Cohen v Green and Gold Solar Australia Pty Ltd
[2014] QCAT 674
•23 December 2014
| CITATION: | Cohen v Green and Gold Solar Australia Pty Ltd [2014] QCAT 674 |
| PARTIES: | Yoram Cohen Gillian Cohen (Applicants) |
| v | |
| Green and Gold Solar Australia Pty Ltd ABN 61 146 516 074 (Respondent) |
| APPLICATION NUMBER: | BDL104-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 July 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member A Fitzpatrick |
| DELIVERED ON: | 23 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Green and Gold Solar Australia Pty Ltd ABN 61 146 516 074 be substituted as the respondent in these proceedings. 2. Mrs Gillian Cohen pay to the respondent, Green and Gold Solar Australia Pty Ltd the sum of $6,165.00 within 21 days of the date of this Decision. 3. The respondent, Green and Gold Solar Australia Pty Ltd disclose in writing to Mr and Mrs Cohen the name and policy details of the insurer of JJN Electrical and Green and Gold Solar Australia Pty Ltd with respect to the work performed pursuant to the contract with Mrs Cohen. That information is to be provided within 14 days of the date of this Decision, if it has not already been provided. |
| CATCHWORDS: | Domestic building dispute – no loss or damage demonstrated |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Yoram Cohen and Gillian Cohen, self represented |
| RESPONDENT: | Green and Gold Solar Pty Ltd, represented by Brett Adams, State Manager |
REASONS FOR DECISION
Background
I have noted that the name of the respondent is incorrect. I order that the correct name for the respondent, Green and Gold Solar Australia Pty Ltd ABN 61 146 516 074 (Green and Gold) be substituted in the proceeding. That is the name which appears in the response and counter-application and on the relevant documents in evidence.
This dispute involves the supply and installation of a 5.0kw Solar Photovoltaic system with a Samil Power 5200LTD (Wi-Fi) Inverter at the home of Mr and Mrs Cohen at 8 Foley Road, Beerwah.
The contract price is $6,850.00. A deposit of $685.00 was paid. The work was performed on 26 June, 2013. The evidence of Green and Gold is that the installer was from its subcontractor, JJN Electrical. On 18 July, 2013, Energex attended at the site to connect the system to the electricity grid, but refused to do the work because exposed asbestos fibres were apparent as a result of the installer drilling holes into the switchboard panel.
The installer was notified of the problem on that day and attended to replace the panel on 4 August, 2013.
The system has been operating successfully since that date.
Mr and Mrs Cohen have refused to pay the balance owing. They complain that from the date the holes were drilled in the switchboard panel they and their children were exposed to asbestos fibres. They complain about the delay in replacement of the panel.
They say that letters of complaint were posted to Green and Gold and follow up emails were sent to Green and Gold.
Mr and Mrs Cohen say that Green and Gold have breached the contract by not exercising due diligence and not performing the work in a proper and workmanlike manner. They say that Green and Gold have been negligent in performing the work and have put the health of their family at risk.
The documents in evidence in relation to the contract include invoices directed to Mrs Cohen seeking payment of the outstanding sum and undated written terms and conditions signed by Mrs Cohen and an agent of Green and Gold. It has not been disputed that a tax invoice from Green and Gold directed to Mrs Cohen was issued on 5 June, 2013. That invoice is not in evidence.
I find that the contract was entered into with Mrs Cohen. I find that in relation to the claim in negligence a duty of care was owed to Mr and Mrs Cohen and that they are both entitled to bring the claim in negligence.
Mr and Mrs Cohen seek the following orders:
(a) relief from the obligation to pay the balance owing for the system;
(b) refund of the deposit;
(c) payment of an unspecified sum for putting the lives of the Cohen family at risk and for the aggravation caused;
(d) the full warranty for the work be treated as in place.
Green and Gold has filed a response and counter-application. Green and Gold deny receiving the Cohens’ complaints. They say that the first time Green and Gold knew of any complaint was when demand was made for payment. On that basis Green and Gold have suggested that the Cohens’ complaints are not bona fide and that they have been made to avoid payment. Green and Gold apply by counter-application for an order that the balance outstanding for the work be paid.
Green and Gold deny any liability to the Cohens on the basis that the work was performed by an electrical contractor, JJN Electrical.
Green and Gold say that no warranty exists on the basis that payment has not been made for the goods.
Terms of contract
The written terms and conditions provide that:
(a)Green and Gold will procure the installation of the system at the site. The client acknowledges that Green and Gold may subcontract its obligations, including the performance of the works to the Accredited Installer;
(b)ownership of the system will remain with Green and Gold until such time as the system and all other plant and equipment agreed to be supplied and all debts owing by the client for the system or arising from the provision of services have been paid in full;
(c)except as required by legislation all implied conditions and warranties are excluded;
(d)express warranties are:
(i)work will be performed in a proper and workmanlike manner and in accordance with this contract;
(ii)all materials supplied will be good and suitable for their purpose;
(iii)the works will be done in accordance with any law;
(iv)the works will be done with due diligence and within the time stipulated in the contract;
(v)the system will be suitable and fit for the specified purpose.
The terms and conditions document appears to contain an error, in that Green and Gold purport to limit any remedy available to their client for breach of conditions and warranties but do not say what that remedy might be. The sentence is left unfinished.
Although there is reference to an Accredited Installer, that term is not defined and no person is nominated.
Mr Cohen gave evidence that he did not know the relationship between the installer and Green and Gold and did not know that the installer was from a different company at the time the work was performed.
Evidence
No denial has been made that the electrical contractor JJN Electrical drilled into the switchboard panel and exposed asbestos fibres. In this regard I note the Energex report forming part of the Cohens’ material.
I find that in the course of installation of the solar panel system at Mr and Mrs Cohen’s home an electrical contractor, engaged by Green and Gold Solar Australia Pty Ltd drilled into the panel for the electrical switchboard exposing asbestos fibres.
Mr Adam, the State Manager for the respondent gave evidence that the letters of complaint from Mr and Mrs Cohen were not received by Green and Gold and that if they had been received the business would have acted sooner to ensure replacement of the panel. For the purpose of this case I do not think anything turns on whether the letters and emails were received or not.
At the hearing Mr Adam gave an undertaking to the Tribunal and to Mr and Mrs Cohen that he would provide full details of the public liability insurer for JJN Electrical to Mr and Mrs Cohen.
Issues to be determined
The following issues need to be determined:
(a) the jurisdiction of this Tribunal to make the orders sought by the Cohens;
(b) whether there has been a breach of contract, negligence or breach of statutory obligation by Green and Gold;
(c) the appropriate orders.
Jurisdiction
The work the subject of the contract with Green and Gold is covered by the Domestic Building Contracts Act 2000 (DBCA). This Tribunal has jurisdiction to deal with a building dispute under the Queensland Building and Construction Commission Act 2009 (QBCC Act). The QBCC Act sets out a range of orders which may be made by this Tribunal arising out of a building dispute.
This Tribunal only has jurisdiction to determine matters where a power to do has been conferred by statute. This Tribunal does not have power to award damages for personal injury arising out of negligence. To the extent that Mr and Mrs Cohen seek damages for anxiety and aggravation as a result of the risk to the health of their family from exposure to asbestos fibres, this Tribunal does not have power to make the orders sought.
Breaches
I have found that the installer drilled into a switchboard panel containing asbestos, exposing the fibres. By section 75 of the QBCC Act provision of electrical work and reviewable domestic work is Tribunal work. That is work which can be the subject of orders by this Tribunal. Section 75 further provides that a person carries out Tribunal work whether the person carries it out personally or directly or indirectly causes it to be carried out. On this basis I find that Green and Gold carried out the work in question.
Mr and Mrs Cohen submitted in evidence a number of documents which deal with asbestos. In particular, I note a Queensland Government information sheet, headed ‘Asbestos within electrical installations’ and the Queensland Code of Practice 2011 - ‘How to manage and control asbestos in the workplace’. On the basis of this evidence, I find that it was reasonably foreseeable that the switchboard panel may contain asbestos. Based on the evidence that asbestos fibres were observed after the work was performed, I find that the installer was negligent in the performance of the work and that the work was not performed in a proper and workmanlike manner, in breach of the contract warranty.
I also find that the work was performed in such a way that it breached the implied warranties set out in section 43 of the DBCA (compliance with relevant laws and legal requirements, including the Building Act 1975); and section 44 of the DBCA (exercise of reasonable care and skill).
Loss and damage
Apart from anxiety about Mr and Mrs Cohen or their children having ingested asbestos fibres and what that might mean for their health, the Cohens have not submitted any evidence of loss or damage. It is in any event not clear from the proceedings that they allege any medical condition associated with anxiety arising out of negligent performance of the work or breach of contract.
Without demonstrating loss or damage which this Tribunal has jurisdiction to consider, no award can be made in their favour. I am not satisfied that any negligent installation or breach of contract has been so gross as to void the contract entitling Mrs Cohen to return of the deposit or relief from payment of the contract price.
Other legal remedies exist for Mr and Mrs Cohen and their family in the event that loss or damage, including damage to their health emerge in the future.
Green and Gold should not obstruct Mr and Mrs Cohen in ensuring their legal rights are protected. I do not know if the undertaking given to the Tribunal has been fulfilled, however, I am prepared to order that Green and Gold disclose in writing to Mr and Mrs Cohen, details of JJN Electrical’s insurance and of its own insurance with respect to the work performed.
Counter-application
I find that the contract has been performed and that any negligent work has been rectified. The Cohens have the benefit of an operational solar panel system which they have been using since installation was completed.
On this basis, I consider that Green and Gold is entitled to payment of the balance of the contract price in the sum of $6,165.00.
Orders
I order that Green and Gold Solar Australia Pty Ltd ABN 61 146 516 074 be substituted as the respondent in these proceedings.
I order that Mrs Gillian Cohen pay to the respondent, Green and Gold Solar Australia Pty Ltd the sum of $6,165.00 within 21 days of the date of this Decision.
I order that the respondent, Green and Gold Solar Australia Pty Ltd disclose in writing to Mr and Mrs Cohen the name and policy details of the insurer of JJN Electrical and Green and Gold Solar Australia Pty Ltd with respect to the work performed pursuant to the contract with Mrs Cohen. That information is to be provided within 14 days of the date of this order, if it has not already been provided.
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