Johanson v Energy Air Pty Ltd

[2015] QCAT 468

CITATION: Johanson & Anor v Energy Air Pty Ltd & Anor [2015] QCAT 468

PARTIES:	Gaylene Johanson Robert Taylor (Applicants)
v
Energy Air Pty Ltd Ownit Homes Pty Ltd (Respondents)

APPLICATION NUMBER: MCDO 2436-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 7 July 2015

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 8 October 2015

DELIVERED AT: Brisbane

ORDERS MADE: 1.    Ownit Homes Pty Ltd pay to the Applicants the sum of $2,681.72.

CATCHWORDS: Solar power – benefits of installation – government rebate – failure to submit – reduction in rebate – loss of benefits over time – compensation in present day terms

APPEARANCES:

APPLICANT: Gaylene Johanson & Robert Taylor

RESPONDENT: Anjelica Walters for Energy Air Pty Ltd & Scott Ganim for Ownit Homes Pty Ltd

REASONS FOR DECISION

1. By application filed 15 October 2014 the Applicants Gaylene Johanson and Robert Taylor (‘Ms Johanson’ and ‘Mr Taylor’) seek the sum of $6,084.00 in lieu of a 44 cent solar electricity tariff lost.

Background and Evidence

1. In 2010 Ownit Homes Pty Ltd (‘Ownit’) was building a large two storey residence at 8 Quill Street, Stafford Heights for Ms Johanson and Mr Taylor. They had decided they wanted to have a solar system installed to reduce electricity costs and take advantage of a 44 cent per kilowatt solar feed in tariff on offer from the Queensland Government at that time whereby for every kilowatt hour of solar produced electricity fed into the grid they would receive 44c. An authority for variations to HIA Contract and Specification was signed on 8 July 2010 between Ownit and Ms Johanson and Mr Taylor. The relevant variation for the purposes of this application was, ‘Provide solar panels back to grid 1.5kwatt system – $3000.00.’

2. Ownit was not in the business of solar installation as such and retained Energy Air Pty Ltd (‘Energy Air’) to ‘deal with the installation and the paperwork and anything else that needs to be done so we really don’t have any involvement with it because of what Energy Air does and offers.’ Mr Ganim of Ownit agreed Ownit effectively sub-contracted the solar installation to Energy Air. That generally accorded with the evidence of Ms Johanson and Mr Taylor that they dealt with Energy Air regarding the solar installation.

3. Ms Walters of Energy Air asserted it emailed a letter to Ms Johanson and Mr Taylor on 29 November 2010 enclosing an Energex form – Application to Network Connect an Inverter System (including Solar PV) partially completed (referred to as a ‘Form 1003’). The letter requested further completion of that Form 1003 and return to Energy Air’s office whereupon according to Energy Air it would submit the Form 1003 to Energex which in turn would prompt Energex to post to Ms Johanson and Mr Taylor a copy of their network connection agreement. That agreement would set out the terms and conditions of connection. Ms Walters indicated that Energy Air for privacy reasons would not have been informed of Energex’s posting of the network connection agreement even upon enquiry.

4. The letter further stated Energex would ask that the agreement be signed and returned to it. Once the solar panels had been installed a Form 2 work request form would be submitted to Energex to enable changes to metering of the house connection to be made. Once inspected and signed off by Energex the Solar Installation would be commissioned and begin generating electricity.

5. According to Ms Johanson and Mr Taylor they never received the emailed letter of 29 November 2010 and in fact never saw it until May 2014 during the course of a complaint to the Office of Fair Trading.

6. Ms Walters of Energy Air asserted that there were follow up phone calls when the Form 1003 was not returned completed. She stated ‘we asked them to attend our office for the purpose of receiving the paperwork and completing and signing the form.’

7. Mr Taylor only attended the offices of Energy Air on 10 December 2010 or perhaps 17 December 2010 but that because the electricity account was only in the name of Ms Johanson it was necessary for Mr Taylor to take the Form 1003 back to Ms Johanson for her signature.

8. Ms Walters contended that Mr Taylor was provided with information regarding the installation process, the purpose of the Form 1003 and the network connection agreement that would be sent out to Ms Johanson by Energex directly for signature by her and return directly to Energex. Ms Walters asserted Ms Johanson signed the Form 1003 and emailed it back to Energy Air on 20 December 2010 whereupon it was faxed directly to Energex. Installation of the 1.5kw solar system was effected in December 2010 or perhaps shortly after early 2011.

9. Mr Taylor asserted no additional information was supplied to him when he attended Energy Air’s office; that no written material was provided nor verbal advice given; that Energy Air being the ‘specialist’, as he put it, should have provided a written checklist.

10. Ms Johanson and Mr Taylor stated that in February 2014 it came to their attention that all necessary paperwork to enable them to claim the 44c feed in solar rebate had not been lodged; that the missing form was the Form 1003; that as of February 2014 they were then only entitled to an 8c feed in tariff to 30 June 2014.

11. Ms Walters said that in late February 2014 Energy Air was contacted by one Maria of Energex who advised Energex was conducting a solar clean up and that some paperwork seemed to be missing. The person Maria advised that the Form 1003 and network connection agreement had not been received. Ms Walters said the Form 1003 had definitely been sent in December 2010; that after retrieving Energy Air’s archived file she was able to confirm that the Form 1003 had been submitted at that time. She said a checklist was kept on each file and that the checklist for this solar installation confirmed that the Form 1003 had been faxed to Energex at the time; that the person Maria conducted a search but was unable to locate the Form 1003; that the person Maria advised that Energex had a ‘black hole’ and that it was not the first time a Form 1003 had gone missing. In these circumstances Ms Walters did not consider Energy Air to be negligent or at fault; that in any event Energy Air was not engaged by Ms Johanson and Mr Taylor and was not ever paid by Ms Johanson or Mr Taylor.

12. Ms Walters further contended that Energy Air never received any advice from Ms Johanson or Mr Taylor that the network connection agreement had not been received by them. Ms Johanson and Mr Taylor said that they did not receive a network connection agreement and were never aware that they should have received one. They contended that if they had received information up front they would have followed the necessary procedures with respect to the network connection agreement. They simply thought that as they had completed the Form 1003 and returned it that the solar installation would have been progressed by Energy Air to completion.

13. Mr Ganim and Ms Walters contended that a 1.5kw system installed was the smallest that could be obtained at the time; that in any event Ms Johanson and Mr Taylor had been in receipt of an ongoing benefit in that use of solar power would have reduced the use of energy from the grid; that what Ms Johanson and Mr Taylor were not receiving was payment for any surplus solar power not consumed in the home and sent back to the grid; that with a 1.5kw system the energy sent back to the grid would be minimal, if any, particularly in the case of a large two storey home.

14. Ms Walters contended that no representation was made about what rebate Ms Johanson and Mr Taylor would be receiving because it was out of their control.

15. Ms Johanson and Mr Taylor contended ‘because once our meter is turned on, on 6 March [2014] our electricity provider was able to read what we were feeding back into the grid, so I was using that as a basis.’ Ms Johanson contended that the feedback was 2.18kw per day; that ‘over a year… it’s just under $350 a year.’ Ms Johanson referenced three Powerdirect invoices for the period March 2014 through September 2014 as evidence of the feedback rate. Ms Johanson quantified loss at 17 years from 2011 to 2028 at $349.49 per year with adjustments to account for limited rebate 6 March to 30 June 2014, a total of $6,084.37.

16. Ms Walters contended that a claim for 52 weeks in 2011 was not appropriate as that would have assumed Energex commissioning the solar installation on 1 January 2011; that there was an influx of solar installations at that time and that a lead time would have applied. Mr Ganim reiterated that the solar installation was reducing Ms Johanson and Mr Taylor’s power bill anyway.

17. Ms Johanson stated that Energex was prepared to reconsider the position if evidence of the submission of the faxed Form 1003 was produced i.e. a transmission receipt showing an image of the document faxed, the number it was sent from and the date and time.

18. Ms Walters stated there would only be a ‘fax transmission sheet’ if there was an issue with the fax; that there was no fax transmission sheet because the fax had successfully gone through.

Conclusions

1. Ms Johanson and Mr Taylor contracted with Ownit for the installation of the solar system at 8 Quill St, Stafford Heights. In practical terms Ownit subcontracted the installation process to Energy Air which had the know how that Ownit did not.

2. It was in the public domain / common knowledge in 2010 that a government sponsored 44c per kilowatt hour feed in tariff (rebate) was available to persons who installed solar power in their homes. This was the Queensland solar bonus scheme delegated to and administered by Energex. Ms Johanson and Mr Taylor wanted a solar system installed in their home, in the course of construction in July 2010, to reduce electricity costs and take advantage of that 44c rebate.

3. For all intents and purposes Ms Johanson and Mr Taylor dealt with Energy Air. The Form 1003 completed by Ms Johanson was according to Energy Air faxed to Energex. Energy Air relied on its letter of 29 November 2010 to assert that it had acquainted Ms Johanson and Mr Taylor of the full procedure involved regarding installation i.e. submission of Form 1003 to Energex, the completion of a network connection agreement directly between Energex and Ms Johanson and the final submission of a Form 2 work request form.

4. Ms Johanson and Mr Taylor denied ever receiving the letter of 29 November 2010 by email at that time. Mr Taylor denied ever having been given material on either 10 or 17 December 2010 such as would alert him or Ms Johanson that further procedural documentation was imminent. No evidence was produced of the emailing of the letter of 29 November 2010 i.e. an email receipt. No evidence was produced of the provision of material to Mr Taylor in December 2010 other than the simple assertion to that effect. Ms Johanson and Mr Taylor asserted they only became aware of the letter of 29 November 2010 in about May 2014 during the course of a complaint.

5. So far as the Form 1003 was concerned Ms Johanson and Mr Taylor did what they said they were told to do i.e. sign it and return it to Energy Air. That Energy Air took responsibility for the submission of the Form 1003 is self-evident. Energy Air’s position was that it faxed the Form 1003 to Energex on 20 December 2010. Without the submission of a Form 1003 a solar installation could not proceed.

6. Ms Johanson and Mr Taylor were entitled in these circumstances to assume that the Form 1003 would have been submitted to and received by and recorded with Energex.

7. It is not good enough for Energy Air to state that it faxed the Form 1003 as recorded on a checklist on Ms Johanson’s and Mr Taylor’s file. No evidence was produced to substantiate that the Form 1003 was ever received or recorded by Energex. The Form 1003 as faxed was not produced. There was no evidence of a receipt image of the Form 1003 faxed, the number it was sent to and the date and time as is common practice with documents faxed. Rather, the negative was argued i.e. there would only ever be a fax transmission sheet if there was an issue with the fax. If there was no fax transmission sheet it was therefore simply an assumption that whatever had been faxed had successfully gone through. Nor was there any evidence of confirmation of receipt of the Form 1003.

8. Ms Johanson and Mr Taylor knew nothing of the paperwork procedure for installation of solar power. They were reliant on the expertise of the installer Energy Air. Energy Air’s (and primarily Ownit’s) responsibility did not stop at simply submitting (if indeed that ever happened) the Form 1003. There was a responsibility to ensure receipt by Energex of the Form 1003 so that the next step in the installation process could be properly undertaken. That accords with Energex’s apparent position that if there was evidence of a Form 1003 being submitted prior to 9 July 2012 (the cut-off date of the 44c rebate) then Energex would be happy to review the situation.

9. Some discussion arose at hearing that Energex had some sort of black hole and may have lost the Form 1003 back in 2010. However, that suggestion falls far short of sufficient evidence to conclude the absence of a Form 1003 at the outset was the fault of Energex.

10. Ms Walters of Energy Air argued that there was no evidence of Ms Johanson or Mr Taylor ever being provided with information or any representation made that they were ‘going to receive a 44c tariff by either Energy Air or Ownit Homes.’ That is not the point. The rebate was a benefit that accompanied installation. It was well publicised at the time. Ms Walters also stated ‘we’ve mentioned before about the influx of solar installations that were done at that time.’ There can be little doubt that both Ownit and Energy Air were well aware Ms Johanson and Mr Taylor were installing solar power to reduce electricity costs and gain the benefit of the bonus scheme offer.

11. As a result of failure of the Form 1003 lodgement process Ms Johanson and Mr Taylor completely lost their eligibility for a 44c per kilowatt hour rebate through to 2028. A minor 8c per kilowatt hour rebate was applied from 6 March 2014 through to 30 June 2014 the final cut-off date of the bonus scheme. The Tribunal is satisfied that installation of the solar system was effected in December 2010 or perhaps early 2011.

12. It is some five years since installation of the solar system. It is reasonable to say the efficiency of solar panels will decrease in the future. They will not last forever. There was no evidence produced as to how much electricity Ms Johanson and Mr Taylor would produce in the future. It may be that the solar installation might not produce enough electricity in the future for any excess to be available. Nor is it the case given the vagaries of life that Ms Johanson and Mr Taylor will stay put at 8 Quill St, Stafford Heights until 2028 (44c rebate is not transferrable).

13. Accepting a total rebate loss past, current and prospectively at $6,084.37 and adopting the present lump sum equivalent in value to an income of $1 deferred for a period of 17 years (2011 to 2028) calculated at 3% on the face of it Ms Johanson’s and Mr Taylor’s present day loss is $3,681.04. Put alternatively, Ms Johanson and Mr Taylor’s loss is $6.86 per week reduced to $4.15 per week utilising deferred 3% tables for 886 weeks a sum of $3,681.04 (3% interest is considered conservative). Whilst interest rates are at historic lows the general history of interest rates would suggest increases to well above 3% in the future.

14. Taking into account the future probable decrease in the efficiency of the solar panels, variations in future consumption, the possibility of the solar installation not producing enough electricity in the future for any excess to be available in any event and the probability that though Ms Johanson and Mr Taylor continue to stay put for some time, they may move on prior to 2028 (44 cent rebate is not transferrable) it is clear that the sum to which Ms Johanson and Mr Taylor are entitled ought be discounted further.

15. Whilst obviously arbitrary the Tribunal considers a further discount of 30 per cent applicable to take account of all those factors mentioned in the previous paragraphs i.e. a net loss of $2,576.72. The application fee of $105.00 is allowed a total of $2,681.72.

16. Ms Johanson and Mr Taylor contracted with Ownit. The responsibility for the provision of solar panels formed part of the HIA contract and specification as varied. That was not disputed by anybody. The hearing considered for the most part dealings between Energy Air and Ms Johanson and Mr Taylor because Ownit effectively subcontracted the work out. That does not relieve Ownit of its contractual obligations. As rightly pointed out by Ms Walters at hearing Energy Air was not engaged by Ms Johanson and Mr Taylor, nor was Energy Air ever paid by Ms Johanson and Mr Taylor. Correctly, Ownit is responsible to pay Ms Johanson and Mr Taylor the sum of $2,681.72.