of Proceedings Application in which he alleged that the work order had not been complied with and sought a money order for $6,895.04 (the renewal proceedings).
The renewal proceedings were heard by the Tribunal on 23 February 2022. Both parties appeared and put their respective cases to the Tribunal. At that hearing the homeowner was self-represented, and Green Power was represented by Mr Huq, a director. They also appeared on the appeal hearing before us.
In its decision the Tribunal found that, at [19]:
After the works were carried out in September 2021 the roof continued to leak.
The reasons recorded that when the homeowner found that the roof was still leaking, he had then obtained a report on the rectification work from another solar contractor, "Solar Service Guys" (SGC). This reported, among other things, that:
"Overall this system is not installed to industry best practice, there are parts of the system that are non-compliant to the standards at the time of installation.
The ground DC isolators are rear entry and do not maintain the IP integrity stated by the manufacturer.
The inverter DC isolators are not readily accessible due to their height.
Array earth is running straight to the inverters external earthing point, this does not meet compliance as if the inverter is removed for repair or replacement the array earth is not continuous.
Inverter AC isolator is not adequately secured to the wall.
Array cabling and conduit has been secured with plastic ties. Some cables are laying directly on the tiles.
Several sections of the array have cabling exposed to UV
All observed tiles are not sitting flush giving a point of water ingress. Some tiles have silicone within their channel, this has high potential for water ingress.
Some sections of the array are slightly within the roofs edge zone.
Some rows have been installed outside of manufacturer clamping zones."
The report recommended that the system needed to be removed to fix water ingress problems and that the solar system be replaced.
The reasons noted that Green Power had provided photographs of the installation and a letter from the installer, Ashish Naraya, which said:
I have installed the solar system which is working correctly but will not take any responsibility on roof leaks as its clearly seen in photos and videos that the roof tiles are not sitting in place is the issue.
The Tribunal noted Green Power did not produce any independent evidence refuting SGC's report. It accepted SGC's report and found that the defects it reported were established and that the work done was not to Australian Standard.
In assessing damages, the Tribunal noted that it was satisfied that the solar panels could be reused and pointed to difficulties in assessing rectification costs in the absence of an itemised quote from SGS. The Tribunal also had regard to other quotes obtained by the homeowner and assessed rectification costs at $4,400. This was the amount quoted by "Southside Electrical and Solar" on 22 March 2021 for work consistent with that which the Tribunal found necessary. It made an order that Green Power pay the homeowner that amount.
[2]
The Notice of Appeal
In its notice of appeal Green Power claimed it was surprised when it was advised of the renewal of proceedings on 19 January 2022, as all issues had been fixed by its installer in September 2021. Instead of a money order made on renewal by the Tribunal', Green Power wanted to be given "the opportunity fix the work - or by the insurance."
Green Power sought leave to appeal on the ground that it may have suffered a substantial injustice because the decision was:
1. not fair and equitable as:
1. the installer who carried out the rectification work was not an installer with Green Power as the Tribunal assumed but an "independent contractor";
2. until alerted to the renewal proceedings Green Power believed the matter was settled;
3. on the hearing day (of the renewal) Green Power was not given the opportunity to fix the problem or obtain fresh quotes;
4. making a money order was not fair in the circumstances; and
1. against the weight of evidence as:
1. the decision disregarded the evidence of the "independent contractor" who had undertaken the rectification work (as quoted in para [7] above) which denied any defects; and,
2. that the Tribunal had misunderstood his evidence that a new solar system should cost not more than $3,000 when it found at para [39] of its decision that the work should cost no more than that.
[3]
Nature of an appeal
Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the 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)).
[4]
Appeal on a question of law
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, 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. The Appeal Panel explained, at [11] that in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. In this case we have done that and have not identified any issue agitated by Green Power which gives rise to a question of law.
[5]
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 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 it 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 Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
[6]
Consideration
The issues raised by the appellant in this case do not raise a matter of public policy, or a matter of public of administrative importance. This is not intended to minimise the importance of the issues to the parties, but to acknowledge that the issues raised in this appeal do not, of their nature, require that leave to appeal be granted. Rather, our focus, when considering leave to appeal, is on what happened during the hearing and whether either party may have suffered a substantial injustice, or whether there was something so unorthodox about the hearing below that leave to appeal should be granted.
It is first necessary, however, to consider whether Green Power can rely on an undated letter from the installer, Anish Narayan, written in response to the appeal and filed on 5 April 2022. This is a letter which Green Power could have been obtained from Mr Narayan before the renewal proceedings were heard on 22 February 2022. It, therefore, cannot be admitted as evidence on the appeal as it is evidence that could reasonably have been obtained before the renewal hearing.
As is the usual procedure in internal appeals in the Tribunal, at a directions hearing held on 8 April 2022, the Tribunal ordered the parties to the appeal, if they were relying on what happened at the hearing, to provide a sound recording of the hearing, with a typed copy of the relevant parts. Neither party has complied with this direction, even though Green Power is clearly relying on what occurred during the hearing. It should be noted that the Tribunal's Internal Appeals Guideline at para [62] warns:
… there are many decisions of the Appeal Panel where appeals failed because the appellant had decided not to provide the sound recording and typed copy of what was said, and then tried to rely on what was said at the hearing of the appeal.
As appellant, Green Power bears the burden of persuading the Appeal Panel that there may be a substantial injustice in the decision which arose from something that occurred in the hearing. The best evidence of what occurred in a hearing is the sound recording and an accurate transcript of what was said. Thus, Green Power's complaint that it was not given an opportunity to obtain fresh quotes must fail as there is no evidence that Green Power ever asked the Tribunal for an opportunity to get fresh quotes, and it had an opportunity to do so before the renewal hearing. So too, with respect to Green Powers assertion that the Tribunal misunderstood Mr Huq's evidence with respect to the costs of rectification being $3,000. Without evidence of what was said, it is not possible for us to draw a conclusion in Green Power's favour, irrespective of whether there is any merit in the point.
As we understand it Green Power also complains that it had the rectification work done by an "independent contractor" (Mr Narayan) who the Tribunal wrongfully characterised as Green Power's 'installer'. The suggestion is that the Tribunal did not give Mr Narayan's evidence the weight it deserved coming from an "independent contractor". That submission does not withstand the weight of analysis. The evidence before the Tribunal was that Mr Narayan did the rectification work for Green Power. In those circumstances he was Green Power's installer, with attendant obligations to that company. His evidence was not that of an independent contractor but that or an employee or contractor with Green Power. This aspect of the decision was not against the weight of evidence and was clearly open to the Tribunal. It was fair and equitable. It does not suggest that substantial injustice might have occurred.
Green Power also complained of the unfairness of the Tribunal making a monetary order in circumstances where, it says, it had only been aware of the homeowner being dissatisfied with rectification work from 19 February 2022. Green Power believes that a further work order would have been appropriate. We disagree.
When the dispute first came before the Tribunal on 12 August 2021, the Tribunal made a consent work order which gave Green Power the opportunity to rectify the work in an agreed manner stipulated in the order. Among other things it also informed the parties that the proceeding could be renewed if the order were not complied with. That was Green Power's opportunity to remedy its defective work. Cl 8 of Sch 4 of the NCAT Act provides:
(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4) When proceedings have been renewed in accordance with this clause, the Tribunal -
(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or
(b) may refuse to make such an order.
(5) This clause does not apply if -
(a) the operation of an order has been suspended, or
(b) the order is or has been the subject of an internal appeal.
In Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [45] an Appeal Panel considered the purpose of a renewal under cl 8:
… is to consider what to do next given a non-compliance, but not to rehear the substantive merits already determined, and to do that on the basis of material put forward by the parties relevant to the issue of what to do next. As was said in Akratos v Papadopoulos [2016] NSWCATAP 139 at 36:
the purpose of the renewal proceedings was to consider, in light of the fact that the original order was not complied with, what other appropriate orders it could have made when the matter was originally determined and not to reconsider the substantive merits of the respondent's building claim.
In Minifie v Maxwell [2020] NSWCATAP 30 the Appeal Panel explained:
"[37] The provisions of Cl 8 Sch 4 of the NCAT Act are "an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders": Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [26] ('Vasudevan').
[38] In making orders that are "appropriate" in renewal proceedings, the Tribunal may have regard to the orders originally made; the circumstances of non-compliance with those orders; the fact of the renewal application; and all relevant circumstances whether they occurred before or after the time the matter was originally determined: Vasudevan at [34]-[35]. In Vasudevan, the Appeal Panel stated at [35]:
…A renewal application is, however, designed to deal with a situation where there has been non-compliance with the original order that the Tribunal thought was appropriate when the matter was first determined. The circumstances will inevitably have changed since that time, if for no other reasons than because there has been non-compliance with the order that had been made. What was appropriate originally may well not be appropriate at the time of the hearing of the renewal application. To limit the orders that could be made on renewal to those that would have been appropriate when the matter was originally determined would be likely to prevent the Tribunal from doing justice between the parties, having regard to the non-compliance with the original order and to any other circumstances that had changed materially since the proceedings were originally determined. This would render the right to renew proceedings ineffective in a significant number of cases.
[39] The Tribunal has a wide discretion in renewal proceedings to determine what are appropriate orders, including the power to make orders that could not have been made in the original proceedings because there was no power to make a particular order at that stage, but such a power has been enlivened by subsequent events: Vasudevan at [41]-[43]; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [43]-[45]; [54]
The money order made by the Tribunal on renewal was clearly one that was open to it when the claim was first heard: see s48O(1) of the Home Building Act 1989 (NSW). By making a money order the Tribunal brought an end to the ongoing dispute between the parties, in circumstances where Green Power had been given an opportunity to rectify its work, but had failed to do so. The decision to make a money order was consistent with those facts and was fair and equitable.
[7]
Disposition
It follows that the appeal is bound to fail and that leave to appeal is refused accordingly.
The formal orders made by the Appeal Panel are:
1. Leave to appeal is refused.
2. The appeal is dismissed.
[8]
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: 30 September 2022