Simmonds v True Value Solar Pty Ltd

[2014] QCAT 44

CITATION: Simmonds v True Value Solar Pty Ltd [2014] QCAT 44

PARTIES:	Michael Simmonds (Applicant)
v
True Value Solar Pty Ltd (Respondent)

APPLICATION NUMBER: MCDO1566-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 7 November 2013

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 31 January 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The respondent pay to the applicant the sum of $5,683.40.

CATCHWORDS: Solar power – benefits of installation – Government rebate – failure to register – introduction of reduced rebate – loss of benefits over time – compensation in present day terms.

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Michael Simmonds

RESPONDENT: No appearance

REASONS FOR DECISION

Application

1. By application filed 5 August 2013 the applicant, Michael Simmonds seeks the sum of $10,000.00 being a loss incurred by him resulting from the failure of True Value Solar Pty Ltd (True Value Solar) to submit an electrical work report (EWR) in respect of a solar installation at 23 Meadow Way, Upper Coomera by 9 July 2012. Alternatively he seeks a refund of $2,452.00 from True Value Solar on account of non provision of a service described (represented) at the time of purchase of the solar installation.

Background and evidence

1. In January 2012 Mr Simmonds contacted True Value Solar in response to the advertising of solar installations by the latter.

2. According to Mr Simmonds it was not only represented to him that he would save some $200 per quarter in electricity costs per force of being able to use solar generated electricity but that he would also receive a cash rebate of some $200 per quarter being the excess electricity generated by the solar installation and which would form part of the feed in tariff which the Queensland Government was required to pay at the rate of 44 cents per kilowatt through to 2028. In respect of this latter rebate Mr Simmonds estimated his loss at $12,800 being $200 per quarter for 16 years through to 2028.

3. The solar panels were installed in about March/April 2012 at which time according to Mr Simmonds it was stated by True Value Solar’s installers that True Value Solar would “complete all necessary paperwork on our behalf”. Mrs Simmonds, in whose name the electricity account was then conducted, signed all necessary forms as requested. In the meantime Mr Simmonds had sold his ute to pay for the installation at a cost of $2,452.00.

4. The electricity invoice for the period 5 April 2012 through 6 July 2012 did not record a rebate of any kind. Nor did the invoice 7 July 2012 through 28 September 2012.

5. Upon inquiry in early October 2012 True Value Solar indicated initially that the rebate application had been faxed to Energex. This information was confirmed by True Value Solar’s letter of 11 October 2012 to Mr Simmonds which states, “Please find enclosed a copy of your application for EWR sent to Energex on 23 March 2012 at 5:14pm. EWR generically stands for electrical work request in this case being an “application to network connect an inverter energy system”. Thereafter Mr Simmonds inquired at Energex and was told that no such fax had ever been received by it.

6. The EWR accompanying True Value Solar’s letter of 11 October 2012 bore no markings indicating that it had been faxed or a date on which it might have been faxed. The EWR was neither signed nor dated; nor was there any evidence of any read receipt for any such fax which might support True Value Solar’s contention that it indeed faxed the EWR to Energex.

7. Thereafter True Value Solar indicated to Mr Simmonds that the EWR had in fact been posted in late March 2012 by registered parcel post and provided Mr Simmonds with a tracking number (#167333307098). Energex did apparently receive this registered parcel post but after much checking confirmed that the material received in that registered parcel post did not concern Mr Simmonds EWR.

8. From October 2012 and for many months thereafter Mr Simmonds sought to clarify whether in fact the EWR had ever really been sent by True Value Solar to Energex and if so what had become of it but he simply went backwards and forwards between those two entities.

9. Mr Simmonds frustration was exacerbated by the Queensland solar bonus scheme feed in tariff being reduced from 44 cents per kilowatt to eight cents per kilowatt from after 9 July 2012 ceasing in 2014. Mr Simmonds in the latter half of 2012 applied for and obtained the benefit of the reduced feed in tariff of eight cents per kilowatt. He indicated it was better than nothing in the interim. Mr Simmonds agreed there was an ongoing saving in that solar generated electricity used for household purposes reduced the invoice cost of electricity; but he said the “pitch” of True Value Solar at the time of purchase of the solar installation was that the excess electricity produced by the solar installation i.e. the feed in tariff being worth 44 cents per kilowatt hour would produce a positive cash rebate for Mr Simmonds. That, quite apart from the household saving, was the real incentive or drawcard given that he and his wife intended to stay put for some time. It was the loss of this positive cash rebate over the years to come through to 2028 as opposed to the minimal eight cents per kilowatt hour expiring in 2014 that was the real loss.

Conclusions

1. Mr Simmonds contracted for and paid for to the tune of $2,452.00 for a solar installation at premises 23 Meadow Way, Upper Coomera. He went out of his way selling his ute to ensure that he had enough funds to pay for the solar installation. The solar installation was effected in March/April 2012.

2. A strong incentive for solar installation in early 2012 was the announcement at or about that time of the cessation of the 44 cent per kilowatt hour feed in tariff introduced under the Queensland solar bonus scheme from after 9 July 2012. The Tribunal accepts that the True Value Solar’s approved and selected installer at the time of installation (and therefore as representative of True Value Solar) spoke words to the effect that all necessary paperwork would be completed by True Value Solar and that True Value Solar undertook responsibility for submission of the EWR which would assure that the monetary benefit represented would be forthcoming. Mr and Mrs Simmonds were entitled to assume that all paperwork had been properly submitted and recorded. All necessary paperwork was in fact completed with Mr and Mrs Simmonds assuming that all matters have been attended to. This accords with the further evidence of Mr Simmonds who stated that upon becoming aware of the absence of any form of rebate in subsequent electricity invoices spoke to True Value Solar which initially indicated that the application for EWR (and hence eligibility for the rebate) was faxed to Energex on 23 March 2012 at 5:14pm. This is confirmed by the True Value Solar letter of 11 October 2012 wherein it states “please find enclosed a copy of your application for EWR, sent to Energex on 23 March 2012 at 5:14pm”. The Tribunal accepts on the evidence of Mr Simmonds that Energex more than likely never received that fax if indeed it was ever sent. The EWR accompanying the letter of 11 October 2012 bore no fax markings nor any dates which might indicate the date of faxing. The EWR is not even a signed copy. In these circumstances the Tribunal has reservations as to the authenticity of that accompanying EWR.

3. Subsequently True Value Solar asserted that in fact the EWR had been posted as a registered post parcel. Whilst Energex acknowledged receipt of the registered post parcel referred to by True Value Solar it concluded after a good deal of inquiry that the material forwarded in that registered parcel post did not concern the Simmonds EWR but in fact it concerned others.

4. True Value Solar’s responsibility did not stop at simply submitting the EWR (if indeed it ever was submitted whether by fax or post). It was incumbent upon True Value Solar to ensure Energex’s receipt of the EWR thus putting in place at the very least the availability of the represented positive cash rebate over the years to come through to 2028.

5. In the absence of any credible proof on the part of True Value Solar Energex declined to accept that True Value Solar had ever sent an EWR to it. Time passed and despite the solar installation having been in place some three to four months prior to 9 July 2012 the Simmonds completely lost their eligibility for a 44 cent per kilowatt hour rebate. Mr Simmonds applied for the eight cent per kilowatt hour rebate as it was better than nothing at the time in the latter part of 2012. Undoubtedly Mr Simmonds has suffered a real loss.

6. Whilst Mr Simmonds could not recall exactly what he may have said when first communicating with True Value Solar in January 2012 the Tribunal certainly accepts that fairly specific representations were made to him as to the benefits of a solar installation. The Tribunal in particular accepts Mr Simmonds evidence that a specific representation was made to the effect that he could expect a quarterly cash rebate (feed in tariff) in the range of $200.00.

7. Mr Simmonds accepted that efficiency of the solar panels installed would decrease in the future; that he did not know how much electricity he and Mrs Simmonds would consume in the future; that the solar installation may not produce enough in the future for any excess to be available; that he and Mrs Simmonds may not stay in the same premises until 2028 (44 cent rebate is not transferrable).

8. Assuming no rebate of $200 per quarter for 16 years (2012 – 2028) Mr Simmonds has lost currently and prospectively $12,800. Adopting the present lump sum equivalent in value to an income of $1 deferred for a period of 16 years calculated at three per cent on the face of it Mr Simmonds present day loss is $7,974.40. Put alternatively Mr Simmonds loss is $15.384 per week reduced to $9.58 per week utilising deferred three per cent tables for 832 weeks, a sum of $7,974.40 (three per cent interest is considered conservative. Whilst interest rates are at historical lows the general history of interest rates would suggest increases to well above three per cent in the near future).

9. 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 Mr and Mrs Simmonds 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 Mr Simmonds is entitled ought be discounted further. Additionally some minor benefit would accrue to Mr and Mrs Simmonds in terms of their savings on electricity at the rate of eight cents per kilowatt for the period October 2012 through to 1 July 2014 when the eight cent per kilowatt rebate ceases. An eight cent per kilowatt rebate is only 18 per cent of the 44 cent per kilowatt rebate otherwise applicable and even assuming a positive cash flow of $200 per quarter seven quarters at 18 per cent of that $200 only amounts to $222.

10. 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 $5,582.  The application fee of $101.40 is allowed a total of $5,683.40.