On 29 June 2017, the applicant, Romani Ibrahim, lodged an application seeking an order that he did not have to pay an amount of $13,300. The application named two respondents - SCE Solar City Enterprises Pty Ltd (SCE) and Habitat Energy Systems Pty Ltd (Habitat).
The applicant subsequently obtained legal advice and refined his claim. At the hearing, the applicant sought the following orders:
1. The applicant is released from the original contract with the respondent (sic) on the basis of breaches of the Australian Consumer Law (contraventions of section 18 and 29(1)(i) - Misleading and Deceptive Conduct, section 21 - unconscionable conduct in connection with goods or services, and sections 69 and 82 - Unsolicited consumer agreements).
2. The respondent reduces the cost of the Solar Generation System to $3500 and the remainder, minus what the applicant has already paid, is payable by instalments.
3. The respondent pays pecuniary penalties for unfair practices pursuant to the Australian Consumer Law.
4. Such further orders as the Tribunal thinks fit.
[2]
BACKGROUND
In or about March 2016, a representative of the first respondent (SCE) made door-to-door contact with the applicant in relation to the provision of solar generated electricity. The applicant entered into an agreement with the second respondent (Habitat) for the purchase of electricity. The electricity was generated by solar panels installed by SCE.
The applicant contends that he was misled by the first representative of SCE who the applicant states told him that the applicant would have no money to pay and that the solar system would allow unlimited usage of electricity and offer an incoming tariff at $0.15 per kilowatt hour and a sale tariff of $0.20 per kilowatt hour.
The applicant further contends that the representations made by SCE were misleading and deceptive in that they were false as the applicant paid a greater monthly amount for the solar generation system than he did under his electricity contract prior to the installation of the solar generation system. The applicant further asserts that he would not have entered into the contract but for the misleading and deceptive conduct of SCE.
The applicant further contends that SCE engaged in unconscionable conduct as the relative strengths of the bargaining positions of SCE and the applicant were not equal. The applicant states that his first language is Arabic, that his understanding of spoken English is basic, and he is unable to read formal English.
The applicant states that he was not able to understand any documents relating to the supply or possible supply of the solar generation system due to his inability to read contracts and legal documents in English. The applicant further states that unfair tactics were used against him by persons acting on behalf of SCE. The applicant further states that SCE and its representative misrepresented the cost and functionality of the solar generation system to the applicant.
The applicant states that he was not accurately advised of the price or functionality of the goods being sold. He also contends that he was not informed of his right of termination under section 82 of the Australian Consumer Law (ACL) of an unsolicited consumer agreement.
The applicant contends that he could have acquired an identical solar generation system from another supplier for $3500.
[3]
JURISDICTION
Jurisdiction is conferred on the Tribunal to hear and determine any consumer claim by s 79J of the Fair Trading Act 1987 (FTA) which provides:
79J GENERAL STATEMENT OF JURISDICTION
The Tribunal has jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division.
The meaning of "consumer claim" is set out in s 79E of the FTA:
79E MEANING OF "CONSUMER CLAIM"
(1) For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services:
(a) the payment of a specified sum of money,
(b) the supply of specified services,
(c) relief from payment of a specified sum of money,
(d) the delivery, return or replacement of specified goods or goods of a specified description.
(2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
"Consumer" and "supplier" are defined in s 79D of the FTA as follows:
"consumer" means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services:
(a) a natural person,
(b) a firm (within the meaning of the Partnership Act 1892 ),
(c) a small proprietary company (within the meaning of the Corporations Act 2001 of the Commonwealth),
(d) an owners corporation constituted under the Strata Schemes Management Act 2015 ,
(e) a company that owns an interest in land and has a memorandum or articles of association conferring on each owner of shares in the company a right to occupy under a lease or licence a part or parts of a building erected on the land,
(f) an incorporated association,
(g) an unincorporated body whose members are associated for a common purpose,
(h) a company limited by guarantee (other than a company limited both by shares and by guarantee).
"supplier" means a person who, in the course of carrying on (or purporting to carry on) a business, supplies goods or services.
Section 28 of the Fair Trading Act 1987 applies the ACL as a law in New South Wales:
28 Application of Australian Consumer Law
(1) The Australian Consumer Law text, as in force from time to time:
(a) applies as a law of this jurisdiction, and
(b) as so applying may be referred to as the Australian Consumer Law (NSW), and
(c) as so applying is a part of this Act.
(2) This section has effect subject to sections 29, 30 and 31.
[4]
REPRESENTATION OF THE PARTIES
The applicant appeared for and on his own behalf. An Arabic interpreter assisted him.
SCE was represented by its director, Jon de Martin. Habitat was represented by its business manager, Dean Kleinschafer.
[5]
THE APPLICANT'S EVIDENCE
Mr Ibrahim gave evidence that on or about 27 February 2016 a door-to-door representative of SCE approached him at his home asking whether he wanted to install a solar system. On Mr Ibrahim's evidence, the representative, Mr Abhishek Verma, told Mr Ibrahim that he would not need to pay any money at all. Mr Ibrahim indicated that he was interested in Mr Verma's product and Mr Verma said that he would send another representative.
Sometime after the initial contact with Mr Verma, Mr Ibrahim received a telephone call on his mobile telephone and arrangements were made for a representative of SCE to attend Mr Ibrahim's home on Saturday, 12 March 2017.
On Saturday, 12 March 2017, a representative of SCE visited Mr Ibrahim at his home. The representative was Mr Darren Gibson. Mr Ibrahim contends that Mr Gibson told him that he did not have to pay any money. Mr Ibrahim said that Mr Gibson told him that Mr Ibrahim would sell the electricity generated for $.20 per kilowatt hour and would purchase electricity for $.15 per kilowatt hour. Mr Ibrahim asserted that Mr Gibson told him that he would arrange for the installation of a bigger system than what was needed, and that Mr Ibrahim would have unlimited usage.
During the discussions, Mr Gibson told Mr Ibrahim: "When the electricity company calls you, you agree to go with Urth Energy."
Mr Ibrahim repeatedly asserted that he was told the installation of the solar system would cost him nothing. He also claimed that only a fixed monthly payment would be required for unlimited electricity consumption.
On 12 March 2016 Mr Ibrahim signed a supply agreement with SCE. The supply agreement related to the installation of a Trina T54 solar electricity system at a cost of $190.82 per instalment, but does not indicate the number of instalments or the total cost of the solar system on that form. On the reverse of the supply agreement there are 20 clauses setting out the terms of the agreement. The clauses are printed in small print. The second last clause provides:
"IMPORTANT NOTICE TO CUSTOMER: Australian consumer law states that you have the right to cancel this agreement within 10 business days from and including that day after you have signed or received this agreement. Details about your additional rights to cancel this agreement are set out in the information provided with this agreement. NO MONIES ARE PAYABLE FOR 10 BUSINESS DAYS."
Mr Ibrahim also signed a document entitled "RESIDENTIAL POWER PURCHASE AGREEMENT "PAY-AS-YOU-GO SOLAR"" apparently on 12 March 2016. Page 12 of that document was a Rates Schedule which showed that the instalment payment of $190.82 was required each month for 120 months. This document was a contract between Habitat and Mr Ibrahim. Although it appears that Mr Ibrahim signed the document on 12 March 2016, the date of the agreement is said to be 13 March 2016. It was signed on behalf of Habitat by Mr Kleinschafer on 14 March 2016.
The contract between Mr Ibrahim and Habitat recites that Habitat agrees to install a Trina T54 solar system at Mr Ibrahim's premises and to supply solar power to Mr Ibrahim. It also recites that Mr Ibrahim agrees to purchase solar power generated from the system on the terms and conditions set out in the contract.
Mr Ibrahim gave evidence that although a tax invoice dated 22 March 2016 was issued by SCE to Habitat for an amount of $13,300, Mr Ibrahim did not see that invoice until it was shown to him by Habitat recently.
Mr Ibrahim said that he received two monthly bills of $190.82 which did not include any itemisation of the usage. He said that prior to entering into the arrangements with SCE and Habitat, his quarterly electricity bill ranged between $400 and $500 per quarter.
On receiving the monthly bills for $190.82, Mr Ibrahim said that he contacted SCE and asked SCE to take the system away as it was costing more than what he paid under previous arrangements with his energy supplier, Lumo Energy.
Mr Ibrahim said that a representative of SCE, named John, came to his home at around 6 PM on 10 July 2016 and said that he would adjust the cost of the system. Mr Ibrahim asserts that the representative told him that SCE had dismissed Mr Gibson because he was "dishonest and had put larger solar systems on small houses to get more commission for himself." The representative also told Mr Ibrahim that the system would provide unlimited use and he would only get one bill per month for $160. Mr Ibrahim states that he understood that to mean that he would only pay $160 per month for unlimited electricity use. Mr Ibrahim said that he signed a new contract with Habitat on 10 July 2016. The new contract provided for monthly instalments of $160 over a 10-year term.
In response to a claim by Mr de Martin that the solar system installed benefited from TS4 optimisation to overcome shadows created by a satellite dish, Mr Ibrahim said that he would have removed the satellite dish if he was told that would cause a problem in the solar panels' generation of electricity as he no longer had use for the satellite dish.
Evidence on the applicant's behalf was also given by Mr Adel Kamel. Mr Kamel gave evidence as a friend of Mr Ibrahim that he had made inquiries about the cost of comparable systems for solar energy and he, himself, had arranged solar energy systems to be installed in a property which he owned for a cost of about $3,500.
When Mr Ibrahim filed his application, he included three website advertisements for the installation of a 5 kW solar system. The website advertisements were published in June 2017.
Solar Power Nation advertised a 5.4 kW solar system as an "end of year" special for a price of $2,999, fully installed. It included 20 x 270 watt solar panels with a German SMA owned inverter. The advertisement gave no details of any warranties.
Dollar Solar advertised a 5 kW solar system for a price of $3,290, fully installed. It included 20 x 265 watt solar panels with a Sungrow inverter. The advertisement stated that there was a 25-year warranty on the solar panels and a 5-year warranty on the inverter.
Skylight Energy advertised a 5 kW solar system for $3,970, fully installed. It included 20 x 260 watt solar panels and an unnamed 5 kW inverter. The advertisement stated that the products come with a 25-year solar performance warranty, a 10-year product warranty on solar panels and a 5-year warranty on the inverter.
[6]
EVIDENCE ON BEHALF OF SCE
Mr Jon de Martin gave evidence that he was the director of SCE. He said that door-to-door lead generators are trained to state that there is "no upfront cost" and that the system will supply solar power at a cheaper rate.
Mr de Martin confirmed that Mr Darren Gibson was the consultant who attended Mr Ibrahim's home in March 2016. There is some divergence between the evidence of Mr Ibrahim and Mr de Martin about whether the visit from Mr Gibson occurred on 12 March or 13 March. Mr de Martin contends that the visit occurred on 13 March 2017 which was a Sunday.
Mr de Martin said that the consultant whom Mr Ibrahim named John who attended the applicant's premises on 10 July 2017 was Mr Peter McCarthy.
Mr de Martin stated that the adjustment to the monthly payment due to Habitat from $190.82 to $160 per month was instigated by SCE after it discovered that Mr Gibson had made some miscalculations with the electricity consumption which formed the basis of the monthly payment of $190.82. Mr de Martin's evidence is that all consultant workings are reviewed and upon reviewing the calculations for Mr Ibrahim's installation it was found that the installed system was slightly oversized as the original electricity bill from which calculations were made was a higher than usual electricity account.
Mr de Martin said that the calculations revealed that with a lower energy bill, there would be very little initial savings benefit for the applicant. SCE then contacted Mr Ibrahim to arrange a time to discuss a lower monthly fee.
Mr de Martin contended that Mr McCarthy assisted the applicant with completing the Urth Energy documentation and that the Urth Energy documentation clearly showed that Mr Ibrahim would purchase additional green energy for 23.70 cents per kilowatt hour and would receive a solo feed in tariff for excess energy produced of 20cents per kilowatt hour.
Mr de Martin said that on 13 December 2016, Mrs Ibrahim called him to say that the electricity bill was much higher than she was expecting. Mr Martin said that Mrs Ibrahim told him that as the cost of electricity was cheaper, she had replaced gas ovens with electric ovens. Mr de Martin said that the increase in power consumption would be mainly due to the new electric ovens being installed and this was the cause for increased costs of energy. In his written statement tendered to the Tribunal, Mr de Martin said that he calculated that the applicant would save $321.25 in the first year if Mr Ibrahim took advantage of all available discounts.
During the hearing on 13 October 2017, calculations were made by Mr de Martin and Mr Kleinschafer which produced the result that $26.01 for that quarter would be saved.
At paragraph 14 of Mr de Martin's written response to the applicant's claim, Mr de Martin contends that Mr Ibrahim had the structure of the costing explained to him on two occasions by two different people and was still happy to enter into the contract. At paragraph 16 g. of Mr to Martin's written response, he states that the SCE supply agreement has all the terms and conditions on its back page and those conditions include a 10-day cooling off period which was not exercised.
Neither Mr Gibson nor Mr McCarthy provided any statements, nor did they attend the Tribunal hearing to give oral evidence.
Mr de Martin gave evidence that the inverter sold to Mr Ibrahim had a 10-year parts and 5-year labour warranty.
[7]
EVIDENCE ON BEHALF OF HABITAT
No documents were filed and served by Habitat.
At the hearing, oral evidence was given by Mr Kleinschafer who said that Habitat was the seller of solar power. Habitat is not involved in the installation of the solar equipment.
Mr Kleinschafer also gave oral evidence in conjunction with Mr de Martin to calculate the savings which the applicant did achieve on the last bill received from the applicant's current grid supplier, Energy Australia, for that quarter.
Mr Kleinschafer stated that the applicant has been given the option to buy out the solar system for a cost of $10,600.
In an email dated 12 May 2017 sent to the applicant's wife by Mr Kleinschafer, Mr Kleinschafer records that, as at that date, the overdue balance due to Habitat by the applicant was $690. This is probably a typographical error and the amount overdue is more likely to have been $640, being 4 instalments at $160. A customer amortisation schedule attached to the email shows that 9 monthly payments were made between May 2016 and January 2017. The total paid was $1501.67. It seems that instalments due in the months of February, March, April, and May 2017 were unpaid.
[8]
CONSIDERATION
The Tribunal finds that the applicant was a consumer within the meaning of section 79D of the FTA and both SCE and Habitat were suppliers within the meaning of that section.
The applicant claims that the respondents engaged in misleading and deceptive conduct in breach of sections 18 and 29 (1) (i) of the ACL.
The applicant further claims that the respondents are guilty of unconscionable conduct under section 21 of the ACL
The applicant further claims that the respondents have contravened sections 69 and 82 of the ACL in respect of an unsolicited consumer agreement.
[9]
Agency
As the Habitat contract was signed at the same time as the supply agreement made between Mr Ibrahim and SCE, the Tribunal finds that, at all material times, SCE was acting as the authorised agent of Habitat. Clause 7.1 (c) of the Habitat agreement makes it clear that there is a connection between Habitat and SCE. Habitat has not asserted that the contracts entered into between Mr Ibrahim and Habitat were created outside the authority given to SCE to negotiate the terms of the contract on behalf of Habitat. Further support for this finding lies in the fact that in July 2016 SCE, on behalf of Habitat, renegotiated the terms of the contract and arranged for Mr Ibrahim to sign a new contract.
[10]
Misleading and deceptive conduct
Section 18(1) of the ACL provides:
18 Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 18 is a comprehensive provision of wide impact. It does not purport to create liability at all; rather it does establish a norm of conduct, failure to observe which has consequences provided for elsewhere in the ACL or under the general law.
An intention to mislead is not an essential element in a contravention of section 18. Furthermore, it is unnecessary to prove that the conduct actually misled or deceived the applicant. The section provides that the breach occurs if the conduct is likely to mislead or deceive.
Section 29 (1) (i) of the ACL provides:
29 False or misleading representations about goods or services
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(i) make a false or misleading representation with respect to the price of goods or services
Mr Ibrahim gave sworn evidence that he was told by both Mr Gibson and by Mr McCarthy that the monthly payment under the arrangement was the only payment that would be necessary for the supply of electricity to his home.
The evidence is uncontested. Neither Mr Gibson nor Mr McCarthy gave any evidence about conversations they held with Mr Ibrahim. The evidence given by Mr de Martin of what his company's representatives are trained to say is not evidence of what was actually said.
On the uncontested sworn evidence of Mr Ibrahim, the Tribunal finds that both Mr Gibson and Mr McCarthy told Mr Ibrahim that only one payment per month would be required for the provision of unlimited electricity supply to his home. That payment was initially $190.82 and was reduced to $160.
The supply agreement between the applicant and SCE which Mr Ibrahim was requested to sign on or about 12 March 2016 was incomplete. The total cost of the system was not apparent on that form.
Furthermore, the rates schedule attached to the contract between Mr Ibrahim and Habitat did not indicate that any payment other than the monthly payment was required. No evidence has been adduced that the provisions of Clause 7.1 of the Habitat power purchase agreement were brought to Mr Ibrahim's attention or explained to him. Clause 7.1(b) of the Habitat agreement provides that the parties acknowledge that Habitat is not the principal electricity supplier.
The Tribunal finds that SCE, through its representatives, Mr Gibson and Mr McCarthy, made false representations to Mr Ibrahim with respect to the total price of the solar electricity system. The Tribunal finds that the representations were false as the cost of electricity supply to Mr Ibrahim's home was not significantly less than what he had been paying for electricity supply before the installation of the solar panels. The Tribunal accepts Mr Ibrahim's evidence that he would not have entered into the contract with Habitat if he was fully apprised of the total cost of electricity. The Tribunal also accepts Mr Ibrahim's evidence that he was told that only one electricity account would be received from one source.
Unconscionable conduct
Section 21 of the ACL provides:
21 Unconscionable conduct in connection with goods or services
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to a person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);
engage in conduct that is, in all the circumstances, unconscionable.
(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:
(a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or
(b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.
(3) For the purpose of determining whether a person has contravened subsection (1):
(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.
(4) It is the intention of the Parliament that:
(a) this section is not limited by the unwritten law relating to unconscionable conduct; and
(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:
(i) the terms of the contract; and
(ii) the manner in which and the extent to which the contract is carried out;
and is not limited to consideration of the circumstances relating to formation of the contract.
Section 22 (1) of the ACL provides:
22 Matters the court may have regard to for the purposes of section 21
(1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier ) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer ), the court may have regard to:
(a) the relative strengths of the bargaining positions of the supplier and the customer; and
(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and
(f) the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and
(g) the requirements of any applicable industry code; and
(h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and
(i) the extent to which the supplier unreasonably failed to disclose to the customer:
(i) any intended conduct of the supplier that might affect the interests of the customer; and
(ii) any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and
(j) if there is a contract between the supplier and the customer for the supply of the goods or services:
(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and
(ii) the terms and conditions of the contract; and
(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and
(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and
(k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and
(l) the extent to which the supplier and the customer acted in good faith.
During the hearing, Mr Ibrahim gave evidence through an Arabic interpreter. Although he was able to answer some questions in English, the Tribunal is satisfied that his English to transact commercial arrangements is and was, at all material times, limited.
Mr Ibrahim gave evidence that he relied on the representations made by Mr Gibson and by Mr McCarthy. The Tribunal accepts that, in the context of the complicated technical details being presented to Mr Ibrahim, Mr Ibrahim believed what Mr Gibson and Mr McCarthy told him. In paragraph 9 of Mr Ibrahim's statutory declaration dated 28 August 2017, Mr Ibrahim declares that he did not read the paperwork as he is unable to read English and that he trusted Mr Gibson's explanations.
By the time the July 2016 Habitat agreement was signed, it seems that no accounts had been received from Urth Energy by Mr Ibrahim. Thus, was reasonable for Mr Ibrahim to expect that the July Habitat agreement would have been consistent with Mr Ibrahim's understanding (albeit erroneous) of the March 2016 agreement, that only one fixed monthly bill would be received for the supply of electricity to his home.
Mr de Martin contended that the March agreement was entered into on 27 March 2016. It is clear from the documentation that the contract was signed by Mr Ibrahim on 12 March 2016 was signed by Mr Kleinschafer on 14 March 2016. The date of agreement shown in the rates schedule is "13/3/16".
Mr de Martin's submission that the energy-saving structure was explained to Mr Ibrahim on 2 separate occasions by 2 people is not supported by the evidence. Mr de Martin simply does not know what may have been said by either of his consultants to Mr Ibrahim. The only evidence available of the conversations comes from Mr Ibrahim.
Although Mr de Martin gave evidence that the solar system installed by his company was superior to any other system available to be able to cope with the overshadowing of the solar panels by the satellite dish, Mr Ibrahim was not given any opportunity to indicate that the satellite dish was no longer necessary and could be removed. Mr Ibrahim's ability to obtain a cheaper solar system from SCE or elsewhere following the removal of the satellite dish was not canvassed by Mr Gibson.
The fact that Mr Ibrahim has signed and initialled documents showing pricing for solar and wind power does not persuade the Tribunal that Mr Ibrahim understood the nature and effect of the documents. The documents from Urth Energy appearing on pages 21-23 of the bundle of documents presented to the Tribunal by SCE are incomprehensible on their own without further explanation or clarification.
The Tribunal finds that Mr Ibrahim was unable to understand the documents relating to the supply of the solar system and relied on information provided to him by Mr Gibson and Mr McCarthy.
The Tribunal also finds that Mr Ibrahim was not given any opportunity to obtain a quote for the installation of the solar system on the basis that the satellite dish was dismantled and thereby any overshadowing caused by it was removed.
The Tribunal finds that Mr Ibrahim was not able to understand the documents relating to the supply of the solar system.
The Tribunal also finds that Mr Ibrahim was not advised of the fact that the satellite dish was causing overshadowing and was thus denied the opportunity of obtaining a cheaper system.
In the circumstances, the Tribunal finds that SCE engaged in unconscionable conduct in its dealings with Mr Ibrahim.
[11]
Unsolicited consumer agreement
Section 69 of the ACL provides:
69 Meaning of unsolicited consumer agreement
(1) An agreement is an unsolicited consumer agreement if:
(a) it is for the supply, in trade or commerce, of goods or services to a consumer; and
(b) it is made as a result of negotiations between a dealer and the consumer:
(i) in each other's presence at a place other than the business or trade premises of the supplier of the goods or services; or
(ii) by telephone;
whether or not they are the only negotiations that precede the making of the agreement; and
(c) the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and
(d) the total price paid or payable by the consumer under the agreement:
(i) is not ascertainable at the time the agreement is made; or
(ii) if it is ascertainable at that time--is more than $100 or such other amount prescribed by the regulations.
(1A) The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:
(a) given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or
(b) contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.
(2) An invitation merely to quote a price for a supply is not taken, for the purposes of subsection (1)(c), to be an invitation to enter into negotiations for a supply.
(3) An agreement is also an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are unsolicited consumer agreements.
(4) However, despite subsections (1) and (3), an agreement is not an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are not unsolicited consumer agreements.
Although after the initial contact was made by Mr Verma, there is some divergence as to who made the contact to visit Mr Ibrahim's home on 12 March 2016, the Tribunal finds that the supply agreement made with SCE and the Residential Power Purchase Agreement made with Habitat, both on 12 March 2016, are unsolicited consumer agreements.
Mr Ibrahim states that someone from SCE contacted him on his mobile phone to make the appointment for 12 March 2016. Mr de Martin states that it was Mr Ibrahim's wife who made the call to him. It matters little as section 69 (2) of the ACL makes it clear that an invitation merely to quote a price for a supply is not to be taken as an invitation to enter into negotiations for a supply for the purposes of subsection (1) (c).
The Tribunal finds that the agreements with SCE and with Habitat were made as a result of negotiations between a dealer (being SCE) and Mr Ibrahim, being the consumer, at Mr Ibrahim's home. The Tribunal finds that the contact made to arrange the meeting at Mr Ibrahim's home on 12 March 2016 was an invitation merely to quote a price for the supply of solar panels, not an invitation to enter into negotiations for the supply. This finding is supported by Mr de Martin's statement on page 3 of his bundle of documents that the initial contact by Mr Verma was to ascertain if the applicant was interested in having a consultant discuss the structure of the solar energy system.
Furthermore, the warning on the reverse page of the supply agreement alerting the consumer to a right to cancel the agreement within 10 business days supports the Tribunal's finding that the agreements were unsolicited consumer agreements.
Section 70 (1) of the ACL provides:
70 Presumption that agreements are unsolicited consumer agreements
(1) In a proceeding relating to a contravention or possible contravention of this Division (other than a criminal proceeding), an agreement is presumed to be an unsolicited consumer agreement if:
(a) a party to the proceeding alleges that the agreement is an unsolicited consumer agreement; and
(b) no other party to the proceeding proves that the agreement is not an unsolicited consumer agreement.
In the applicant's bundle of documents, the applicant makes it clear that a claim would be made that the agreements were unsolicited consumer agreements. Neither SCE nor Habitat have taken issue with the applicant's claim. Accordingly, even if the finding made by the Tribunal that the agreements were unsolicited consumer agreements was incorrect, section 70 (1) of the ACL presumes that the agreement is an unsolicited consumer agreement.
Section 71 of the ACL provides that:
71 Meaning of dealer
A dealer is a person who, in trade or commerce:
(a) enters into negotiations with a consumer with a view to making an agreement for the supply of goods or services to the consumer; or
(b) calls on, or telephones, a consumer for the purpose of entering into such negotiations;
whether or not that person is, or is to be, the supplier of the goods or services.
By definition, SCE is a dealer for the purposes of Part 3, Division 2 of the ACL.
Section 76 of the ACL provides:
76 Informing person of termination period etc.
A dealer must not make an unsolicited consumer agreement with a person unless:
(a) before the agreement is made, the person is given information as to the following:
(i) the person's right to terminate the agreement during the termination period;
(ii) the way in which the person may exercise that right;
(iii) such other matters as are prescribed by the regulations; and
(b) if the agreement is made in the presence of both the dealer and the person--the person is given the information in writing; and
(c) if the agreement is made by telephone--the person is given the information by telephone, and is subsequently given the information in writing; and
(d) the form in which, and the way in which, the person is given the information complies with any other requirements prescribed by the regulations.
Note: A pecuniary penalty may be imposed for a contravention of this section.
Section 76 has not been complied with in respect of either the supply agreement with SCE or either version of the Habitat agreement. There is no evidence that SCE on its own behalf or on behalf of Habitat provided Mr Ibrahim with information concerning his entitlement to terminate the agreement during the termination period and the way in which Mr Ibrahim may have exercised that right. The information should have been provided in writing.
Regulation 84 of the Competition and Consumer Regulations 2010 provides:
COMPETITION AND CONSUMER REGULATIONS 2010 - REG 84
Form and way of giving information about termination period
For paragraph 76(d) of the Australian Consumer Law, information given in writing must be:
(a) attached to the agreement or agreement document for the supply of goods or services; and
(b) transparent; and
(c) in text that is the most prominent text in the document, other than the text setting out the dealer's or supplier's name or logo.
None of the agreements signed on 12 March 2016 or on 10 July 2016 satisfy the requirements of regulation 84. Information about the termination period was not attached to any of the agreement documents.
Section 79 of the ACL provides:
79 Requirements for all unsolicited consumer agreements etc.
The supplier under an unsolicited consumer agreement must ensure that the agreement, or (if the agreement was negotiated by telephone) the agreement document, complies with the following requirements:
(a) it must set out in full all the terms of the agreement, including:
(i) the total consideration to be paid or provided by the consumer under the agreement or, if the total consideration is not ascertainable at the time the agreement is made, the way in which it is to be calculated; and
(ii) any postal or delivery charges to be paid by the consumer;
(b) its front page must include a notice that:
(i) conspicuously and prominently informs the consumer of the consumer's right to terminate the agreement; and
(ii) conspicuously and prominently sets out any other information prescribed by the regulations; and
(iii) complies with any other requirements prescribed by the regulations;
(c) it must be accompanied by a notice that:
(i) may be used by the consumer to terminate the agreement; and
(ii) complies with any requirements prescribed by the regulations;
(d) it must conspicuously and prominently set out in full:
(i) the supplier's name; and
(ii) if the supplier has an ABN--the supplier's ABN; and
(iii) if the supplier does not have an ABN but has an ACN--the supplier's ACN; and
(iv) the supplier's business address (not being a post box) or, if the supplier does not have a business address, the supplier's residential address; and
(v) if the supplier has an email address--the supplier's email address; and
(vi) if the supplier has a fax number--the supplier's fax number;
(e) it must be printed clearly or typewritten (apart from any amendments to the printed or typewritten form, which may be handwritten);
(f) it must be transparent.
Note: A pecuniary penalty may be imposed for a contravention of this section.
None of the agreements signed on 12 March 2016 or on 10 July 2016 satisfy the requirements of section 79(b)(ii) or section 79(b)(iii). The requirements of 79(b)(ii) and section 79(b)(iii) are set out in regulations 85 and regulation 86 which provide:
COMPETITION AND CONSUMER REGULATIONS 2010 - REG 85
Information for front page of agreement or agreement document
For subparagraph 79(b)(ii) of the Australian Consumer Law, the following information is prescribed:
(a) the text 'Important Notice to the Consumer';
(b) the text 'You have a right to cancel this agreement within 10 business days from and including the day after you signed or received this agreement';
(c) the text 'Details about your additional rights to cancel this agreement are set out in the information attached to this agreement'.
COMPETITION AND CONSUMER REGULATIONS 2010 - REG 86
Requirements for front page of agreement
For subparagraph 79(b)(iii) of the Australian Consumer Law, the following requirements are prescribed:
(a) the front page of the agreement must be signed by the consumer;
(b) the front page of the agreement must include the day on which the consumer signed the document.
The fine print in relation to the applicant's entitlement to terminate the SCE supply agreement which appeared towards the bottom of the page on the reverse side of the supply agreement does not satisfy the requirements of section 79 and regulations 85 and 86.
Section 82 of the ACL relevantly provides:
82 Terminating an unsolicited consumer agreement during the termination period
(1) The consumer under an unsolicited consumer agreement may, during the period provided under subsection (3), terminate the agreement by indicating, in an oral or written notice to the supplier under the agreement, an intention to terminate the agreement.
(2) A right of termination under this section may be exercised:
(a) despite affirmation of the agreement by the consumer; and
(b) even though the agreement has been fully executed.
(3) The period during which the consumer may terminate the agreement is whichever of the following periods is the longest:
…
(d) if one or more of the following were contravened in relation to the agreement:
(i) section 76 (informing consumer of termination period);
(ii) a provision of Subdivision C (requirements for unsolicited consumer agreements);
(iii) section 86 (prohibition on supplies for 10 business days);
the period of 6 months starting at the start of the first day after the day on which the agreement was made or, if the agreement was negotiated by telephone, the agreement document was given;
(e) such other period as the agreement provides.
…
Section 82 (2) provides that the right of termination is not affected by an affirmation of the agreement by the consumer. The Tribunal finds that Habitat agreement dated 10 July 2016 was a variation of the 12 March 2016 Habitat agreement instigated, on the evidence of Mr de Martin, to correct a miscalculation of costings which applied in the March 2016 Habitat agreement. If the execution of the variation agreement is to be construed as an affirmation of the March 2016 agreement, then subsection 2 preserved the applicant's entitlement to terminate the July 2016 agreement which had replaced the March 2016 agreement.
Furthermore, the execution of the July 2016 contract occurred within 6 months of the execution of the March 2016 contract. There is no evidence that Mr Ibrahim was given any information about his rights to terminate the March 2016 contract when he was invited to sign the July 2016 contract. The Tribunal finds that this failure to bring to Mr Ibrahim's attention his entitlement to terminate the March 2016 contract was misleading and deceptive. SCE had a duty to disclose to Mr Ibrahim his entitlement to terminate the March 2016 contract and the silence of SCE and Mr McCarthy to bring that entitlement to Mr Ibrahim's attention in July 2016 was misleading and deceptive.
Section 93 of the ACL provides:
93 Effect of contravening this Division
(1) The supplier under an unsolicited consumer agreement cannot enforce the agreement against the consumer under the agreement if a provision of this Division (other than section 85) has been contravened in relation to the agreement.
(2) This section does not prevent any action being taken under this Schedule in relation to the contravention.
Whilst Mr Ibrahim's entitlement to terminate the contract with Habitat has lapsed as it was not exercised within 6 months of March 2016, the failure of SCE to comply with section 79 and regulations 85 and 86 has had the effect of rendering Habitat unable to enforce the agreement against Mr Ibrahim.
In Blue Bella Pty Limited v Jackson [2016] NSWCATAP 62, the Appeal Panel said at paragraphs [15] to [27]:
15. Division 2 of Part 3.2 of the ACL (NSW) sets out the legislative regime for the regulation and operation and effect of unsolicited consumer agreements. At the centre of the regime is the definition of an "unsolicited consumer agreement" which is contained in s 69 of the ACL (NSW). Section 69 provides as follows:
69 Meaning of unsolicited consumer agreement
(1) An agreement is an unsolicited consumer agreement if:
(a) it is for the supply, in trade or commerce, of goods or services to a consumer; and
(b) it is made as a result of negotiations between a dealer and the consumer:
(i) in each other's presence at a place other than the business or trade premises of the supplier of the goods or services; or
(ii) by telephone;
whether or not they are the only negotiations that precede the making of the agreement; and
(c) the consumer did not invite the dealer to come to that place, or to make a telephone call, for the purposes of entering into negotiations relating to the supply of those goods or services (whether or not the consumer made such an invitation in relation to a different supply); and
(d) the total price paid or payable by the consumer under the agreement:
(i) is not ascertainable at the time the agreement is made; or
(ii) if it is ascertainable at that time--is more than $100 or such other amount prescribed by the regulations.
(1A) The consumer is not taken, for the purposes of subsection (1)(c), to have invited the dealer to come to that place, or to make a telephone call, merely because the consumer has:
(a) given his or her name or contact details other than for the predominant purpose of entering into negotiations relating to the supply of the goods or services referred to in subsection (1)(c); or
(b) contacted the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer.
(2) An invitation merely to quote a price for a supply is not taken, for the purposes of subsection (1)(c), to be an invitation to enter into negotiations for a supply.
(3) An agreement is also an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are unsolicited consumer agreements.
(4) However, despite subsections (1) and (3), an agreement is not an unsolicited consumer agreement if it is an agreement of a kind that the regulations provide are not unsolicited consumer agreements.
16. There are no regulations under the Competition and Consumer Regulations 2010 that currently prescribe certain kinds of agreements as unsolicited consumer agreements under s 69(3).
17 However, reg 81(1) excludes certain agreements from being an unsolicited consumer agreement and provides:
(1) For subsection 69(4) of the Australian Consumer Law, the following kinds of agreement are not unsolicited consumer agreements:
(a) a business contract;
(b) a discontinued negotiations agreement;
(c) an agreement made in the course of a party plan event;
(d) a renewable agreement of the same kind;
(e) a subsequent agreement of the same kind.
18. None of these exclusions are relevant to the present case.
19. Section 70 provides that in proceedings relating to a contravention or possible contravention of Division 2 an agreement is presumed to be an unsolicited consumer agreement if a party to the proceedings alleges the agreement is unsolicited and no other party to the proceeding proves that the agreement is not unsolicited. In other words, once an allegation is made that a consumer agreement was unsolicited, the onus is on the dealer to prove otherwise.
20. For there to be an unsolicited consumer agreement under Division 2, all of the matters referred to in s 69(1) must be satisfied or the agreement must be prescribed as such under the Regulations (s 69(3)). To rebut the presumption in s 70, the dealer must therefore establish that at least one of the provisions in s 69(1) is not satisfied or that the agreement is of a kind that falls within reg 81 of the Regulations. The provisions are unusual because the consumer does not need to prove any of the matters in s 69 to establish a contravention under the Division. All the consumer must do to enliven the operation of the presumption is to make the allegation of contravention.
21. This reversed onus may seem harsh but discloses a strong legislative intention to impose strict consumer protections in respect of consumer contracts which are alleged to be unsolicited. The rationale for the presumption in s 70 is set out in the Explanatory Memorandum for the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) (the Explanatory Memorandum) at [854 −856] as follows:
854. The rebuttable presumption operates if a party to the proceeding alleged that the (proposed) agreement is one to which the unsolicited selling provisions apply, and no other party to the proceedings proves that this is not the case.
855. The effect of the presumption is that, once the issue has been raised by a claimant in proceedings (a consumer or an enforcer), the respondent must show, on the balance of probabilities, that the agreement is not an unsolicited consumer agreement (or would not be one if it were made).
856. Questions about whether an agreement falls within the scope of the unsolicited selling provisions, which are likely to focus on the issue of solicitation, may be the subject of potential dispute between the parties to a proceeding. This will place claimants at a significant disadvantage should they be required to prove that this is the case. The rebuttable presumption has been included to ensure that the potential for a successful action by a claimant under this provision is not impeded.
22. If a consumer agreement is unsolicited within the meaning of s 69, the provisions set out in ss 73 to 95 of the ACL (NSW) apply. A number of the consumer protection requirements set out in these provisions are civil penalty provisions, which emphasises the seriousness with which the legislature views the regulation of unsolicited consumer agreements.
23. The policy behind the legislation is referred to in the report of the Law and Bills Digest Section for Parliament dated 22 June 2010 on the introduction of the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (at pp 22 - 24). The report noted the on-going problem of in-home selling and the concern expressed by consumer advocacy groups about "high pressure selling techniques" and the "vulnerability of some consumers to the marketing techniques of in-home traders". Interestingly, the definition of an unsolicited consumer agreement in s 69(1), which focuses on negotiations either over the telephone or "at a place other than the business or trade premises of the supplier", extends beyond in-home sales and negotiations. The scope of the regulatory reach of Division 2 and the meaning of the phrase "at a place other than the business or trade premises of the supplier", is at the core of this appeal.
24. Division 2 contains provisions relating to the negotiation of unsolicited contracts at ss 73 to 76. Section 76 provides that a dealer must not make an unsolicited consumer agreement unless the person is given information about their rights to terminate the agreement before the agreement is made.
25. Sections 78 to 81 set out the requirements for unsolicited consumer agreements and include the obligation on dealers to give consumers a written document evidencing the agreement and the requirements of any such agreement. Section 79 provides that the agreement must include a notice that informs the consumer about their right to terminate. The notice must be conspicuous and prominent.
26. Sections 82 to 88 contain provisions dealing with the termination of an unsolicited consumer agreement, including how and when the right to terminate may be exercised, the effect of termination, the obligations on suppliers and consumers on termination, the rights of consumers on termination and certain prohibitions on suppliers during the 10 day cooling off period and after termination. Relevantly, s 82(3)(a) provides that if the agreement was not negotiated by telephone, the consumer may terminate the agreement within 10 days. Section 82(3)(d) provides that if the consumer was not informed of the termination period or the agreement does not satisfy all the requirements set out in ss 78 to 81, the consumer may terminate the agreement within the period of six months after the day the agreement was made. If the contract is terminated in accordance with s 82, the agreement is taken to have been "rescinded by mutual consent" (s 83).
27. In summary, Division 2 sets out the legislative regime governing the supply of goods and services where the consumer has not sought out the supply. It provides rules for when and how dealer may approach consumers and the information they need to provide. Consumers must be given 10 business days as a cooling off period to terminate the agreement and must be given prior notice of this. If the dealer does not comply with these provisions, the termination period is extended to six months. There are also civil penalty consequences for breach of certain provisions."
The Tribunal follows the Appeal Panel's decision in Blue Bella.
Remedies
Section 237 of the ACL provides:
237 Compensation orders etc. on application by an injured person or the regulator
(1) A court may:
(a) on application of a person (the injured person ) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:
(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or
(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a contract that has been declared under section 250 to be an unfair term; or
(b) on the application of the regulator made on behalf of one or more such injured persons;
make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.
Note 1: For applications for an order or orders under this subsection, see section 242.
Note 2: The orders that the court may make include all or any of the orders set out in section 243.
(2) The order must be an order that the court considers will:
(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or
(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.
(3) An application under subsection (1) may be made at any time within 6 years after the day on which:
(a) if subsection (1)(a)(i) applies--the cause of action that relates to the conduct referred to in that subsection accrued; or
(b) if subsection (1)(a)(ii) applies--the declaration referred to in that subsection is made.
Section 243 of the ACL provides:
243 Kinds of orders that may be made
Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent ) include all or any of the following:
(a) an order declaring the whole or any part of a contract made between the respondent and a person (the injured person ) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:
(i) to be void; and
(ii) if the court thinks fit--to have been void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(b) an order:
(i) varying such a contract or arrangement in such manner as is specified in the order; and
(ii) if the court thinks fit--declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);
(c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;
(d) an order directing the respondent to refund money or return property to the injured person;
(e) except if the order is to be made under section 239(1)--an order directing the respondent to pay the injured person the amount of the loss or damage;
(f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person;
(g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person;
(h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:
(i) varies, or has the effect of varying, the first mentioned instrument; or
(ii) terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.
Section 38 of the Civil and Administrative Tribunal Act 2013 relevantly provides:
38 PROCEDURE OF TRIBUNAL GENERALLY
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
[12]
CONCLUSION
The Tribunal has found that both respondents have acted in a misleading and deceptive manner in their dealings with the applicant.
The Tribunal has also found that both respondents have acted in unconscionable manner in their dealings with the applicant.
Furthermore, the Tribunal finds that the respondents each entered into an unsolicited consumer agreement with the applicant and, in so doing, breached the consumer protections contained in the ACL in so far as the Law relates to unsolicited consumer agreements.
Section 243 of the ACL provides a number of remedies which the Tribunal has discretion to apply to the breaches committed by SCE and Habitat.
In Akron Securities Ltd v Iliffe (1997) 41 NSWLR 106, Mason P stated the following in respect of section 87 of the Trade Practices Act 1974 (now section 243 of the ACL):
There is no point in having a remedial smorgasbord if the table is not scanned at least briefly to see what is best on offer. In this, the task of a judge whose findings of detrimental reliance have presented the key to s87 is not unlike that facing a trustee of a discretionary trust who has a power to distribute: cf Lutheran Church of Australia South Australia District Incorporated v Farmers' Co-operative Executors and Trustees Ltd [1970] HCA 12; (1970) 121 CLR 628 at 639, 652.
That there may be a range of arguably appropriate remedies is shown by s87 itself. An order declaring a contract (or arrangement) to be void ab initio is by no means the only remedy available under s87. Without being exhaustive, the court may alternatively choose to declare only part void (s87(2)(a)); select some other date than the date of inception of the contract, provided the date precedes the date of the court order (ibid); vary the contract (s87(2)(b)); refuse to enforce any or all of the provisions of the contract (s87(2)(ba)); order the refund of money (s87(2)(c)); or order payment of the amount of loss or damage (s87(2)(d). The court may visit different orders on different defendants: Heydon v Jackson (1988) ATPR 40-845 at p49,107. "It is therefore important to distinguish clearly between the need to establish the factual circumstances necessary to enliven the power of the court to grant relief and the circumstances which are relevant to the nature of the relief which it is appropriate to grant": Demagogue at 46 per Cooper J. "The words `if it thinks fit' make explicit that, in a case where the court is of the view that a declaration of invalidity should be made, the court possesses a further judicial discretion to decide whether it is appropriate, in the particular case, to declare the time from which the whole or any part of a contract or of a collateral arrangement relating to a contract has been void." Trade Practices Commission v Milreis Pty Ltd (1977) 29 FLR 144 at 168 per Deane J.
Section 237 (1) of the ACL empowers the Tribunal to make such order or orders as is thought appropriate against the person who engaged in conduct, or a person involved in conduct, which has caused a person to suffer loss or damage.
Section 243 (b) of the ACL permits the Tribunal to make an order varying a contract or arrangement.
In respect of the misleading and deceptive and unconscionable conduct committed by the respondents, the Tribunal proposes exercise its discretion and make an order varying the contract between Mr Ibrahim and Habitat, rather than making any declaration that the contract is void.
Although section 93 precludes Habitat from enforcing its agreement with Mr Ibrahim in relation to the breach concerning the unsolicited consumer agreement, the Tribunal is of the view that section 243 (b) empowers the Tribunal to make an order varying the contract in the exercise of its discretion.
Unless Mr Ibrahim makes some payment to Habitat for the solar system installed, Mr Ibrahim would be unjustly enriched.
Section 38 of the Civil and Administrative Tribunal Act 2013 allows the Tribunal to inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
Mr Ibrahim attached 3 website advertisements to his application. Skylight Energy advertised a 5 kW solar system for $3970, fully installed. The Tribunal finds that the price advertised by Skylight Energy is, in the absence of any other evidence, and informing itself on the material before it, a reasonable amount which should be paid by the applicant to Habitat.
The Tribunal varies the contract dated March 2016 and varied by the parties in July 2016 made between Habitat and the applicant by providing that the total amount payable under the contract is $3970.
Mr Ibrahim has paid $1501.67 to Habitat. Deducting that amount from $3970 leaves a balance of $2468.33.
Had Mr Ibrahim purchased the solar unit from another source, he would have had to make the payment for the parts and installation on completion of the installation. Accordingly, it is appropriate that Mr Ibrahim pays the balance of $2460.33 in a lump sum. There will be an order that Mr Ibrahim pays Habitat $2460.33, in full and final satisfaction of all issues between both respondents and Mr Ibrahim, by 21 December 2017.
[13]
ORDERS
The contract made between the applicant and the second respondent, Habitat Energy Systems Pty Ltd on or about 12 March 2017 and as varied on 10 July 2017 is varied to provide that the total cost of the solar system installed at the applicant's property in or about March 2017 is $3970 and no more.
The applicant is to pay the second respondent, Habitat Energy Systems Pty Ltd, $2460.33 (being the balance of the amount payable under order (a) after deducting $1501.67 already paid by the applicant to the second respondent) on or before 21 December 2017.
[14]
Civil and Administrative Tribunal of New South Wales
[15]
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: 23 January 2018
Parties
Applicant/Plaintiff:
Ibrahim
Respondent/Defendant:
SCE Solar City Enterprises Pty Ltd and Habitat Energy Systems Pty Ltd