P&N NSW Pty Ltd v Milovic [2019] NSWCATAP 201 | Case summary

Notice of Appeal and submissions

The appellant filed a Notice of Appeal on 4 April 2019.
Although it had not received the Written Reasons at this time, the appellant did so in order to make an application for a stay of the orders, particularly the order that it remove the system from the respondent's premises. There is an issue in these proceedings as to whether the Notice of Appeal was filed late, that is more than 28 days after 5 March 2019 or whether the appeal was filed in time because the Written Reasons were not received until 5 April 2019 the later date being the time to appeal commences to run.
Depending on the proper construction of r 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules), an extension of time of two days may have been required.
Submissions were made at the hearing of the appeal on 13 June 2019 concerning whether an extension of time is required. In this regard, the Amended Notice of Appeal which had been filed with leave did not seek an extension of time although an application was made orally at the hearing seeking such an extension and leave to further amend the Notice of Appeal to include such a request.
The Notice of Appeal raised a number of grounds. These include 1. that the Written Reasons are different to the Oral Reasons and that the Tribunal made changes to the Oral Reasons which were not permissible; 2. that the reasons are inadequate; 3. that there was no relevant evidence to prove the inadequacy of the system or quantum of the respondent's claim.
The grounds of appeal were all asserted to raise questions of law. Leave to appeal is not required if a question of law is raised: s 80(2)(b) of the NCAT Act. Leave to appeal was not expressly sought to raise grounds other than questions of law. However, one of the grounds of appeal was that the decision was not fair and equitable.
Directions were made and the parties filed written submissions in support of their respective positions. The parties also provided oral submissions at the hearing of the appeal. At the hearing, the appellant appeared by its solicitor, Mr Seomangal and the respondent appeared by telephone.
For the purpose of the appeal, the parties were directed to file relevant evidence from the proceedings at first instance. This occurred.
In addition, both parties filed new evidence in the appeal.
In respect of the appellant's documents, new evidence is found in Part A of the appellant's bundle being attachments 8, 9, 10 and 11. It is clear from the date of these documents that they were reasonably available to the appellant and could have been provided in the proceedings at first instance. Leave to appeal and rely on new evidence has not been sought. Consequently, leave to rely on these documents should not be granted: see Sch 4 cl 12(1)(c) of the NCAT Act and Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] and following. This evidence is therefore rejected.
Similarly, the respondent sought to rely on new documents contained in his bundle, particularly documents tabbed 17 and 18. These documents were said to show the different electricity output, measured in kilowatts per hour, said to be generated from panels placed on the southern area of the roof to those placed on the east section of the roof. Again, these documents should not be permitted on the appeal as they were reasonably available at the time the original proceedings were heard.
A transcript of the sound recording of the hearing at first instance was also provided. In part, this was relevant because of the assertion that the Oral Reasons given at the hearing or different to the Written Reasons.
However, during the course of the hearing of the appeal, it became apparent that any differences between the Oral Reasons and the Written Reasons were irrelevant to the disposition of this appeal. This was because the differences identified concerned a claim by the respondent for the cost of repainting the roof his premises, for which no positive award was made in favour of the respondent, and a dispute concerning the need to account for any economic benefit derived by the respondent because the system had been connected to the electricity grid resulting in reduced electricity charges.
In respect of the claim for painting, the Tribunal appears to have accepted oral evidence from the respondent that the cost would be $500 (although no quotations or other documents were provided to support this claim). However, no positive money award was made. Rather, the Tribunal offset against this claim an allowance for $500 for savings on electricity charges because the system was connected to the electricity grid. It did so although no appropriate evidence was provided to support the claim for savings on electricity charges.
While the appellant initially sought to make submissions in the appeal that the benefits derived by the respondent in respect of savings on electricity charges needed to be taken into account in determining any award made in favour of the respondent, the appellant's ultimate position was that it accepted there was no evidence to establish the amount of any benefit derived by the respondent from the use of the system.
Consequently, in the absence of any evidence to establish the benefit derived, no set off amount could be allowed.
Absent such evidence, it was arguable that the award in favour of the respondent should have been increased by $500, being the painting costs the Tribunal allowed in respect of the roof. However, no appeal has been filed by the respondent to seek such an order or to challenge the findings made in offsetting the electricity charges. Further, at the hearing of the appeal the parties conceded there was no evidence as to the cost of painting other than the evidence of the respondent which we have referred above. As such, arguably no award should have been made in any event for the cost painting.
In these circumstances, any discrepancies in the reasons in respect of these matters are irrelevant in resolving this appeal as there is no amount to be accounted for in respect of the award under challenge. Accordingly, it is unnecessary to consider this issue any further.

Consideration

The first question to determine is whether leave to appeal out of time is required. If so, should leave be given to amend the Notice of Appeal to seek an extension of time and should time be extended.
The appellant denies the appeal was filed out of time. If it is wrong, it seeks to amend its Notice of Appeal and asks for time to be extended. Assuming time to lodge the appeal commenced to run on the provision of oral reasons, the appellant says that the appeal was only lodged two days late and there was no prejudice to the respondent if time was extended.
The question whether the appeal was out of time raised a matter of the proper construction of r 25(4)(c). That rule provides that an appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)".
The decision is the orders made by the Tribunal on 5 March 2019: see s 5 NCAT Act. There are competing decisions of this Appeal Panel concerning whether time commences from the giving of oral reasons or from the date written reasons are given if requested. In Clark v Electrical Home-Aids Pty Ltd [2017] NSWCATAP 37 and Taylor v Peslak [2018] NSWCATAP 57 the Tribunal said time ran from when oral reasons were given. Escape Media Pty Ltd v Lawler [2018] NSWCATAP found time ran from the date written reasons were given.
As stated above, if the time runs from when the oral reasons were given on 5 March 2019, the appeal is two days out of time.
The respondent said time commenced to run from when oral reasons were given. The respondent opposed leave to amend the Notice of Appeal to seek an extension of time and opposed the grant of such an extension. This was because the Tribunal at first instance had carefully considered the evidence and made appropriate rulings. However, the respondent did not point to any prejudice to him if leave was granted.
In the present circumstances, we do not propose to re-examine the issue of whether time runs from the giving of oral reasons or, if written reasons are subsequently requested, the date those written reasons are given. We are inclined to the view that those authorities indicating time commences on the giving of oral reasons is correct. If so, the appeal is out of time.
In the absence of prejudice to the respondent and in circumstances of this case, where written reasons were requested and subsequently provided by the Tribunal, leave should be given to further amend the Notice of Appeal and time should be extended. Accordingly, we will make this order.
The first ground of appeal to deal with is that the Tribunal's reasons were inadequate.
The inadequacies concerned the findings that: 1. the system had poor and unacceptable performance and was defective, 2. the appellant was liable for losses caused by the delay in the respondent obtaining the benefit of the system, 3. the respondent was unaware that the solar panels were going on the south area of the premises; and the assessment of the losses of the respondent.
The appellant also said there had been no cross examination of the witnesses on their respective statements and the nature of the hearing was akin to a conciliation/mediation.
The challenge to the adequacy of the reasons and the complaint that no cross-examination was permitted raise questions of law for which there is a right of appeal.
Little was said in written submissions on the topic of adequacy of reasons. However, in oral submissions, the appellant said that the Tribunal did not explain why it concluded the system was defective or inadequate despite finding that electricity was being generated. In this regard, both parties accepted it was common knowledge that those panels installed on the south roof area of the premises would receive less solar radiation and generate less electricity.
In relation to the placement of the solar panels on the southern roof area as well as the eastern roof area, the appellant referred to the installation documents which the respondent had signed acknowledging the placement. That document, dated 21 December 2017, stated: 1. "The installers are unable to fit panels exactly North because of the house layout". 2. "Parts of the roof area are shaded during daylight hours". 3. "House will shade panels late in the day and winter".
In short, the appellant said the respondent knew the differently placed panels would output different quantities of electricity and made no objection to their location.
In relation to the installation, the respondent replies that the appellant was late in providing a meter for connection to the electricity grid and says that the panels should not have been installed on the southern area of the roof. The effect of these submissions is that the respondent says the appellant "would have an obligation to consult me as I might have had my own reasons not to install the panels on the south roof". This we take to be an assertion by the respondent that he was not informed about the location of the panels and would not have agreed to them being located on the south area of the roof. In this regard the respondent asserts there was sufficient space where the other panels were installed to accommodate the whole system array.
In relation to the issue of the meter, the Tribunal said in the Written Reasons at [14]: The panels and everything else (other than the meter) having been installed in December 2017, it ended up that there was no installation of the smart meter, which would have enabled the applicant to obtain the benefit of the solar production of electricity, for some 6 and a half months. The respondent is liable for the losses caused by that unreasonable delay. There were indications back in December that it would be two to three weeks. I accept what the [appellant] says that once it was up to Origin and "they wouldn't let us do it", it became difficult for anything else to have been done, and that the problem couldn't have been rectified. The difficulty with that is the [appellant] contracted to provide the meter within a reasonable time. I would have thought that two to three weeks or four to be generous, would have been sufficient, to get the whole system up and running particularly as the applicant had already paid for the system. Not much turns on that because of the decision I have arrived at.
That is, the Tribunal decided that the failure to supply the meter on time was not, ultimately, relevant to the disposition of the claim. The Tribunal then referred to the placement of the panels and that the respondent disputed "he's getting the benefit he thought he would be getting, because he was never told the panels would be located on the south, and further he was never told what the effect of that would be on production". The Tribunal then said in the Written Reasons at [17], [21], [22] and [23]: 17. I accept the evidence of Mr Milovic that he would not have proceeded with the installation at all, and would have sought a refund if he had been told those things. … 20. The failure of the contractor to properly explain panels were to be located on the south side of the roof, and the effect that would have on the performance of the system, was a breach of the warranty to perform the work in a proper and workmanlike manner. … 22. I find that there was, and that was in favour of the [appellant], who was there with all the equipment and personnel ready to do the installation, with only a preliminary but unfinalised discussion about the location of the panels. … 23. Further, s 79U(2)(d) [of the Fair Trading Act, 1987] says another factor is the relative economic circumstances, educational background and literacy of the parties, end of any person who represented any of them. In that regard we have an installer who knows everything about the effect of the location of panels, and a customer who knows very little, but enough to know he would not have agreed to the location, nor agreed to their installation, and would have sought a refund if he had been told. All of this could have been avoided by proper explanation prior to the arrival of all the material, and the workforce to install it, on 21 December 2017.
It was in these circumstances a refund was ordered.
It is difficult to understand why the Tribunal concluded there had been a breach of the warranty to perform the works in a proper and workmanlike manner. Such a finding would have required the Tribunal to determine what work should have been done and why the work carried out did not meet this obligation.
The placement of the system was to be agreed. The email from the appellant to the respondent dated 2 November 2017, sent at 2:32 pm, (Tab 1 of the document attached to the respondent's Reply to Appeal) indicates a preliminary proposed layout of the panel arrays which the email states is "not final". The email then continues: The final place will be decided by Our Clean Energy Council designer/Installer as he carries an instrument to check the azimuth of the sun we will place panel accordingly. Is sound good to you? (sic)
The document signed by the respondent on 21 December 2017 appears to be an acknowledgement by him that he was advised of the location of the final placement of the panels, that he was made aware of any negative impact from their location and did not at that time object.
Further, there was some, albeit scant evidence from the respondent that there was otherwise space to relocate the panels to the same location as the main array.
There was no cross examination of the parties concerning these aspects of the evidence, even though it is clear from the transcript we have been provided that the appellant disputed the respondent's claim that he was unaware of the placement of the panels on the south roof section and that he would not have agreed to this location. There is no explanation in the Oral Reasons or Written Reasons that would explain why this conflict was resolved in favour of the respondent.
In any event, it seems clear from the transcript that each party did not have an opportunity to cross-examine the opponent about this conflicting evidence.
In addition, it is unclear from the reasons what were the performance requirements for the system concerning electricity production into the electricity grid and why the system, that otherwise appeared to be functioning correctly, was not in compliance with the contract.
Finally, having regard to s 48MA of the Home Building Act, 1989 (NSW), there is no explanation as to why the Tribunal did not make a work order to relocate the panels to a more suitable location rather than order a refund and removal of the system.
Having regard to the above, we have reached the conclusion that the reasons are inadequate, that the appeal should be allowed and the Decision should be set aside. In the absence of cross-examination, and in light of the disputed facts to which we have referred above, in our view it is appropriate that the proceedings be remitted for rehearing before a differently constituted Tribunal.

P&N NSW Pty Ltd v Milovic

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (4)