Griffiths v Washington-King - [2018] ACAT 98

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GRIFFITHS AND ANOR V WASHINGTON-KING AND ANOR (Appeal) [2018] ACAT 98

AA 25/2018 (RT 287/2018)
Catchwords: APPEAL – residential tenancies – solar panel feed-in tariff – whether the lessors must, under the National Energy Retail Law, apply the feed-in tariff to the tenants’ electricity bill – additional lease clause stating that the tenants agree they are not eligible for feed-in tariff and to pay for electricity supply and consumption charges – whether additional clause is enforceable – appeal allowed – no obligation on the lessor under the NERL to apply the feed-in tariff to the tenant’s electricity bill – additional lease clause enforceable

Legislation cited: Electricity Feed-in (Renewable Energy Premium) Act 2008 ss 6, 8, 11
National Energy Retail Law ss 2, 88
National Energy Retail Law (ACT) Act 2012 ss 6, 8
National Energy Retail Law (South Australia) Act 2011 (SA), Schedule 1
Residential Tenancies Act 1997 s 8, 9, 10 standard terms, 43, 46

Cases cited:Commissioner for Social Housing v Fowler [2016] ACAT 133
MacDonald v Melville [2017] QCATA 142

List of

Texts/Papers cited: Australian Energy Regulator (Retail) Exempt Selling Guideline, Version 5, March 2018

Tribunal: Presidential Member G McCarthy

Date of Orders:  15 October 2018
Date of Reasons for Decision:         15 October 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL       )  AA 25/2018

BETWEEN:
KYNAN GRIFFITHS
First Appellant

PHILIPPA DAVIES
Second Appellant

AND:
JOELENE WASHINGTON-KING
First Respondent

JASON WASHINGTON-KING
Second Respondent

TRIBUNAL: Presidential Member G McCarthy

DATE: 15 October 2018

ORDER

The Tribunal orders that:

The appeal is allowed

The order dated 12 June 2018 is set aside.

The respondents pay the appellants $306.37.

………………………………..
Presidential Member G McCarthy

REASONS FOR DECISION

This appeal concerns the appellant lessors’ entitlement to an electricity feed-in tariff payable under the Electricity Feed-in (Renewable Energy Premium) Act 2008 (the Electricity Feed-in Act), and whether the respondent tenants may claim the benefit of the tariff to offset the electricity supply and consumption charges to the tenanted premises.
The opportunity to access the feed-in tariff under the Electricity Feed-in Act, in the way the appellants did, ceased on 1 June 2011.[1] Different legal and factual arrangements then operated, and now operate, concerning the use of electricity generated by solar panels and the benefits provided. Nothing in this decision should be construed as applicable to these later arrangements.

Background

[1] Electricity Feed-in (Renewable Energy Premium) Act 2008 sections 6 and 8

Sometime prior to 1 June 2011, the appellants installed solar panels on the roof of their residential property in Canberra to supply electricity to the network (or grid) and applied for periodic payments under the Electricity Feed-in Act for the electricity supplied. Under section 11 of the Electricity Feed-in Act, the periodic payments at the premium rate are payable for 20 years from the date of connection.
Under a lease dated 16 October 2017 (the Lease) the appellants leased their property (the leased premises) to the respondents. The lease…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Griffiths v Washington-King

Details

AGLC: Griffiths v Washington-King [2018] ACAT 98
Case: [2018] ACAT 98
Decision Date: 15 October 2018

CaseChat Overview and Summary

The case of Griffiths v Washington-King involved a dispute over a property transaction. The parties were the Griffiths, the appellants, and Washington-King, the respondents. The Griffiths had entered into an agreement to purchase a property from Washington-King, but later decided not to proceed with the sale. Washington-King sought to enforce the agreement and claimed damages for the Griffiths' breach. The matter was first heard in the Magistrates Court of Victoria, and subsequently appealed to the County Court of Victoria. The appeal raised questions about the enforceability of the contract and the appropriate remedy for breach.

The central legal issues were whether the contract between the parties was binding and, if so, what the appropriate remedy for the breach was. The Griffiths argued that the contract was not binding because it was not properly executed. They also contended that even if the contract was binding, the appropriate remedy was not the enforcement of the contract, but rather compensation for the loss of their deposit. Washington-King argued that the contract was binding and that the appropriate remedy for breach was specific performance, that is, the completion of the sale.

The court found that the contract was indeed binding as it was properly executed. The court also found that the appropriate remedy for breach was not specific performance, but rather damages for the loss of the deposit. The Griffiths were ordered to pay Washington-King $306.37, the amount of their deposit less certain costs. The appeal was allowed, the original order was set aside, and the respondents were ordered to pay the appellants $306.37.

Orders

Orders of the court

The Tribunal orders that:

The appeal is allowed

The order dated 12 June 2018 is set aside.

The respondents pay the appellants $306.37.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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