This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) dated 18 November 2022 (Decision). The Tribunal dismissed the appellant's claim on the basis it had no jurisdiction to determine the application.
For the following reasons, we have decided that the appeal should be allowed and the matter re-determined by the Tribunal.
[2]
Background
It is appropriate to set out the procedural history leading to the Decision.
On 17 February 2021 the appellant filed application HB 21/07293. He sought an order that the respondent pay him $30,000 because:
We have lost all confidence that captain green solar would repair our solar system. the sum we request is to cover the lost energy production, the cost of replacing our solar system and damage to our roof which was in as new condition. also the stress and emotional suffering perpertrated by their deceptive behaviour cannot be measured.
The appellant summarised the "Dispute Details" as follows:
We discovered that our solar system had failed after an unusually high energy bill. (We were expecting a credit for the period in question).
We obtained an inspection report which was forwarded to captain green solar on the 18th of June 2020.
[T]hey agreed that the faults specified were covered by warranty and that they would have the system repaired and functioning as soon as possible.
After numerous assurances and several failed attempts by electrical contractors. our solar system has remained inoperative. We now have additional damage to our roof caused by crimping of some of the colorbond panels.
We have not calculated the cost as yet, but it is substantial both financially and emotionally.
Leone v Captain Green Solar Pty Ltd [2022] NSWCATAP 78 | Case summary | Zoe
On 23 April 2021 the matter was first listed for directions and conciliation. The matter did not resolve and the Tribunal made the usual orders for the filing and service of evidence, and adjourned the matter for a hearing. The Tribunal noted that:
The applicant seeks compensation from the respondent. He will need to prove on the balance of probabilities that there are problems with the panels, or otherwise with the solar system supplied by the respondent and still under warranty.
The matter was listed for hearing on 24 June 2021. The hearing was adjourned, but the Tribunal ordered the respondent to carry out the following work on or before 22 July 2021:
To arrange for a suitably qualified technician to attend the applicant's premises and to test every single solar panel and to arrange for the replacement of any faulty panels. The respondent is then to have the complete installation tested to ascertain if it is working correctly. If the installation is still not working correctly the respondent is to conduct further testing to determine any further fault or faults.
In addition, the Tribunal made the following directions:
3. The respondent is to provide to the applicant and the Tribunal, no later than 29-Jul-2021 a report detailing the results of the above testing process and whether the installation is now working correctly. The report is to identify each panel by position and to provide the results of the testing process for each panel separately.
4. The proceedings will be adjourned for further directions after 29-Jul-2021.
5. The applicant is to provide particulars of any compensation claimed and the evidence for such compensation including how any amount of compensation claimed is calculated, to the Tribunal and the respondent, no later than 22-Jul-2021.
6. The respondent is to provide any evidence in reply to the compensation claim to the applicant and the Tribunal no later than 29-Jul-2021.
The matter returned to the Tribunal on 13 September 2021. The matter was again adjourned for a hearing, with directions being given for the filing of evidence. In its directions of 13 September 2021 the Tribunal noted:
The respondent has complied with the previous order to inspect and report on the solar panels. All panels were found to be working.
The parties agree that it appears the inverter is not working and needs replacing.
The applicant submits that other items are not satisfactory, including the electrical wiring and the conduits. The applicant also submits that the current installation does not comply with Australian standards and needs to obtain evidence to that effect.
The parties have agreed that the final decision should be determined on the papers.
[3]
The Decision
On 18 November 2021 the Tribunal published its reasons for decision. After reciting s 48K(7) (Jurisdiction of Tribunal in relation to building claims) of the Home Building Act 1989 (NSW) (HB Act), and s 18E (Proceedings for breach of warranty) the Tribunal stated:
As recorded on the documents signed off by the previous owner of the house, provided by the respondent, the installation was completed on 20 May 2013. The application is therefore out of time.
I have considered whether the applicant may nevertheless have a consumer claim which could be considered by the Tribunal under the Fair Trading Act 1987. However, as the applicant is a successor in title and not the person to whom the goods were supplied, the claim is not a consumer claim. (See Fair Trading Act 1987 section 79E.)
The Tribunal has no jurisdiction under the Act or otherwise to hear and determine the claim, and it follows that the application is dismissed.
[4]
Notice of Appeal
In his Notice of Appeal the appellant stated his grounds of appeal as follows:
Fair Trading accepted our complaint application, 4-Dec-2020. This application clearly states that we purchased the property after the solar system had been installed and paid for by the previous owner.
In 2019, Captain Green arranged to replace 3 safety isolators which had tripped out from water ingress. This was carried out under warranty.
Evidence submitted shows that Captain Green procured 8 replacement solar panels and installed 7 of these on the 16-Dec-2020. At this time considerable damage was inflicted on our roof in areas around the solar panels.
At the first hearing I was asked to provide evidence that there were still problems with the system. This was provided at the second hearing. At this hearing orders were made to the respondent to which they mostly complied with. At no time has Captain Green Solar rejected their stated intention to honor their 10 year warranty.
At the third hearing, the Tribunal asked that I supply further evidence to substantiate the extend of the problems with the solar system. To which I complied. The evidence from this last report totally discredited Captain Green's position.
The precedence has been set. To state that the tribunal has no jurisdiction in this case seems to be highly inconsistent with the previous hearings and the approach from The Department of Fair Trading.
In the Notice of Appeal the appellant also indicates that he is applying for leave to appeal as the Decision was not fair and equitable
[5]
Reply to Appeal
Nothing of substance appears in the respondent's Reply to Appeal, which simply recites the Decision.
[6]
Nature of an appeal
Section 80 of the Civil and Administrative Tribunal Act 2014 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal arise. 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)).
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel considered the requirements which give rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law:
1. Whether there has been a failure to provide proper reasons;
2. Whether the Tribunal identified the wrong issue or asked the wrong question;
3. Whether a wrong principle of law has been applied;
4. Whether there was a failure to afford procedural fairness;
5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration;
6. Whether the Tribunal took into account an irrelevant consideration;
7. Whether there was no evidence to support a finding of fact;
8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
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 and, as we discuss below, we have identified questions of law, namely that the reasons for decision were inadequate and that that there was a procedural unfairness in the way in which the Tribunal went about its work.
[7]
Consideration
We will address procedural unfairness first. Both Mr Leone and Mr Vallance told us that they thought that the Tribunal was going to determine the whole of the appellant's claim on the papers. The appellant said that the whole of his claim that was before the Tribunal appeared in his bundle of appeal materials titled "Particulars of compensation claimed" and consisted of the following items:
Energy Australia bills, $5,712.87;
Elgas bills, $905.72;
TTG Electrical Solar System reports, $260
Compensation for damage to the roof, |"difficult so estimate, say $5,000;
Solar Service Guys $993.00; and
Quotation for Solar System Replacement, $13,472.88.
being a total of $26,344.47. (We note that a smaller amount was actually claimed at the Tribunal hearing, and that the appellant had updated the claims for the appeal to include electricity bills received after the Decision.)
However, the orders of 13 September 2021 noted that the parties agreed that the inverter was not working and needed replacing, that the appellant had submitted that "other items" were not satisfactory, including the electrical wiring and the conduits, and that the installation did not comply with Australian Standards.
The result is that it is unclear to the Appeal Panel what it was the Tribunal was determining on the papers, and we consider that there may have been a lack of procedural fairness to both parties.
Be that as it may, the reasons for decision, which are set out above, fail to conform with the Tribunal's minimum obligations to give reasons for decision. As the Appeal Panel stated in Morris v Webb [2022] NSWCATAP 54:
16. Tribunals are required to provide a minimum acceptable standard of reasons.
17. That minimum acceptable standard will vary from case to case, but generally speaking a Tribunal is required, in its reasons, to describe any conflicting evidence of a significant nature, consider any documentary material arguably supporting a party's case in a satisfactory way and avoid using bald conclusionary statements - see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA, with whom Ipp JA and Bryson AJA agreed, at [62]-[64].
18. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 Leeming JA, with whom Payne JA and Simpson AJA agreed, said at [18]:
"It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn."
Whether considered in the context of the NCAT Act or in the context of the common law obligation to provide reasons, in our opinion the reasons given by the Tribunal in this matter were not adequate. They do not refer to any relevant material findings of fact and do not adequately expound the reasoning process by which the Tribunal reached its conclusions on questions of fact or law and how those conclusions applied to the appellant's items of claim as identified at [18].
We accept that the extent and content of the reasons required will depend upon the particular case and the issues under consideration, and that that duty does not require the trial Judge (here the Tribunal) to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence, and it is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41.
But the only fact found by the Tribunal was that the installation was completed on 20 May 2013. As we have noted, the issues before the Tribunal appear to have been broader than the simple installation of the solar system.
For the above reasons, the appeal must be allowed.
In the circumstances, it is not necessary to consider the appellant's application for leave to appeal on the grounds that the decision was not fair and equitable.
[8]
Matter to be reconsidered by Tribunal
The next question to determine is the appropriate next step. Section 81 of the NCAT Act provides:
81 Determination of internal appeals
(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following -
(a) the appeal to be allowed or dismissed,
(b) the decision under appeal to be confirmed, affirmed or varied,
(c) the decision under appeal to be quashed or set aside,
(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.
We have noted above that it was not clear what was the ambit of the claim that was to be determined by the Tribunal. In those circumstances, it is not appropriate for the Appeal Panel to exercise its powers under s 81(2) of the NCAT Act, and the matter must be remitted to the Tribunal for reconsideration. Given that the Tribunal made directions for the filing of evidence on 23 April, 24 June and 13 September 2021 and the parties complied with those directions, we consider that the reconsideration of the application should be without further evidence.
[9]
Other
There is one other matter to note. During the appeal hearing the appellant asked us to refer the matter to the Supreme Court of NSW. The power to do so appears in s 54(1) of the NCAT Act. Any referral requires the consent of the President of the Tribunal: NCAT Act, s 54(2).
The application was made on the basis that we did not make a decision in the appellant's favour. The appellant did not appear to be aware that he had a right of appeal to the Supreme Court on a question of law in respect of any decision we might make.
It was not appropriate to make any order of referral on the basis of what we had been told and we declined to do so.
[10]
Orders
For the following reasons, the Appeal Panel orders:
1. Appeal allowed.
2. The order of the Tribunal made on 18 November 2021 in matter HB 21/07293 is set aside.
3. The matter is remitted to the Tribunal for reconsideration without further evidence.
[11]
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 March 2022