P & N NSW Pty Ltd t/as Euro Solar v Park

NCAT Appeal Panel|2018-08-13|Before: Dr J

Self-represented, Mrs Park appearing (Respondents) File Number(s): AP 18/25537 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 10 May 2018 Before: G Meadows, Senior Member File Number(s): HB 18/17338

Summary

This is an appeal from a decision the Consumer and Commercial Division of the Tribunal (the Tribunal) of 10 May 2018 (the Decision).
The present respondents (Mr and Mrs Park) retained the present appellant (Euro Solar) to install what the Tribunal described as a "solar heating system" on their premises in 2016. The system included an integrated back up system, or battery. The Tribunal found that Mr and Mrs Park had consistently complained that the backup system did not operate at all or properly.
After conducting the hearing, the Tribunal ordered Euro Solar to pay Mr and Mrs Park the sum of $13,190.00.
Euro Solar appealed from the Decision. It submits that the Tribunal erred in law in reaching the decision it did.
We agree. For the following reasons we have decided to allow the appeal and quash the order of the Tribunal. We also consider that we should conduct a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (the Act). At the conclusion of these reasons we give directions for the new hearing.

Notice of appeal

The Appellants raise six grounds of appeal. All are said to raise questions of law. These are that the Tribunal erred in law by: 1. failing to set out adequate reasons; 2. making findings where there was no evidence; 3. failing to afford procedural fairness; 4. failing to take into account a mandatory consideration, namely s 48MA of the Home Building Act 1989 (NSW); 5. making a decision that was so unreasonable that no decision maker would have made it.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, the Appeal Panel considered the requirements for establishing an "error of law" giving rise to an appeal as of right. At [13] the Appeal Panel set out an non-exhaustive list of errors of law. In our view, each of the grounds relied on by Euro Solar raises a question of law, and leave to appeal is not required: see 80(2)(b) of the Act.
We shall deal with the grounds of appeal below. But before doing so, it is appropriate to we set out the procedural background to the application and a summary of the Decision.

Procedural Background

On 6 December 2016, the Parks lodged application HB 16/53236. They sought the following relief: A. What orders do you want? We are looking for a rethink on the backup battery power box which we paid $8,800 for. It does not work the way they promised it would, and hence it is of no use to us. For this item they did not even give us a warranty, receipt or an instruction manual. B what are your reasons for requesting the orders? On 05/09/2016 Euro Solar came and installed 20 solar panels in one solar box backup battery system at our house [in] Tennyson, NSW, 2754. Total price is $13,100, with the 20 solar panels costing $4300, and the solar box backup battery system costing $8800. However, we seem to get out that the solar box backup battery system did not work the way they promised it would. When they came to our house to install the products, we noticed that they had brought the backup battery system from somewhere other than their store, and that they were just installing the battery system with no clear idea how it would work. Even still, they told us that would work in such a way, it ended up not being true. Hence we are looking for a full refund of $8800. After contacting fair trading about this issue, the trading contacted Euro Solar, and afterwards emailed us saying that Euro solar it said they will contact us to resolve this issue. For more details, please see the attachment. However, Euro Solar did not get back to us, and hence that is the reason why we are using this means.
Attached to the application is a detailed statement of Mrs Park dated 21 October 2016. In that statement, she explains how she calculated the figure of $8,800.00 sought as compensation. She states: . . . After all of this, you suggested we should get the 20 solar panels and one solar box backup battery system at $13,100 .… When you first gave us the quotation, you said that the 20 solar panels were $4300. Since $13,100 - $4300 equals $8800, it follows that the solar box backup battery system was $8800. So I would like you to send the $8800 as a bank cheque to [me] by 28/10/2016.
On 19 January 2017 the matter was listed for conciliation and hearing by the Tribunal. By consent, a work order was made in the following terms: By consent, the Tribunal orders that the respondent: P & N NSW Pty Ltd t/as Euro Solar . . . is to carry out the following work on or before 20-February-2017 in a proper and workmanlike manner. Details of Work order: a. Reconfigure the battery pack so it operates only during blackouts; b. The system is to operate using the grid only if there is no solar energy; c. The battery is to remain full charged on stand-by for blackouts and will become operational when there are blackouts.
The Parks allege that that order was not complied with. On 12 September 2017, they lodged renewal application HB 17/39353. Again, they sought an order that they be paid $8,800.00 compensation. The reasons for seeking that order are stated as follows: . . . On 05/09/2016, Euro Solar came to our house and installed 20 solar panels and a battery back-up system box for $13100. They informed us that these items were best suited for our needs, and convinced us that they were quality items. The solar battery back-up system box did not work from the day it was installed. As a result, we contacted Euro Solar many times, and each time, they would tell us that they would get back to us. However, they never did anything to attempt to resolve this issue. We contacted Fair Trading, and Fair Trading told Euro Solar to contact us in order to resolve this issue. However, Euro Solar did not contact us, and we brought this issue to the NSW Civil & Administrative Tribunal. At the Tribunal, we met with Euro Solar, who promised to make the solar battery system work. Euro Solar came to our house, and 'fixed' the back-up battery system box. There is a screen on the box, which shows the state of the electricity, how much the battery is charging, and if there are any faults with the system. However, after they Euro Solar left, the screen on the box was blank. We called Euro Solar, and they sent an electrician to have a look. The electrician told us that the screen on the back-up box would turn on if we turned off our whole power and then turned it back on. This worked. However, once the electrician left, we encountered the same problem, and the screen would just show blank. It is not practical that we must turn our whole power off, and then turn it back on every time just to make the screen on the back-up box turn on. In addition to this, the back-up battery box emits strange noises after 11pm at night, which is a source of concern for us. We do not know what the noise is, and whether the noise may represent a problem of the box which could be dangerous to us. At this point in time, we contacted Euro Solar again, and they said they would send someone to come have a look if we informed them of the payment method we would utilise for the $250 cost. We do not understand how Euro Solar can install a back-up battery system box without knowing how it works and how to fix any problems that may arise. We do not want to contact Euro Solar anymore. As the back-up box is next to our living room inside the house, it is a source of great concern that the screen does not show. We cannot see if there are any problems with it, or if it may be dangerous for our family in any way, as it is dealing with electricity. We cannot see what situation the back-up box is in, and what the noises coming from the box may represent. Euro Solar made us buy an item that even they don't know the technicalities of. For this item, they provided no warranty, no receipt and no manual book about the battery box system. We do not want any more stress that comes with this dangerous battery box in our house. As a result, we would like a full refund. One and a half weeks ago, we contacted Euro Solar asking for a full refund, but they never responded. (This is the actual text in the application, but we have added paragraph breaks for clarity)
On 9 March 2018, another work order was made. This required Euro Solar to carry out the following works by 11 April 2018: 1 . . . (a) The work required to be done under the work order made on 19 January 2017 in matter HB 16/53236. (b) Rectify all compliance matters raised in the report of John Beazley dated 3 February 2018. (c) Provide the applicants with all necessary paperwork including manual, warranty papers and other papers. 2. The applicants are to permit the workmen engaged by the respondent to access the premises and carry out the work, provided that any request for access shall be made on 48 hours' notice. 3. At the conclusion of the works the respondent will pay for Mr John Beazley of JBEC Installation & Service to inspect the works and provide a report to both the applicants and the respondent. Any issues remaining are to be repaired by another licensed operator to be engaged by the applicants and paid for by the respondent. The application may be renewed if necessary to enable such cost to be recovered 3. The applicant is granted leave to renew these proceedings.
The report of Mr Beazley of 3 February 2018 was obtained by the Parks. It states: At the customers request I have revisited the site at [XXX] repaired works to their solar hybrid system. The LCD screen was operating but it showed that the batteries and the house were being supplied by the grid. It doesn't make any sense to charge your batteries from the grid. Maybe this is just a programming error ? The batteries and the inverter were still installed in the same position in the pantry with the isolation devices being non accessible and the inverter almost touching a sink. There also appeared to be a lack of safety labelling at the inverter /battery system . See rule 7.2.2 in the CEC battery install guidelines . Battery systems and pre-assembled lESS shall not be installed in the following locations . Habitable rooms. See appendix 8 CEC battery install guidelines Section 4 4 AS 5033 lsolators shall be readily available. Section 6 AS 3000 installations in damp situations.
We note that the report refers in the first sentence to reviewing the "repaired works". It states that the LCD screen was operating, and criticizes the location of the batteries and the inverter (being situated in the pantry), and that the isolation devices were not accessible. However, the report does not, either implicitly or explicitly, make any reference to the backup battery not working.
The Parks allege that that work order was not complied with either. On 16 April 2018, they filed renewal proceedings HB 18/17388, the proceedings the subject of this appeal. In their application, the Parks stated: A. Which Orders are you seeking to renew? Euro Solar failed to fix the battery box before 11/04/18 as ordered by the tribunal. Therefore we are asking for a full refund. B. How have the orders not been complied with? Euro Solar failed to fix the battery box before 11/04/18 as ordered by the tribunal. The battery box has been broken for over two years. Also, the tribunal has ordered them to fix the battery box. However, they intentionally failed to make appropriate contact with us in order to stall time as they did not know how to fix the battery box (as many other times in the past). Therefore we are asking for a full refund. C. What orders do you want? Order for the payment of money: $8,800.00. . . . Other orders: As ordered by the tribunal, we have asked three separate experts to come and provide insight into the condition of the battery box in the past. Therefore we are asking for an extra $560 to compensate for the costs associated with having these experts visit our house.
We observe that the Parks stated that they were asking for a "full refund". We understand that it is common ground that the price paid by the Parks for the system was $13,100.00. Nevertheless, the stated claim is for $8,800.00 plus an additional $560.00, a total of $9,360.00.
The matter was subsequently listed for hearing on 10 May 2018.

Oral Reasons for Decision

We note that at the conclusion of the hearing, the Member delivered oral reasons. We will deal with this aspect of the appeal below.

Written Reasons for Decision

After the conclusion of the hearing, the Member published written reasons for his decision.
In summary, the written reasons consist of 14 unnumbered paragraphs, which for convenience we will refer to as paragraphs [1] to [14]. We summarise those paragraphs as follows.
Mr and Mrs Park retained Euro Solar to install a solar heating system in their premises in 2016. As noted, the system included an "integrated backup system", (or battery). The Parks had complained continuously since the works were completed that the backup system did not operate at or properly: par [1];
On 6 December 2016, the Parks lodged application HB 16/53236 seeking a refund of the amount or proportion spent on the backup system: par [2].
On 19 January 2017, a consent work order was made for "the works" to be completed by 20 February 2018: par [3]. Here we note that the order made by the Tribunal was that: By consent, the Tribunal orders that the respondent: P & N NSW Pty Ltd t/as Euro Solar . . . is to carry out the following work on or before 20-February-2017 in a proper and workmanlike manner. Details of Work order: a. Reconfigure the battery pack so it operates only during blackouts; b. The system is to operate using the grid only if there is no solar energy; c. The battery is to remain full charged on stand-by for blackouts and will become operational when there are blackouts.
The Parks allege that that order was not complied with, and lodged a renewal application HB 17/39353 on 12 September 2017. On 9 March 2018, another, work order was made, with the works to be completed by 11 April 2018: par [4].
The Parks again asserted that Euro Solar did not comply with this work order and the matter listed for hearing on 10 May 2018. On that occasion (which is the subject of the Decision appealed from), the respondent asserted that it had made numerous attempts to contact the Parks to arrange access and to complete the works. Euro Solar submitted (at [9]) that it was still ready willing and able to undertake repairs, and that the Parks should be ordered to grant access to it, and that the repairs would be quick and simple.
Paragraphs [5] to [11] deal with these matters, with the Tribunal concluding at [10] and [11] that: 10. I find [that Euro Solar] made no proper attempt to contact the [Parks] and to comply with the Tribunal's orders, on either occasion. [Euro Solar] agreed with the [Parks'] submissions in relation to the change of email address but said this was forgotten or lost in the system. 11. I do not accept [Euro Solar's] submissions. [It] installed the original system so were very well aware of how to find the premises (where the [Parks] still live) and knew the address so they could have sent a letter. They could also have checked the email address (once they knew the email did not work and kept trying on the telephone number, as it was obvious that they still had the correct telephone number.
The Tribunal noted that no evidence had been provided as to why the repairs would be quick and simple to undertake when Euro Solar had previously agreed that it could not repair the backup system: at [12].
The Tribunal then concluded as follows: 12. However I accept [Euro Solar's] claim today that the system [w]as a whole integrated unit and it is not possible to reasonable to attempt to remove or refund only a part of the system, being the backup component. 13. I find the [Parks] have proved their case on the balance of probabilities and an alternative order is now appropriate. I order [Euro Solar] to refund the amount agreed to have been paid by the [Parks] originally, $13190.00.
The fourteenth and final paragraph is not relevant to the Tribunal's reasoning for the Decision.

$13,190 ordered when $8,800 sought

The first, and significant matter, arising on the appeal is the fact that the Tribunal ordered $13,190.00 compensation, in circumstances where only $9,360.00 was sought. This is explained in par [13] in the following terms: [13] I find the applicants have proved their case on the balance of probabilities and an alternative order is now appropriate. I order the respondent to refund the amount agreed to have been paid by the applicants originally, $13,190.00.
As we have noted above, the Parks actually paid $13,100.00, but nothing turns on that. Euro Solar's complaint is that, despite seeking an amount less than the "full refund" of $13,100.00, the Tribunal ordered what the appellant describes as a "full refund". (Here we note that the amount erroneously ordered by the Tribunal was $13,190.00. It was common ground that the figure was $13,100.00).
Euro Solar submits that the Tribunal erred in two respects.
The first aspect is that the solar panels were still operational, generating power and energy and providing a benefit to the Parks at the time of the hearing. Euro Solar submits that the Parks agreed that the Solar System was working. Euro Solar relies on the transcript of the hearing as follows: Member: Listen to me only if there is a black out on the electricity grid, the state power, and you not getting power from the solar panels, only then do you use the back up battery. Mrs Park: Yes Member: Yes and is the problem only with the battery or are there other problems as well. Mrs Park: Um solar is working but… battery pack assistance is not working. Member: Yes. Mrs Park: Not working at all. Member: alright and what you are looking for today is a refund of the cost of the Mrs Park: Yes. Member: battery Mrs Park: Yes. (emphasis added).
The second aspect is that the Tribunal ordered a full refund of $13,190.00 in circumstances where the Parks where only seeking a refund for the value of the battery, calculated by Mrs Park as $8,800.00. Euro Solar appears to be submitting that it was denied procedural fairness in that this issue was not put to it during the hearing and the amount awarded was greater than the subject of the Parks' application. However, we note that Euro Solar was put on notice of the Member's view that, if anything were to be refunded, it would have to be the whole amount, in the following exchange between the Member and Euro Solar's representative Mr Patel: Member: First of all what do you say about the calculation of the price of the battery. Mr Patel: It is incorrect sir because the system currently installed at Mrs Park's premises is completely different to the one she is referring to. It is completely different package. We can't consider the normal system's price and compare it to the battery back up system because there is a whole box involved in there. Its not just a single piece of battery. There is a charge controller, there is a batteries, there is a inverter and a box to cover that. Member: And have you provided evidence of all those costs. Mr Patel: No because it was just you know all in one unit, so we can not differentiate that. Member: Alright if you were to refund anything, you have to refund the whole lot. Mr Patel: Yes sir but what we have done is as member ordered last time that the work should be done as per to the Mr John Beazley's report we have also contacted Mr John Beazley and asked for the quotation to go and fix it by himself so there is no other
It is not necessary for us to decide whether the decision to award the Parks a greater amount than that they had applied for was a breach of procedural fairness, given the conclusion we have come to on other issues.
It is not clear why the Tribunal ordered a "full refund" in circumstances where the evidence before it (namely the oral evidence of Mrs Park) was that the solar system worked, and it was only the backup battery which failed to work. Even here, it is not entirely clear whether the back up battery failed to work, or whether it was a fault in the display panel which showed whether or not the backup battery was working. While there was no express finding about this in the written reasons, we note that the Member stated during the course of the hearing (and arguably as part of his oral reasons), that: The system was fitted in 2016 . . . it includes some solar panels, the necessary electrics and a back up system. Not every such solar panel system will include a back up system but the applicant's wanted one because there are in a rural location apparently and their neighbours have suggested that in the event of a black out they would need a generator instead because they were installing a solar system. They decided to have a battery back up system. It appears that at least since the end of 2016 the system has not been working properly.

Adequacy of Reasons

In short, Euro Solar submits that the reasons were inadequate. We agree.
If, following a hearing, a party requests written reasons, s 62(3) of the Act sets out what must be contained in those reasons. The reasons must include the findings on material questions of fact, the Tribunal's understanding of the applicable law, and the reasoning processes that lead the Tribunal to the conclusions it made.
Section 62(3) is not applicable in the circumstances of this appeal, as no request for written reasons was made. Nevertheless, the Tribunal sitting in the Consumer and Commercial Division has a duty under the common law to give reasons for its decisions: Collins v Urban [2014] NSWCATAP 17 at [48] to [57]; see Hernady v Raccani [2016] NSWCATAP 67 at [37].
In Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, noted the following relevant principles: 1. the giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice; 2. the extent and content of reasons will depend upon the particular case under consideration and the matters in issue; 3. while a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties; 4. the reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments have been understood and accepted; 5. because a primary judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, the process of fact finding miscarries.
In Akkari v Sartor [2015] NSWCATAP 79 at [48] the Appeal Panel noted the observations of Johnson J in Moloney v Collins [2011] NSWSC 628 at [63] to [64], made in the context of a civil hearing in the Local Court. His Honour said: 63. Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration. 64. The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. 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. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
Finally, as the Appeal Panel recently stated in Camilleri v Eastlake [2018] NSWCATAP 176 at [26]: It is correct that a failure to give reasons is an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration: Moloney v Collins [2011] NSWSC 628. The duty does not require a court or tribunal to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. 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 449at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58].
Applying these principles, we do not consider that the Tribunal has stated adequately, if at all, why it allowed a full refund. The reasoning is confined to the single sentence "I find the applicants have proved their case on the balance of probabilities and an alternative order is now appropriate." In our view, this is manifestly inadequate reasoning and the appeal should be allowed.

Oral reasons for decision

Thus far we have only considered the written reasons of the Tribunal. One of the issues arising before us is that, unusually, in addition to the written reasons, oral reasons were also given. There are a number of differences between the Tribunal's written reasons and the oral reasons. In particular, the Member referred to the following matters in his oral reasons, but not in his written reasons: 1. the Parks' calculation being "fairly rough and ready" and "self-evidently a flawed approach"; 2. neither party had provided specific independent expert evidence as to the possibility or removing the battery system and replacing it with another system; 3. that only a "very short period of time" had been allocated to the hearing, and that it was "not easy to make a decision"; and that 4. Euro Solar had also not answered the claims of the Parks that the battery was worth $8,800 by providing details of how to correctly calculate its value, or whether it could be separately removed and reinstalled in some way.
None of these matters were referred to in the later written reasons. In our view, the discrepancies between the written and oral reasons are apt to lead to confusion.
There are limits to the extent to which the Tribunal can amend oral reasons, if that is what the Tribunal was purporting to do: Spencer v Bamber [2012] NSWCA 274. In that case, as Basten JA explained at [4]: The primary judge in the present case adopted the first option of making orders and giving reasons orally at the conclusion of the hearing. As explained by Campbell JA, the orders were sufficient to dispose of the proceedings and the reasons for the orders then made were adequate, but it was open to the primary judge to revise those reasons to correct errors and infelicities of expression. One question now arising is whether it was open to the primary judge to make a further order, so as to validate the order made by the Registrar with respect to substituted service. It appears that the additional order was made in chambers and was not communicated to the parties until the delivery of the revised reasons on 3 November.
Basten JA noted that the ways in which the reasons delivered orally are varied and the principle as to when that course can be taken were comprehensively explained by Campbell JA at [137] to [192]. Amongst other matters, Campbell JA noted that: 1. it is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive: Bar-Mordecai v Rotman [2000] NSWCA 123 at [193], (see [137]). 2. a judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance; (see [137], where Campbell JA refers to the judgment of Bealzley JA in Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463, where her Honour collected the principles about the limits within which a judge can correct the Court Reporting Service's draft of orally delivered reasons for judgment, and referred to remarks of Gleeson CJ writing extra-curially in "Revising Transcripts of Summings-Up" (1997) 9 Judicial Officers' Bulletin 25 at 25); 3. where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke [1989] 19 NSWLR 158 at 170; Todorovic v Moussa at [53], (see [139]); 4. when a judge purports to give reasons at the same time as orders are pronounced, principles of open justice require that the judge's reasons should be taken to be in substance those that he or she is purporting to give at that time. Once the orders are pronounced, a right of appeal, or to seek leave to appeal, arises concerning them, and, subject to one qualification, that right can be given effect to only if the reasons are in substance those that the judge has given at the time of making the orders concerning which the right of appeal or to seek leave to appeal arises (see [141]).
We note that whether a statement of reasons passes from permissible elaboration to impermissible departure will sometimes be a question of degree: Negri v Secretary, Department of Social Services (2016) 156 ALD 240 at [28].
What all these cases considered was the situation where the trial judge adjusts or alters the transcript of their reasons for decision. What happened in was different. Here the written reasons were an additional version of reasons. Such a practice can potentially lead to confusion. We consider that the better practice (at least for the work of the Tribunal in its Consumer and Commercial Division) is, at the conclusion of the hearing, to: 1. make orders and give oral reasons; or 2. make no orders (and therefore give no reasons), with both orders and reasons following later; or 3. at the conclusion of the hearing, make orders only, with written reasons following.
In addition to the error of the Tribunal failing to adequately explain the basis on which it decided to order a "full refund", we also consider that the delivery of oral and written reasons which differed in material aspects was apt to lead to confusion. This is another basis upon which the Tribunal's reasons were inadequate. As the Appeal Panel observed in Moussa Enterprises Pty Ltd v Stanford [2015] NSWCATAP 99 at [32], fundamentally, the reasons, be they oral or written, must do justice to the issues posed by the parties' cases.
In these circumstances, the appeal should be allowed. It is not necessary to consider any of the other grounds of appeal.

Appropriate relief

We turn to the question of the appropriate relief. In its Notice of Appeal, Euro Solar seeks one of the two following orders.
The first is an order that it return to the Parks' premises and carry out the work ordered in order 1 of the Tribunal of 9 March 2018. That order was that Euro Solar undertake the work ordered made on 19 January 2017, namely that Euro Solar reconfigure the battery pack so it operates only during blackouts, such that the system is to operate using the grid only if there is no solar energy with the battery remaining fully charged on stand-by for blackouts and to become operational when there are blackouts.
In the alternative, Euro Solar seeks an order that it attend the Parks' premises within four weeks and replace the back up battery with a new one.
The Parks oppose either course. They say that Euro Solar has had adequate opportunity to remedy the issue. In their submission to the Tribunal of 1 August 2018, they state: The Tribunal has given Euro Solar many chances and a very generous time frame to rectify the problem. Furthermore, we have been extremely patient and cooperative throughout this whole process. Euro Solar's failure to rectify this problem demonstrates their incapability as a company to take seriously, the safety and wellbeing of those being affected by the product. It has been over two years since the installation of the faulty and unsuitable product, and til today remains a faulty and unsuitable product. Euro Solar fails to realise the danger this product can cause by remaining inside a living indoor area for more than two years (Clean Energy Council guidelines). Based on our situation we strongly believe that Euro Solar cannot repair their own product, does not understand the essential workings of their product, and fails to take any responsibility for the ramifications of their products. Euro Solar have failed in their responsibility towards their customer. Right from the beginning they have failed to provide adequate ongoing support to rectify this problem. Thus we have lost complete trust in Euro Solar.
They conclude their submissions by stating: Due to the many dishonest actions that Euro Solar have committed, and by the stress such actions have caused us, we do not want to give Euro Solar another chance, and want to end this now by receiving the full refund of $13,100 from Euro Solar.
In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65, the Appeal Panel allowed an appeal because of the inadequacy of the reasons of the Tribunal. The Appeal Panel then asked itself: How to Proceed to Dispose of the Appeal? The question then becomes: what should be done to ensure the just and expeditious resolution of the real issues in these proceedings? There are at least two options. First, the Appeal Panel can remit the set aside application to be reconsidered by the Consumer and Commercial Division of the Tribunal under s 81(1)(e), with or without further evidence. Alternatively, the Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, under s 80(3) of the Act.
In that case, the Appeal Panel sought the views of the parties. They agreed that the Appeal Panel should proceed by way of a new hearing in accordance with s 80(3).
We raised this possibility with the parties. We noted we could deal with the appeal by way of a new hearing if we considered that the grounds for the appeal warranted a new hearing, and that we could permit fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal to be given in the new hearing as we considered appropriate in the circumstances.
We further noted that there was one piece of evidence before us which was not before the Tribunal. That was a sales order of Luxco Energy Pty Ltd dated 5 June 2018 for a battery for the subject system. The cost of the battery is $5,454.55 plus GST of $545.46, a total of $6,000.01. This leads to the possibility of the Appeal Panel substituting an order that Euro Solar pay the Parks that sum for the Tribunal's order that it pay them $13,190.00.
Both parties opposed the Appeal Panel proceeding by way of rehearing; Euro Solar because it wanted the opportunity to comply with the work orders previously made; the Parks because they wanted a full refund.
We consider that, in order to give effect to the guiding principle set out in s 36 of the Act, being to facilitate the just, quick and cheap resolution of the real issues in the proceedings, it is preferable not to delay the resolution of the proceedings by remitting the appeal to the Tribunal, and for us to proceed by way of a new hearing. In this respect we have all the evidence that was before the Tribunal, and a transcript of the hearing. We also have the fresh evidence to which we have referred.
Having now allowed the appeal, quashed the orders of the Tribunal and decided to hold a new hearing, the appropriate course is to give the parties the opportunity to make submissions on: 1. the orders we should make; and 2. whether the new hearing can be dealt with on the papers (which is our provisional view), or whether a further hearing should be held.

Orders

For the above reasons, we make the following orders. 1. The appeal is allowed. 2. The orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal in matter HB 18/17338 of 10 May 2018 are quashed. 3. The Appeal Panel having decided to conduct a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013, both parties are to file and serve written submissions by 12 September 2018 in relation to the orders the Appeal Panel should make, and whether the new hearing can be held "on the papers" and without the parties attending a further hearing. 4. Each party may respond to the other party's submissions by 26 September 2018 if they wish.

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: 29 August 2018

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (2)

Cases Cited (18)

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