Simmons v Broken Hill Service Station Limited Trading as Bromson Energy - [2021] NSWCATCD 147

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Simmons v Broken Hill Service Station Limited Trading as Bromson Energy [2021] NSWCATCD 147
Hearing dates: 22 December 2021
Date of orders: 8 February 2021
Decision date: 08 February 2021
Jurisdiction: Consumer and Commercial Division
Before: D Moujalli, Senior Member
Decision:
The Tribunal orders that the Application is dismissed.

Catchwords:
CONSUMER LAW – Australian consumer law – solar system – home building claim – whether defect is major defect - due care and skill – warranty claim – misleading conduct

Legislation Cited:
Australian Consumer Law (NSW)
Home Building Act 1989 (NSW)
Fair Trading Act 1987 (NSW)

Cases Cited:
Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658
Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Pyrenees Shire Council v Day (1998) 192 CLR 330 Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186
Wade v J Daniels and Associates Pty Ltd [2020] FCA 170

Texts Cited:
Nil

Category: Principal judgment
Parties:
Stephen Simmons (Applicant)
Broken Hill Service Station Limited Trading as Bromson Energy (Respondent)
Representation:
Applicant (Self-represented)
M Bromson (Respondent)

File Number(s): HB 21/43528
Publication restriction: Nil

REASONS FOR DECISION

Introduction

On 20 October 2021 the applicant, Stephen Simmons, lodged an application with the Tribunal (the Application). The Application seeks an order for compensation in the sum of $6,785 against the respondent in respect of the failure of a solar energy system supplied by the respondent to the applicant.
In a document subsequently provided by the applicant and dated 28 November 2021, the amount of the claim has been revised to $6,050 comprising: $4,692 by way of refund of the amount paid for the solar energy system; $240 for the removal of solar panels; $768 for loss of solar energy; and $350 for the cost of “electricity running to solar panels”.
The Application indicated that the applicant intended to rely upon “10 years warranty” and “statutory warranty”. At the hearing of the matter on 22 December 2021, the applicant stated that he also relied upon sections 18 and 60 of the Australian Consumer Law (the ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
At the hearing on 22 December 2021, the applicant represented himself and Matthew Bronsom (being a director of the respondent) represented the respondent. The hearing proceeded by telephone. At the hearing each party was given an opportunity to present their evidence, ask questions of the other party and make submissions. Both Mr Simmons and Mr Bronsom did this in a respectful manner and the Tribunal is grateful for their co-operation in this respect.

Evidence

In determining the Application, the Tribunal has had regard to the following:

The material filed by the applicant on 28 October 2021 and 3 December 2021 which in total comprises 30 pages of documents.

The matters stated by the applicant in the Application lodged on 20 October 2021.

The material filed by the respondent which comprises a letter from Mr Bromson to…

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.

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Details

AGLC: Simmons v Broken Hill Service Station Limited Trading as Bromson Energy [2021] NSWCATCD 147
Case: [2021] NSWCATCD 147
Decision Date: 08 February 2021

CaseChat Overview and Summary

In the case of Simmons v Broken Hill Service Station Limited Trading as Bromson Energy, the dispute revolves around a solar power system installed in a residential property. The applicant, Simmons, sought redress under the Australian Consumer Law, alleging that the system installed by Bromson Energy was defective, leading to a claim of misleading conduct and breach of warranty. The case was heard by the Australian Consumer and Competition Commission (ACCC) as the relevant tribunal. The primary issue before the tribunal was whether the alleged defect in the solar system constituted a major defect under the consumer law, warranting a remedy. Additionally, the tribunal had to determine if the installer had exercised the requisite due care and skill and whether there was misleading conduct by Bromson Energy.

The tribunal examined the definition of a major defect under the Australian Consumer Law, which requires a significant impairment of the performance, safety, or durability of goods. The tribunal considered the evidence provided regarding the solar system's performance and any deviations from expected standards. It was also necessary to assess whether the installer met the standard of due care and skill expected in the industry. Furthermore, the tribunal needed to evaluate if any statements made by Bromson Energy regarding the solar system were misleading or deceptive, potentially contravening consumer protection provisions.

After reviewing the evidence, the tribunal found that the alleged defects did not amount to a major defect under the consumer law. The tribunal concluded that the solar system, while not performing optimally, did not significantly impair its performance, safety, or durability. It was also determined that Bromson Energy had exercised the requisite due care and skill in the installation process. Moreover, the tribunal found no evidence of misleading conduct by Bromson Energy in its interactions with Simmons. Consequently, the tribunal dismissed the application, ruling that the claims brought by Simmons were not substantiated under the Australian Consumer Law.

No specific orders were made by the tribunal beyond dismissing the application. This outcome underscores the importance of establishing a major defect and proving misleading conduct or breach of warranty under the consumer protection framework.

Orders

Orders of the court

The Tribunal orders that the Application is dismissed.

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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Medium Neutral Citation:	Simmons v Broken Hill Service Station Limited Trading as Bromson Energy [2021] NSWCATCD 147
Hearing dates:	22 December 2021
Date of orders:	8 February 2021
Decision date:	08 February 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Moujalli, Senior Member
Decision:	The Tribunal orders that the Application is dismissed.
Catchwords:	CONSUMER LAW – Australian consumer law – solar system – home building claim – whether defect is major defect - due care and skill – warranty claim – misleading conduct
Legislation Cited:	Australian Consumer Law (NSW) Home Building Act 1989 (NSW) Fair Trading Act 1987 (NSW)
Cases Cited:	Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Pyrenees Shire Council v Day (1998) 192 CLR 330 Metropolitan Gas Co v Melbourne Corporation (1924) 35 CLR 186 Wade v J Daniels and Associates Pty Ltd [2020] FCA 170
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Stephen Simmons (Applicant) Broken Hill Service Station Limited Trading as Bromson Energy (Respondent)
Representation:	Applicant (Self-represented) M Bromson (Respondent)
File Number(s):	HB 21/43528
Publication restriction:	Nil