Woods v Dorrington [2025] NSWCATAP 168 | Case summary

These proceedings originated in the Consumer and Commercial Division as 23/00378035 (formerly HB 23/39594) filed 30 August 2023. In a decision on 6 December 2023 a member ordered the current appellant (the then-respondent) to pay the applicant (the respondent to this appeal) $3,045 immediately. We shall refer to the parties in the way they appear in this appeal.
In his written reasons the member referred to the respondent having purchased 20 solar panels, an inverter and full solar system "some six years before the hearing date" and that neither party had an invoice or quote showing works done at the time; the appellant said that the system was connected to the grid on 18 April 2016. The applicant's roof was replaced under an insurance claim after catastrophic floods in the Bilambil region (in northern NSW) in February 2022. The roofer stated that the panels were working but could not be re-installed on the new roof as "large cracks appear in all the removed solar panel backing sheets due to inferior manufacturing materials and their constant exposure to thermal cycling ... ingress water and dust in the PV cell". The member rejected or reduced some of the respondent's claim totalling $6,090: half of the installation costs; costs of the inverter (latter at $1,500), and storage of old panels. A rebate of $2,210 was noted.
We note that the original written reasons did not deal with the identity of who supplied and who installed the system and did not indicate how the claim filed in early 2022 from a 2016 supply and installation fitted within s 79L(1)(a) of the Fair Trading Act 1987 (NSW) (FTA), which states that the Tribunal does not have jurisdiction to hear and determine a consumer claim if "the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged". We note that the proceedings had begun as a home building claim but there was no indication that the installation constituted a defined defect which had a sufficiently-long limitation period under the Home Building Act 1989 (NSW) to give the Tribunal jurisdiction.
Although there is no record of an appeal being filed, it seems that a set-aside application must have succeeded because the proceedings progressed to a further decision (the primary decision) by a different member (the primary member) which is the subject of this appeal.
The primary decision on 11 March 2025 ordered the appellant to pay $4,250 to the respondent immediately. That sum was said to comprise: new solar panels $1,800 allowed at $900 for six years of use; a new inverter $2,000 allowed at $1,000; cabling $1,350, and aluminium racking at $1,000. Costs again (as in the original decision) were not allowed as no special circumstances were shown under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) and the circumstances which under rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) that allowed the application of the ordinary costs rules did not arise.
The orders of 11 March 2025 recorded that oral reasons were given. We have not been supplied with a transcript and sound recording or with a copy of those reasons as was required by the directions to prepare the appeal for hearing. It is therefore not clear whether the identity or limitation points we have already mentioned were dealt with, how the solar panels were costed taking into account the solar rebate and why this time the inverter was included.
In his notice of appeal filed 24 March 2025, within time, the appellant complained about all of those issues along with others. The respondent disputed that the limitation point had been raised before the primary member, but that does not matter. As discussed further below, that the proceedings were brought within time is a finding of fact which gives, among other required facts, the Tribunal its jurisdiction to hear and determine the claim in the proceedings. It needs to be determined whether or not a party raises it.
On the identity issue (again a jurisdictional fact for reasons discussed below), there was evidence in the solar rebate claim payment of reference to the appellant's company (including into its account for the payment), not the appellant, and the invoice was ambiguous in that respect.
It is therefore not clear on the face of the primary orders: why the order was against the appellant personally; how the claim was originally filed within time. We note that the originating application itself was ambiguous in that it referred at different points to the appellant as an individual and as a business name and to the appellant's company. But it pursued the claim, it appears, against the individual who is the appellant, as the party and as the subject of the orders.
As already said, identity and time in respect of these proceedings are jurisdictional facts. The Tribunal has jurisdiction to make the order sought against the "supplier" of goods and/or services: FTA s 79D "supplier" and "supply"; s 79E "consumer claim", s 79G and s 79J. As already said, the claim must also be brought within the time specified in s 79L(1)(a) for the Tribunal to have jurisdiction to hear and determine the claim.
In the circumstances it is not safe for the current primary decision to stand, as it may have been made without jurisdiction to do so against the appellant personally, or at all because the claim was out of time. It is also not clear that the primary decision named the appellant personally rather than the company inadvertently so as to enable a correction under s 63 of the NCAT Act.
The matter needs to be re-heard to establish clearly the jurisdictional basis for hearing and determining the claim, as well as to clarify the position on the inverter and the solar rebate that we have mentioned above and possibly other elements of the claim. We do not have the materials before us to enable us to undertake that task. There is no reason that the primary member or any other member is precluded from hearing the remitted matter.
In the foregoing circumstances it is better that we refrain from expressing any views beyond the issues that we have identified.

Woods v Dorrington

At a glance

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Judgment (3 paragraphs)

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Legislation Cited (4)