Simmons v Broken Hill Service Station Limited Trading as Bromson Energy

Evidence

1. In determining the Application, the Tribunal has had regard to the following: 1. The material filed by the applicant on 28 October 2021 and 3 December 2021 which in total comprises 30 pages of documents. 2. The matters stated by the applicant in the Application lodged on 20 October 2021. 3. The material filed by the respondent which comprises a letter from Mr Bromson to the Tribunal dated 20 November 2021 and 3 pages of documents attached to that letter. 4. The oral evidence and submissions of the parties at the hearing on 22 December 2020.
2. The findings made by the Tribunal on the basis of the above evidence is set out below.

Jurisdiction

1. In the Application, the applicant indicates that he is seeking compensation because of a "breach of statutory warranty". This is taken to be a reference to the statutory warranties prescribed by section 18B of the Home Building Act 1989 (NSW) (HBA).
2. Section 48K (1) of the HBA provides that any person may apply to the Tribunal for determination of a building claim. The Tribunal's jurisdiction to determine a building claim is, however, subject to whether certain time limits for the making of the claim are complied with.
3. Section 48K (7) of the HBA provides that the Tribunal does not have jurisdiction to determine any building claim for breach of a statutory warranty if the claim is made after the period provided by section 18E for commencing such a proceeding.
4. The provisions of the section 18E (1) (a) and (b) of the HBA relevant at the time the contract between the parties was entered into are to the effect that proceedings for a breach of statutory warranty must be commenced before the end of the "warranty period". The warranty period relevant to this Application is a period of six years for a breach that results in a major defect or two years in any other case.
5. Section 18E (1) (c) provides that the warranty period starts on completion of the work to which it relates.
6. Sub-section 18E (4) relevantly defines "major defect" to mean: (a) a defect in a major element of a building that is attributable to defective design, defective or faulty workmanship, defective materials, or a failure to comply with the structural performance requirements of the National Construction Code (or any combination of these), and that causes, or is likely to cause - (i) the inability to inhabit or use the building (or part of the building) for its intended purpose, or (ii) the destruction of the building or any part of the building, or (iii) a threat of collapse of the building or any part of the building…
7. It cannot be said that any defect in the solar energy system has caused or is likely to cause any of the consequences specified in paragraph (a) of sub-section 18E (4) (a). In particular, the applicant's home remains habitable and usable. The AGL electricity account included as part of the applicant's evidence indicates that there is an alternative source of energy being supplied by AGL.
8. The relevant warranty period was therefore 2 years from the completion of the work. As the relevant work was completed on 8 December 2015, this period had expired by the time the Application was lodged on 20 October 2021.
9. Additionally, section 48K(3) of the HBA provides that the Tribunal does not have jurisdiction to determine any building claim relating to the supply of goods and services if the claim is made more than 3 years after the supply was made. The good and services relating to the supply of the solar energy system occurred no later than 8 December 2015. The Application was made more than 3 years after this date.
10. For the above reasons, the Tribunal does not have jurisdiction to hear and determine the Application pursuant to section 48K of the HBA.
11. As indicated above, the applicant also relies on sections 18 and 60 of the ACL. The ACL is incorporated into the law of NSW by sections 27 and 28 of the Fair Trading Act 1987 (NSW) (FTA).
12. Section 79J of the FTA gives the Tribunal jurisdiction to hear certain "consumer claims". Having regard to the definitions of "consumer" and "supplier" in section 79D of the FTA and the definition of "consumer claim" in section 79E of the FTA, the Tribunal is satisfied that the Application contains a consumer claim between the applicant consumer and the respondent supplier in respect of which the Tribunal has jurisdiction. On the basis of the absence of any evidence to suggest that the applicant was aware of any defect with the solar system prior to about May 2021, the Tribunal will proceed on the basis that the claim was made within the period of time specified in section 79L of the FTA.

The Applicable Law

1. Section 60 of the ACL provides: If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
2. The phrase "due care and skill" in s 60 of the ACL is equivalent to the common law duty to take reasonable care: Let's Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6] (Basten and Gleeson JJA); Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 at [330]. The applicable test is an objective one and all of the facts and circumstances must be considered in the context of the application of an objective standard of due care and skill: see Liu v Zaccaria trading as Precision Automotive Engineers [2017] NSWCATCD 59 at [72].
3. At common law, failure of a duty to take reasonable care will ground an action for negligence. In has been said that "no conclusion of negligence could be arrived at until, first, the mind conceives affirmatively what should have been done": Pyrenees Shire Council v Day (1998) 192 CLR 330 at [166] per Gummow J; Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 194 per Isaacs ACJ. In other words, before there can be a conclusion that a respondent has failed to exercise due care and skill there must be an identification of what a reasonable person in the same position of the respondent would have done.
4. Section 18(1) of the ACL provides as follows: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
5. Where the alleged misleading statement involves the expression of an opinion or belief, certain principles are engaged in determining whether the statement contravenes section 18 of the ACL. These principles were considered recently by the NSW Court of Appeal in Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658. At [34] Bell ACJ said: Where, however, it is established that a statement or representation is or must have been understood by its target audience as one of opinion or belief, even though presenting at one level as one of fact, liability will not be strict; rather, it will generally depend upon an assessment as to whether or not the belief or the opinion was honestly held and "perhaps" (see [24] above) whether or not the maker had a reasonable basis for the belief or opinion. Other than in cases of statements as to future matters (where the statutory presumption is engaged: see, for example, Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law, s 4), it will be for a plaintiff to establish the lack of reasonable basis for belief if misleading or deceptive conduct is to be established.

Findings of Fact

1. There is agreement between the parties on a significant number of the material facts relevant to the determination of the Application. The Tribunal will commence by recording the facts on which the parties appear to be agreed before turning to the facts which are disputed.
2. On 13 November 2015, the respondent provided a quotation for the supply and installation of a solar energy system at the applicant's residential property at XX Talbot Street, Broken Hill. After applying credit from renewable energy certificates, the total amount stated in the quotation was $4,692. The quotation is addressed to Robert Simmons, who appears to be the applicant's father, however, neither party suggested that anything turns on this.
3. The respondent's quotation was accepted. The solar energy system identified in the quotation was installed on the applicant's property on 8 December 2015 by Andrew Neal of Neal Electrical Pty Ltd, a licensed electrician.
4. The Tribunal finds that on or about 8 December 2015 the applicant and the respondent entered into a contract for the respondent to supply and install the solar energy system identified in the quotation on the applicant's property.
5. Mr Bromson gave evidence, which was not disputed, that after the acceptance of the quotation, he engaged Mr Neal to instal the solar energy system on the applicant's property. Mr Neal issued a certificate of compliance stating that the work was completed and tested on 8 December 2015. The certificate indicates that a number of tests were carried out by Mr Neal. The certificate also states the following: I confirm that I have carried out the above tests and visually checked that the installation work described in this Certificate complies with AS/NZS3000 and is suitable for its intented [sic] use.
6. On 8 December 2015, Mr Neal also prepared a document described as "PV commissioning". That document identifies the manufacturer of the "PV module" as Jinko. It identifies the manufacturer of the inverters as Enphase. Mr Neal stated the following in the document: I verify that the above system has been installed to all relevant standards.
7. The applicant gave evidence that at the time of installing the solar energy system, Mr Neal gave him a document prepared by an entity known as Jinko (the Jinko Document). It appears to be common ground between the parties that Jinko was the manufacturer of the panels used in the solar energy system installed on the applicant's property. The Jinko Document stated "10 year warranty on materials & workmanship". A hand marked asterisk appears next to those words on the copy of the document relied upon by the applicant. The applicant's evidence was that Mr Neal marked the asterisk on the document when he provided it to the applicant. Mr Bromson, in giving evidence on behalf of the respondent, stated that he was not privy to the discussions between the applicant and Mr Neal and had no basis for disputing the applicant's evidence in relation to the provision of the Jinko Document by Mr Neal to the applicant.
8. It was common ground between the parties that Mr Neal has since passed away and was therefore not available to give evidence.
9. On 8 December 2015, the respondent issued a tax invoice in relation to the installation of the solar energy system on the applicant's property. The invoice indicated that an amount of $4,692 was payable. It also indicated that the solar energy system comprised 8 solar panels described as being of a type known as "Jinko" and "Enphase micro inverters".
10. A receipt dated 4 January 2016 indicates that the amount stated in the invoice was paid by Robert Simmons. Again, neither party suggested that anything turned on the fact that the invoice was paid by Robert Simmons on behalf of the applicant.
11. Included in the applicant's evidence is a "maintenance log sheet". The evidence does not indicate who prepared the document. The Tribunal infers that the document records annual inspections of the solar energy system installed on the applicant's property. The document indicates that the solar system was in working order up until 8 November 2020. It also notes that between 2016 and 2020, dust and bird excrement had accumulated on the solar energy system, however, there is nothing to indicate that this has affected the operation of the solar energy system.
12. Mr Bromson gave evidence that the inverters and envoy forming part of the solar energy system installed on the applicant's property were manufactured by an entity known as Enphase. This was not disputed by the applicant and is corroborated by the PV commissioning document prepared by Mr Neal. The Tribunal therefore accepts this to have been the case.
13. Very little information was provided to the Tribunal in relation to the roles performed by the inverters and the envoy as part of the solar energy system. At the hearing on 22 December 2021, the Tribunal asked the parties if they could explain the role performed by these components to the Tribunal so as to assist the Tribunal in forming an understanding as to their roles. Mr Bromson gave evidence that the inverters played a role in converting solar energy into useable household energy and the role of the inverter was to collect and record information about how the solar energy system was working. The applicant did not dispute Mr Bromson's explanation of the roles performed by the inverters and the envoy and the Tribunal accepts Mr Bromson's explanation in this respect.
14. Mr Bromson gave evidence that the warranty referred to in the Jinko Document only related to the panels which formed part of the solar energy system. This was not disputed by the applicant. The Tribunal accepts this to be the case.
15. In the Application, the applicant states that he contacted the respondent in about May 2021 (that is, about 5 months prior to lodging the Application on 20 October 2021) because the solar energy system had "stopped working".
16. In his letter to the Tribunal dated 20 November 2021, Mr Bromson states that he arranged for Matt Nelson, a licensed electrician, to attend at the applicant's property to inspect the solar energy system. Two attendances occurred on 21 August 2021 and 1 September 2021. He states there was a discussion with "Enphase Technical" prior to the second attendance and that the purpose of the second attendance was to carry out further checks which had been recommended by Enphase. Mr Bromson states that during the second inspection it was found that "the envoy had failed".
17. To this point, the Tribunal has recorded the facts on which there does not appear to be any disagreement, or any material disagreement, between the parties. It now turns to the area of factual disagreement between the parties which essentially relates to the factor or factors which have caused the solar energy system to cease operating.
18. The applicant basically relies on the warranty referred to in the Jinko Document. In response to the respondent's contention that there is problem with the envoy which forms part of the solar energy system, the applicant relies on information downloaded from the internet following a Google search to contend that the envoy is not necessary for the working of the system.
19. The respondent contends that based on its discussions with Enphase and the inspection of the system on 1 September 2021, the envoy has failed and needs to be replaced. Mr Bromson gave evidence that unless there is an envoy which is in working order, it is not possible to identify precisely the problem or problems with the solar energy system.
20. As will be the subject of further comment below, the applicant has not provided the Tribunal with expert evidence which may have assisted in identifying the specific factors which have resulted in the solar energy system ceasing to operate.

Whether there a breach of the guarantee to carry out services with due care and skill - section 60 of the ACL

1. The evidence before the Tribunal does not permit a finding that the respondent did not render services with due care and skill in relation to the installation of the solar energy system on the applicant's property.
2. The respondent engaged Mr Neal to perform the work. He was a licensed electrician and an accredited solar installer. He therefore appears to have been sufficiently qualified and experienced to perform the installation work. The applicant did not contend otherwise.
3. The PV commissioning document and the certificate of compliance which Mr Neal prepared indicate the steps which he took and the tests he performed in installing and commissioning the solar system. There is no suggestion by the applicant that these were not the appropriate steps to take or tests to be performed. There is also no suggestion, and certainly no evidence, that any relevant steps or tests were omitted by Mr Neal.
4. It is also of some relevance that the solar system was in good operating order from its installation in December 2015 until about May 2021. This is borne out by the maintenance log placed in evidence by the applicant and the absence of any complaint by the applicant until about May 2021. This tends to further suggest that due care and skill was exercised in the installation of the solar system.
5. Ultimately it is difficult for the Tribunal to see how it could safely conclude that there was any want of due care and skill in the absence of any evidence identifying what further or different steps Mr Neal could or should have taken in the installation of the solar system: see Pyrenees Shire Council v Day (1998) 192 CLR 330 at [166] per Gummow J; Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 at 194 per Isaacs ACJ.
6. For the above reasons, the Tribunal finds that there was no breach of section 60 of the ACL.

Whether there was a breach of the warranty contained in the Jinko Document

1. Based on the factual findings recorded above, the warranty in the Jinko Document can only relate to the "material & workmanship" in respect of the panels. The factual findings recorded above also indicate that the solar energy system is constituted by the panels (manufactured by Jinko) and the inverters and envoy (manufactured by Enphase).
2. No evidence has been presented by the applicant to establish that the failure of the solar energy system can be attributed to some fault in either the material or workmanship of the panels. The Tribunal cannot therefore safely exclude the real possibility that the problem lies with the inverters and the envoy.
3. For the above reasons, the Tribunal finds that no claim is maintainable pursuant to the warranty in the Jinko Document.

Whether there was misleading conduct - section 18 of the ACL

1. It appears from the hearing on 22 December 2021 that the applicant's claim based on section 18 of the ACL is based on statements made to him by Mr Neal to the effect that the solar panels which were supplied to him were of the best type that was available. The applicant says that Mr Neal told him that the panels were the "Rolls Royce of solar panels".
2. Mr Bromson frankly conceded that he was not privy to any discussions between the applicant and Mr Neal and could not therefore dispute the applicant's evidence as to what he was told by Mr Neal.
3. It is difficult to see how any statement by Mr Neal to the effect of that said to have been made by the applicant was other than a statement of opinion or belief. The applicant has not established that Mr Neal did not honestly hold the opinion or belief or that Mr Neal did not have a reasonable basis for the belief or opinion: see Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 at [34] Bell ACJ.
4. Even if any statement by Mr Neal can be said to be one of fact, there is no evidence to establish that the solar panels provided to the applicant were not of the best type that was available at the time.
5. Additionally, as has already been noted, there is no evidence to establish that it is the solar panels which have failed as opposed to some other part of the solar energy system such as the inverters or the envoy.
6. For the above reasons, the Tribunal finds that there was no breach of section 18 of the ACL.

Conclusion

1. For the above reasons, the application is dismissed.

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: 14 March 2022