Smith v Origin Energy - [2015] QCAT 498

CITATION:

Smith v Origin Energy [2015] QCAT 498

PARTIES:	James Vincent Smith (Applicant)
v
Origin Energy (Respondent)

APPLICATION NUMBER:

MCDO496-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

11 September 2015

HEARD AT:

Southport

DECISION OF:

Adjudicator Howe

DELIVERED ON:

23 November 2015

DELIVERED AT:

Southport

ORDERS MADE:		Application Dismissed
CATCHWORDS:	Claim to recovery of payments of electricity supply – termination of supply - sufficient evidence – delay – onus of proof

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

James Vincent Smith

RESPONDENT:

Kym Diercks

REASONS FOR DECISION

James Vincent Smith is the father of Ivan Alexander Smith. In 2008 Ivan Smith owned a unit at 30/40 Ferny Avenue, Surfers Paradise. In November 2008 he leased the unit to Matthew Cockerill. Mr Cockerill resided there as tenant through to September 2014.
Before leasing the unit to Mr Cockerill, Ivan Smith had engaged Origin Energy to provide electricity to the property. He set up an automatic debit for payments through his bank. Origin Energy billed Ivan Smith for the power supplied to the unit throughout the entire period of Mr Cockerill’s tenancy. Mr Cockerill did not open any account with Origin Energy.
Ivan Smith, through his father James Smith, acting as his duly appointed attorney, brings this claim against Origin Energy to recover the monies paid for the supply of power after November 2008, namely $4,292.57. An order is also sought to remove a default listing with Dun and Bradstreet placed by Origin Energy for an outstanding amount claimed of $1,247.76. Origin Energy raised no challenge to the right of James Smith to bring this claim on behalf of his son as his attorney. Ivan Smith presently resides in Chile.
James Smith said in a statement attached to the application that ‘we’ were moving from Unit 30 Ferny Avenue to Brighton-le-Sands in New South Wales in about November 2008. Origin Energy was contacted and advised the account at Unit 30 was no longer needed and the account should be closed. Origin Energy requested a forwarding address and Origin Energy was given ‘the address in Brighton’. James Smith says no bills were ever received at that address in Brighton.
There are two addresses however associated with Brighton-le-Sands, Unit 16, 354 Bay Street and Unit 7, 14 Kings Road. James Smith says he knows nothing about the Bay Street address. They (the Smiths) moved from Unit 30 Ferny Avenue to Unit 7, 14 Kings Road, Brighton-le-Sands in November 2008.
Origin Energy says it sent a copy of all bills over the period November 2008 to August 2013 to the address noted in their records which was Unit 16, 354 Bay Street, Brighton-le-Sands. Origin Energy tendered copies of electricity accounts they forwarded to Ivan Smith at the Bay Street address dated respectively 21 April 2006, 30 April and 30 July and 29 October 2008. They say none were returned. The Bay Street address had been advised to Origin Energy as the address for notices for Ivan Smith since April 2006.
According to a statutory declaration sworn by Ivan Smith on 20 October 2015 he states as at 18 November 2008 he had recently moved into Unit 7, 14 Kings Road, Brighton-le-Sands. He makes no mention about the Bay Street, Brighton-le-Sands address. One would have thought he should. It was an issue raised with the Energy and Water Ombudsman Queensland well before this hearing and an issue between the parties.
Ivan Smith says in his statutory declaration that he spoke to someone at Origin Energy by telephone on 18 November 2008 and cancelled the service at Unit 30 Ferny Avenue. Origin Energy say there is no record of any such contact by either Ivan or James Smith.
The applicant’s case relies upon the claim by Ivan Smith that he advised Origin Energy to close the Unit 30 Ferny Avenue account by telephone on 18 November 2008 and the existence of the residential tenancy agreement with Mr Cockerill showing the latter agreed to be responsible for electricity at Unit 30. James Smith claims logic dictates and the conclusion should be drawn that there was no need for the electricity account in the name of Ivan Smith after Mr Cockerill became the tenant. I agree the residential tenancy agreement suggests Ivan Smith’s account with Origin Energy was no longer necessary, given that Mr Cockerill agreed to pay for power under the lease. But that does not conclude the matter. The issue then becomes however, should the Tribunal conclude Origin Energy was advised to end the account in November 2008?
The matter was investigated by the Energy and Water Ombudsman of Queensland (‘the Ombudsman’) in November 2014. Origin Energy have supplied a Case Closure Notice they received from the Ombudsman on 3 November 2014. In the notice from the Ombudsman mention is made of Origin Energy advising they had no record of any request to close the account before 5 August 2013 when Ms Carmen Beecham, who was described as an authorised person, contacted Origin Energy and requested the account be closed, disconnection of supply and that the final bill be emailed to [email protected]. The report goes on to say the final bill was issued on 9 August 2013 via email to that email address and also emailed to [email protected] at the customer’s request.
The tenancy agreement with Mr Cockerill shows the agent for the lessor was Raine & Horne Labrador/Parkwood. The lease is signed by C Beecham as agent for the lessor. I conclude Ms Beecham was probably contacted by the applicant or his son after Origin Energy lost the billing rights to the unit sometime in July 2013 and given instructions to contact Origin Energy.
Over the period September 2008 through to July 2013 Origin Energy accounts were paid by automatic direct debits to Ivan Smith’s account. He either ignored the deductions or failed to notice them in his bank statements for some considerable time.
It is not clear what occurred between Mr Cockerill and Ivan Smith after Ivan Smith found out he had been paying for Mr Cockerill’s electricity for many years. Was Mr Cockerill asked to pay for the electricity and refused? If he refused, on what basis? The tenancy agreement shows the tenant agreed to pay for power. Origin Energy challenge whether the existence of the tenancy agreement actually proves much at all. They say there could have been an arrangement whereby Ivan Smith continued to be billed and submitted the bills to Mr Cockerill who reimbursed Ivan Smith. Indeed apart from the tenancy agreement, there is no evidence that Mr Cockerill actually moved into Unit 30. Unfortunately Mr Cockerill has left Australia and is not available, according to James Smith.
I conclude that there is no sufficient evidence to persuade me that Origin Energy was contacted in November 2008 by Ivan Smith and Origin Energy was asked or agreed to cancel the account over Unit 30. I accept the evidence from Origin Energy that hard copy accounts continued to be sent by them to Ivan Smith at the address he had previously advised Origin Energy to send them to since 2006, namely Unit 16, 354 Bay Street, Brighton-Le-Sands. I accept none were returned in the mail. I do not accept the Bay Street address was unknown to the Smiths as claimed by James Smith given the accounts forwarded there from 2006, well before the Smiths vacated Unit 30 Ferny Avenue for 14 Kings Road, Brighton-le-Sands.
I accept that Origin Energy has investigated their records and that their records do not disclose any recorded telephone conversation with Ivan Smith in November 2008 or at any other date when he advised them to terminate his account with respect to the Ferny Avenue unit. In 2008 Origin Energy operated two data recording systems. Mr Diercks for Origin Energy said he had investigated both systems and neither disclosed any record of a request to terminate the Smith account in November 2008.
The applicant has the burden of proof in this matter. He must tender evidence to support his claim and that evidence must on the balance of probabilities establish his claim as being more probable than that asserted by the respondent. The applicant has not satisfied the burden of proof here.
Even on Ivan Smith’s evidence, he suggests in the call to Origin Energy in November 2008 there was initially a difficulty with Origin Energy finding his account details. He was advised the account details he gave were wrong. He told them he had a problem accessing his account information given his move interstate. They said they would phone back. He did not wait to hear from them however but called again after an hour or so and spoke to somebody else who said to him Origin Energy had located the account number for Unit 30 Ferny Avenue and Origin Energy would terminate electricity supply. On the best case scenario for Ivan Smith the call to Origin Energy on 18 November 2008 was not straight forward. I conclude that cancellation arrangements were not appropriately arranged via any such telephone call in November 2008. I conclude that at that time and thereafter until Origin Energy was contacted by Carmen Beecham, Origin Energy had not been given notice or any sufficient notice to terminate the supply of electricity to the unit at Ferny Avenue.
What is also left unsaid is any attempt made by Ivan Smith to terminate the automatic debit arrangement in favour of Origin Energy by contacting his bank in timely fashion. James Smith said at hearing that they (the Smiths) owned three properties at Ferny Avenue, and that they recognised there was something wrong with the direct debit facility in early 2012. They corresponded with Origin Energy but got ‘the brush off’. The explanation about their failure to cancel the facility from at least early 2012 is that Ivan Smith’s bank refused to accept instructions from James Smith. That to my mind doesn’t explain why Ivan Smith could not immediately communicate with the bank directly however in early 2012. Given the direct debit facility left in place, the significant period of time over which Ivan Smith continued to pay for electricity supplied by Origin Energy is explained, but the responsibility for delay after recognition of a problem is not.
The statutory declaration sworn by Ms Joanna Lopez filed together with the statutory declaration of Ivan Smith adds very little.
In end result the application to recover the monies paid to Origin Energy in respect of the supply of electricity to Unit 30 at Ferny Avenue must fail. In so far as Origin Energy still claim an additional sum of $1,247.76 from Ivan Smith, no order is made concerning that nor the Dun and Bradstreet listing.