Angus v Solar Lord Pty Ltd
[2017] QCAT 359
•20 October 2017
CITATION: | Angus v Solar Lord Pty Ltd [2017] QCAT 359 |
PARTIES: | Philip Angus |
| v | |
| Solar Lord Pty Ltd (Respondent) | |
APPLICATION NUMBER: | MCDO347-16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 14 July 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 20 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent pay to the applicant the sum of $5,527.20. |
CATCHWORDS: | TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – installation of solar hot water system – seven year warranty – tank rust leading to tank failure – causation of rust – whether manufacturer’s defect – liability for replacement cost of tank |
APPEARANCES: | |
APPLICANT: | Philip Angus |
RESPONDENT: | Jane Yu, Director |
REASONS FOR DECISION
Application
On 22 February 2016, Philip Angus filed a consumer dispute application seeking replacement of a hot water system storage tank under warranty, the cost of removal and disposal of that tank and the cost of repair to cabinetry work all in the sum of initially $3,000.00.
By application for miscellaneous matters filed 7 June 2016, Mr Angus sought to increase his claim for defective tank decommissioning and disposal and new tank installation in the amount of $5,418.60, and removal and replacement of cabinetry in the amount of $4,780.00, a total of $10,198.60.
Background and evidence
In March 2010, Mr Angus purchased from eco-Kinetics Pty Ltd (eco-Kinetics), a Queensland based supplier, a Solar Lord hot water system including a 450 litre solar hot water tank and 30 tube kit solar collectors[1] for his Enviro-Cottage Project at 32 Isaac Street, Spring Hill. eco-Kinetics’ sub-contractor Slade Brothers Plumbing installed the tank and collectors. The cost to Mr Angus at the time was some $4,351.60.
[1]For clarity, the solar hot water system consisted of the hot water tank (in appearance akin to a hot water cistern) and a 30 tube kit (rooftop tubes encased in a metal frame, also referred to as the collectors). The tubing heats the water under pressure from a circulation pump. The hot water tank retains the heated water within a temperature range. If the water temperature is out of range then the circulation pump circulates water back up through the tubing and down again into the water tank. The system can be boosted by electrical back up heating in the event of water not being heated to within range.
An issue arose initially as to whether the original installation of the hot water system and collectors were Solar Lord products. A statement by one Scott Humphreys was provided to the Tribunal. He stated he was employed by eco-Kinetics from January 2008 to August 2012; that eco-Kinetics had supplied and installed through its sub-contractor a complete Solar Lord solar hot water system for the project at 32 Isaac Street, Spring Hill. Additionally, photos produced by Mr Angus depicted the Solar Lord branded solar hot water system and Solar Lord rooftop collectors in April 2010.
Solar Lord suggested that collectors installed in 2010 were not Solar Lord collectors. This suggestion was based on comments apparently by Kelvin Slade of Slade Brothers Plumbing.
The Tribunal considers the preponderance of evidence favours the conclusion that the whole hot water system, solar hot water tank and collectors was a Solar Lord product installed in 2010.
The Solar Lord hot water system came with a seven (7) year warranty for the original purchaser who was stated as being ‘the householder to whom this water heater was first installed for’. The warranty conditionally stated ‘the water heater must be installed in accordance with the Solar Lord installation instructions supplied with the water heater’ and:
Damage to buildings, chattels or any other consequential damage caused either directly or indirectly due to leakage of the water heater and breakage of collector glass due to vandalism or storms including hail are not within the scope of this warranty.
The warranty also stated, ‘Solar Lord Hot Water shall not be liable for any consequential damages, furniture, walls or other structural damages, or any incidental expenses directly or indirectly due to any defects of its products’.
The warranty did not apply if the system was not installed, operated, maintained or serviced in accordance with the instructions supplied with the product by Solar Lord.
On 5 September 2015, Mr Angus submitted a warranty claim to Solar Lord stating:
We have had a leak on the right side of our tank and called plumbers out to fix, but they were unable or unwilling to as they say the issue is a tank corrosion issue which should be covered by the Solar Lord warranty.
Mr Angus stated:
Plumbing that comes down from the collector upstairs and then that then connects to the tank. The tank is provided by Solar Lord… if the breakdown… is caused on the tank’s side of that connection point then it’s a tank issue. If the breakdown… has occurred… on the plumbing side then it’s not the tank at issue.
He added it was plumber’s assessment at that time that the leak was a warranty issue.
On 7 September 2015, Mr Angus emailed Solar Lord:
Although the first service was due between May 2014 and May 2015, we suffered hail damage last year which destroyed the collectors, and the system has been turned off since then, rendering a service unnecessary or at least premature, while we have waited for nearly a year to get the collectors replaced through our insurance process.
On 8 September 2015, Solar Lord emailed Mr Angus setting out upon independent assessment the issues that needed to be addressed. On 19 October 2015, Damien Lacey Plumbing Maintenance Pty Ltd (Damien Plumbing) engaged by Mr Angus at his own cost to report, attended the Isaac Street premises to drain the hot water tank. His invoice dated 23 October 2015 stated:
Remove 3/4 x 1/2 bush and 1/2 ml x comp elbow that were believed to be leaking. Replace fittings and thread tape in. Found severe rust around collector return inlet when refilled tank to find it still leaking. Believe tank to be rusted out/cracked.
Solar Lord asserted that the product warranty only applied to a product failure resulting from defective manufacturing; that the tank defect arose from defective installation in the first instance; that the customer, Mr Angus, had a responsibility, as stated in the user’s instruction guide, to maintain and rectify any leaks promptly.
Solar Lord further asserted that Mr Angus had replaced his rooftop collectors in May 2015 through his home insurance, NRMA, on account of hail damage in 2014; that the insurer’s builder Cananie Constructions ordered and replaced the collectors for Mr Angus. Sub-contractor Connectors Plumbing installed the collectors.
Mr Angus confirmed that as a result of a hail storm in November 2014 collectors were damaged and had to be replaced; that the insurance process took a number of months to complete. He asserted that the insurance claim, otherwise excluded from the warranty, was an unrelated issue and irrelevant.
As for defective installation, Ms Yu said that a product Locktite in lieu of Teflon tape was used for connections; that Locktite was not an approved sealant for hot water systems, saying it had low duration and would crack causing seepage with water gradually leaking around the connection; that the installer had broken the PVC ring around the connection which was critical to prevent water flowing towards the inside of the tank if the connection was not sealed properly; that lagging had melted which reflected the overheat history of the system. All these assertions were based on photos of the collector inlet connection to the hot water tank supplied by Mr Angus to Solar Lord. The tank was never physically inspected by Solar Lord despite available opportunity.
Damien Lacey stated Ms Yu’s comments about Locktite were unfounded; that Locktite as a company did not ‘appreciate false claims being aired about their product’; that Solar Lord’s comments about Locktite were false. He added the male/female connection never leaked, stating ‘the leak has been from a failure in the tank itself. This has been conclusively proven’. He said:
The plastic flange that is mentioned would have been intact on installation, as the tank deteriorated & the rust flared it would have cracked away as it is made of plastic that becomes brittle. The apparent melted insulation mentioned is common on this type of installation with this type of insulation. The end of the material has merely curled, it is rite [sic] on one of the hottest parts of the system. Hardly surprising.
Mr Kourtos asserted that a six-monthly flush of the tank should have been carried out; that such would have promoted longevity and have led to early detection of rust.
Conclusions
In March 2010, Mr Angus purchased a complete solar hot water system, water tank and collectors. It was a Solar Lord product which came with a seven year manufacturer’s warranty. Some five years later, in 2015, the water tank leaked. It lost its functionality and required replacement.
Mr Angus made a warranty claim. He supplied photos of the tank rust at and around the tank inlet connection. He was required by Solar Lord, at his own cost, to obtain an independent report. That was supplied by Damien Lacey Plumbing Maintenance. Mr Lacey reported that when the tank was drained and refilled it still leaked. He believed the tank to be rusted out/cracked.
A number of assertions were made by Ms Yu of Solar Lord, including use of Locktite in lieu of Teflon tape as a sealant for connections, the installer breaking the PVC ring around the connection and melted lagging indicative of overheating, all based on photos supplied by Mr Angus. These assertions were at best possible but inconclusive explanations for the tank rust.
On the other hand, Mr Angus had the tank rust and connection examined on the spot by Mr Lacey, Plumber, who quickly came to the conclusion that the tank leak had resulted from a failure in the tank itself. Mr Lacey explained that the plastic flange cracked away in time because it was plastic that became brittle over time; that melted insulation was common to the type of installation in question and that material curling was the result of heat.
The tank functioned for five years, at which point it leaked and was found to be rusted. The tank rust is outwardly visible as depicted in photos placed before the Tribunal. That is clearly a manufacturer’s defect resulting from defective manufacture.
Whilst it was argued that poor metal welding may have allowed rusting to accelerate, the fact remains it was the tank that was rusting and it took five years to get to the point of tank failure.
There was no evidence that the tank was misused, with the only evidence of alleged non-compliant installation being observations based on photos supplied by Mr Angus. Quite apart from the fact that longevity of function of five years is at odds with non-compliant installation, it is the case that Mr Lacey personally inspected the tank and promptly concluded that the tank was rusted.
Solar Lord’s conclusions rejecting warranty claim were based entirely on photographic observations, not on physical inspection.
Six monthly flushing of the tank may have led to earlier detection of rust, but that was nothing more than a possibility. Flushing was a matter of good practice. There was no evidence that an absence of flushing caused the rust.
The functioning of the tank for some five years would suggest an incremental accumulation of rust, not necessarily detectable at early stages.
As for Mr Angus’ claim in respect of cabinetry, that was clearly excluded under the limited warranty.
Mr Angus has incurred the cost of decommissioning the defective tank and installing a new tank at a cost of $5,418.60 consequent upon the failure of the tank supplied by Solar Lord. The Tribunal allows Mr Angus’ claim at $5,418.60 together with the application fee of $108.60, a total of $5,527.20.
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