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

NCAT Appeal Panel|2018-10-15|Before: Dr J

Summary

The matter was heard on 13 August 2018. On 29 August 2018, we published our written reasons, P & N NSW Pty Ltd t/as Euro Solar v Park [2018] NSWCATAP 202 (the first appeal decision).
For the reasons there stated, we allowed the appeal, quashed the orders of the Consumer and Commercial Division of the Civil and Administrative Tribunal in matter HB 18/17338 of 10 May 2018, and decided to conduct a new hearing pursuant to s 80(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act).
Both parties were directed 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. Each was given a right of reply to 26 September 2018.
In their submissions, both parties agreed that the matter should be decided on the papers. Accordingly, we direct that a hearing be dispensed with pursuant to s 50(2) of the Act. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions provided to us.
For the following reasons, we have decided to order the appellant (Euro Solar) to pay the respondents (Mr and Mrs Park) $6,000.01. That amount is to be paid within 14 days.

Relevant factual findings

It is common ground that on or about 5 September 2016, the Parks purchased a solar power system and back up battery from Euro Solar for $13,100 and Euro Solar installed the 20 panel system and battery pack at their premises.
The critical issue is whether or not the Parks have established that the solar system, or the back up battery, is not working properly, or at all. We make the following relevant findings.
Given the work orders made by the Tribunal on 19 January 2017, we find that, at that time:

the battery pack operated at all times rather than only during blackouts;
the solar system operated using the grid at all times rather than when there was no solar energy as envisaged;
in addition to the battery pack being operational during blackouts it was operational at other times.

Given the work orders made by the Tribunal on 9 March 2018, we find that, at that time:

the work required to be done under the work order of 19 January 2017 had not been done;
the LCD screen for the solar system was operating but it showed that the batteries and the house were being supplied by the grid, rather than the battery.

As at 10 May 2018, the battery pack was not working at all. We make that finding based on the uncontradicted evidence of Mrs Park at the hearing before the Tribunal that day. Mrs Park said that "the solar is working but [the battery pack is not working", and twice stated that the battery was not working "at all". Mrs Park explained that she was seeking a refund of the cost of the battery.
The evidence before the Tribunal, which we accept, was that since the work order of 9 March 2018, Euro Solar had not attended the Parks' premises to undertake any repairs or to rectify the compliance matters referred to in the report of John Beazley dated 3 February 2018. Accordingly, there is no probative evidence before the Tribunal on 10 May 2018, or before the Appeal Panel, which contradicts Mrs Parks' statements that the battery pack was not working.

Euro Solar's submissions

Euro Solar submits that the Parks' claim should be dismissed, on the basis that they have not satisfied the onus that they are entitled to the $8,800 they seek. In particular, Euro Solar relies on par [45] of the primary decision, in which we referred to the Tribunal's finding that the Parks' calculation in coming to the figure of $8,800 was "fairly rough and ready" and "self-evidently a flawed approach".
This submission overlooks the additional evidence that Euro Solar relies on in its appeal. That is the document we marked as "Q", being the sales order of Luxco Energy Pty Ltd dated 5 June 2018 in the sum of $6,000.01 (referred to in par [61] of the first appeal decision).
In the alternative to its primary submission that the Parks' claim be dismissed, Euro Solar submits that it be granted access to the Parks' premises so that it can carry out the works the Tribunal ordered in January 2017 and again in March 2018. In this respect, it relies on s 48MA of the Home Building Act 1989 (NSW) (Home Building Act). In addition, Euro Solar notes the Parks' "change of heart", in now wanting it to attend their premises to remove the back up battery, a matter not sought in their application, in circumstances where at the appeal hearing the Parks were opposing Euro Solar returning to their property. Accordingly, Euro Solar submits that it be allowed to return to the property to carry out the previous work orders, to rectify the compliance matters raised in Mr Beazley's report of 3 February 2018, and to provide all "paper work" (being a "manual, warranty and other papers") to the Parks.
In the further alternative to these orders, Euro Solar submits that it be ordered to engage a third party, Luxco Energy Pty Ltd, to attend the Parks' premises and to carry out the work the subject of the March work order of the Tribunal.

Mr and Mrs Park's submissions

The Parks do not want to attend another hearing. They simply ask that the Appeal Panel order a refund of $8,800 for the back up battery which they say has been faulty for two years. In addition, they ask that Euro Solar be ordered to remove the back up battery. In doing so, they ask that Euro Solar ensure that the 20 panels solar system is working correctly.

Reply submissions

Neither party filed submissions in response to the other party's submissions.

Consideration

This matter has had a long history. The guiding principle of the Act (namely the just, quick and cheap resolution of the real issues in the proceedings: s 36(1)), requires that we make appropriate orders for the final resolution of this matter.
Given our finding that the battery pack does not work, we decline to dismiss the Parks' application. Nor do we consider that it is appropriate to again order Euro Solar, or some other person, to attend the Parks' premises to repair the battery. Euro Solar had ample opportunity to do so, and indeed was ordered to do so by the Tribunal on 9 March 2018, but failed to do so.
As to s 48MA of the Home Building Act, that section requires us to have regard to the principle that that rectification of the defective work by the appellants was the preferred outcome. Section 48MA does not make the preferred outcome the mandatory outcome: Galdona v Peacock [2017] NSWCATAP 64 at [65]. A similar conclusion was reached in Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23, where the Appeal Panel set out the relevant principles relating to s 48MA. These were paraphrased by the Appeal Panel in Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 at [17] to [21].
Given the attitude of the Parks to Euro Solar attending their premises again, and Euro Solar's non-compliance with a previous work order of the Tribunal, we decline to make any order as suggested by Euro Solar that it or another company attend the Parks' premises.
We consider therefore that the appropriate final disposition of the Parks' application should be that the Parks be compensated for the cost of replacement of the battery. The evidence is that the costs of new battery is $6,000.01.
We decline to make any other order sought by the Parks. We do not think that it is appropriate to order Euro Solar to return to their property to either remove the battery or to ensure that the solar system is working correctly as part of this application.

Orders

For the above reasons, we make the following orders. 1. A hearing be dispensed with. 2. The appellant to pay the respondent the sum of $6,000.01 on or before 29 October 2018.

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: 15 October 2018

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