41No or defective explicit informed consent

41 No or defective explicit informed consent

41 No or defective explicit informed consent

(1) A transaction referred to in section 38 between a retailer and small customer is void if it is established, in accordance with subsection (2) and any applicable provisions of the Rules, that explicit informed consent as required by this Division was not obtained.

(2) It is established that the required explicit informed consent was not obtained if—

(a) the customer raises the issue with the retailer either by asserting that the consent was not obtained or by requesting production of a record of the consent; and

(b) the issue is so raised within 12 months after the date of the transaction; and

(c) the retailer—

(i) admits that the consent was not obtained; or

(ii) does not produce a satisfactory record of the informed consent as soon as practicable, but within 10 business days, after the issue is so raised.

(3) Subject to subsections (4) and (5), the retailer cannot recover any amount for any energy supplied as a result of the void transaction.

(4) If the void transaction did not involve the transfer of the customer to the retailer from another retailer, the customer is only liable to pay the retailer any charges that would have been payable for the sale and supply of energy if the void transaction had not occurred.

(5) If the void transaction did involve the transfer of the customer to the retailer (the new retailer) from another retailer (the original retailer)—

(a) the customer is (subject to paragraph (b)) liable to pay the original retailer all charges for the sale and supply of energy as if the void transaction had not occurred and the sale and supply had occurred with the original retailer being the customer’s retailer; and

(b) to the extent that the customer has paid the new retailer charges for the sale and supply of energy as a consequence of the void transaction—

(i) the customer is entitled to set off the amount of those payments against any amounts payable under paragraph (a); and

(ii) the new retailer must pay the set off amounts to the original retailer; and