Sunshine Catering Supplies Pty Ltd trading as Cost Cutters Warehouse v Origin Energy Retail Ltd - [2014] QCAT 209

CITATION:

Sunshine Catering Supplies Pty Ltd trading as Cost Cutters Warehouse v Origin Energy Retail Ltd [2014] QCAT 209

PARTIES:	Sunshine Catering Supplies Pty Ltd trading as Cost Cutters Warehouse (Applicant)
v
Origin Energy Retail Ltd (Respondent)

APPLICATION NUMBER:

MCD1008/13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

26 March 2014

HEARD AT:

Southport

DECISION OF:

Member Favell

DELIVERED ON:

13 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The applicant pays the respondent $2,447.95 by 4pm 30 May 2014.

CATCHWORDS:

Where electricity supplied – whether electricity meter readings were actual or estimated – whether failure to comply with contractual requirements – whether Tribunal has jurisdiction to declare invoice invalid – order for relief from payment

Queensland Civil and Adminstrative Tribunal Act 2009 ss 11, 13

APPEARANCES and REPRESENTATION:

APPLICANT:

Sunshine Catering Supplies Pty Ltd trading as Cost Cutters Warehouse represented by Steve Krajsic

RESPONDENT:

Origin Energy Retail Ltd represented by Garth Hardy

REASONS FOR DECISION

In 2010, the applicant leased commercial premises at 112 Spencer Road, Nerang. It contacted Origin Energy Retail Ltd (the respondent) to supply electricity to the premises from 30 November 2010. The applicant could not have access to the premises until 13 December 2010 and except for installing some freezers, counters and shelving, it did not occupy the premises until 4 January 2011. It commenced trading on 10 January 2011.
In January 2011, the applicant received a tax invoice from the respondent in the sum of $444.33 for 1722kwh issued on 12 January 2011 for electricity usage between 30 November 2010 and 10 January 2011. The invoice indicated that the readings were an estimated summary. The applicant paid that account in full.
In February or March of 2011, the applicant inquired about sourcing cheap electricity and was quoted lower prices by another retailer. The applicant offered the respondent the opportunity to match the cheaper prices but the respondent chose not to so match the prices.
The applicant made arrangements to transfer the account to the new retailer effective on 6 April 2011. Arrangements were also made to replace the meters on the same day.
In May 2011, the applicant received a final bill summary from the respondent in the sum of $7,336.51 for 3331kwh issued 2 May 2011.
Because the applicant had operated similar businesses with similar equipment, the applicant considered the bill was grossly excessive and alleged that the invoice failed to comply with contractual and legislative requirements to indicate if the summary was based on estimated or actual meter readings.
The applicant says it also noticed that the supposed usage on each phase differed significantly to the usage shown on the first bill.
On 18 May 2011, the applicant contacted the respondent to request a review of the following:
a)    Substantial variations in usage across the three phases;
b)    The possibility of an incorrect reading on meter 5925703;
c)    Whether usage was based on actual or estimated readings.
He was assured that the bill would be reviewed and on 26 May 2011 he received from the respondent a Final Request: Unpaid Final Account issued 20 May 2011. That communication stated, ‘Unless payment is received by 30 May 2011, further collection action will be taken.’
The applicant contacted the respondent and was assured that collection activity would be placed on hold while the applicant’s concerns were investigated and on 18 July 2011 the applicant called the respondent. At that time he was told that there was no record of that previous call and was assured that complaints would be investigated and was quoted a reference #2955079.
On 1 August 2011, the applicant received a revised invoice from the respondent in the sum of $12,022.18 for 51,688kwh issued 25 July 2011.
Enclosed with the invoice was an adjustment (credit note) in the sum of $7,768.84 stating ‘These charges were reversed due to estimation incorrect.’ New readings were provided.
On 1 August 2011, the applicant contacted the respondents and spoke with a person who was unable to confirm if the new bill was based on estimated readings or actual readings. He was assured that someone from the department would call him within 24 hours regarding the readings. That did not occur and the applicant called the respondent again and spoke with a person named Jenny who told the applicant that the account would be placed on hold until 30 September 2011 whilst the complaints were investigated. He was quoted reference number #TWS2975296.
On 12 August 2011, the applicant received another Final Bill Summary from the respondent in the sum of $12,022.21 for 51,688kwh issued 8 August 2011. The bill included a series of what the applicant asserts are supposed meter readings.
The applicant has, at the hearing of this matter, provided the various bills and provided references to the readings of the various meters. It seeks to make a point that there were substantial variations in usage across each phase and what it calls an unbelievable suggestion that the estimated final reading and the actual final reading on meter 592570 could be identical.
The applicant contends that it is impossible for there to be such huge variations in usage to occur on individual phases and it says that that has been confirmed by an expert.
On 12 August 2011, the applicant called the respondent and spoke with John and asked to speak to a department manager, but was told that there would be a call-back within 48 hours. That did not occur.
On 16 August 2011, the applicant called the respondent and spoke with Will and again requested to speak with the department manager. He was transferred to Dave, a team leader, who told him the invoice issued between 2 May 2011 was based on estimated readings and the revised bill issued 8 August 2011 was based on actual readings. He was told that the complaints would be investigated. On 14 October 2011, the applicant received from the respondent a Final Request: Unpaid Final Account issued on 14 October 2011.
On 14 October 2011, the applicant contacted the respondent again and spoke with Bree. He was told that the department manager was unavailable but would contact him within 48 hours. That did not occur.
On 20 October 2011, the applicant again called the respondent and requested to speak with the department manager, Ms Dowell. Again he was told she was unavailable and was transferred to Dave, the team leader. On that occasion he was told by Dave that although it appeared the invoices to Sunshine Catering Supplies could be considered excessive, he was unable to offer a resolution.
The applicant sought assistance from the Energy and Water Ombudsman at Dave’s suggestion but was informed that the Ombudsman was unable to assist in the matter because the applicant’s usage exceeds 100mwh per year.
On 28 October 2011, the applicant called the respondent and spoke with Karen whom he told that the account was in dispute and he was quoted reference #23007848.
On 14 November 2011, the applicant contacted the Energy Sector Monitoring Department at the Department of Employment, Economic Development and Immigration (‘DEEDI’) and was told that his complaints would be investigated. He was told that he should write to the respondent to confirm that the account was in dispute. That was done on 15 November 2011.
On 15 November 2011, the applicant received an email from DEEDI which had been sent to Senior Customer Advocates at the respondent providing a spreadsheet to highlight the applicant’s concerns. The email asked for advice why the consumption had more than tripled and why the meter readings could go backwards on two occasions.
That email went unanswered until 15 December 2011 when Dean Gordon of the respondent’s Customer Relations Team advised that he had been assigned to investigate the complaint and he confirmed that:
a)    Origin has billed customer correct (sic) on amended read supplied by Energex;
b)    All meters were replaced on 6/4/2011 with a new meter 9197100;
c)    Origin no longer FRMP for this address.
The reply email said,
So we can resolve this complaint quickly, can I ask you to contact Energex and get them to urgently review the customer usage from 14/7/10 as it appear (sic) all readings are for this date have been amended and Energex have had meter issues and why meter was replaced on 6/4/11.
DEEDI sent such a request to Energex and on 15 December was informed that the respondent would arrange for a collection suspension to be placed on the account awaiting response from Energex.
On 20 December 2011, DEEDI received an email from Energex which claimed that the readings and usage on two of the three meters were correct but did not make mention of the usage on meter 592570.
On 30 April 2012, the applicant received a notice seeking to recover $12,022.21 from Pro Collections. On 3 May 2013, the applicant received a notice of intention to commence legal action.
On 17 July 2013, Mr Gordon from the respondent offered to reduce the bill by $2,842.85 as ‘good will credit for poor customer experience in resolving this complaint with Origin’ thus reducing the bill to $9,179.36.
The applicant rejected the offer.
The applicant asserts that Mr Gordon for the respondent acknowledged the following to be true and correct:
a)    The respondent supplied electricity to the previous occupier of the property and the usage between 30 November 2010 and 12 January 2011 was not dissimilar to the previous usage of the property.
b)    Readings from the new meters between 7 April 2011 and 5 October 2011 confirm the average daily usage was 368kwh per day.
c)    The respondent acknowledged that was considerably less than the 503.7kwh per day invoice for the period 10 January 2011 and 6 April 2011.
d)    The respondent confirmed, ‘We can see from your quarterly billing periods on your new meter the usage slowly starts to increase from 12 July 2011 meter reading and I expect this to occur when new equipment has been purchased.’
On 8 August 2011, the respondent offered to further reduce the bill as a good will gesture by $4,189.90 to $7,843.31. The applicant rejected the offer.
The applicant subsequently offered to pay the respondent $4,973.10 which it says was based on actual usage between April 2011 and October 2011 less the cost of operating the additional equipment installed during May 2011. The respondent rejected the applicant’s offer.
In an application to the Tribunal, the applicant seeks relief from payment of money by it in the sum of $9,574.26. It asks the Tribunal to declare invalid invoices from Origin Energy Retail Ltd to Sunshine Catering Suppliers Pty Ltd issued 2 May, 25 July and 8 August 2011 and to instruct Origin Energy Retail Ltd to issue a new invoice to Sunshine Catering Supplies in the sum of $2,447.95 as full payment.
The jurisdiction of the Queensland Civil and Administration Tribunal (‘QCAT’) in minor civil disputes is provided by section 11 of the QCAT Act. It applies when a relevant person, as provided for by section 12(3), makes a claim less than the prescribed amount. The amount involved in this application is less than the prescribed amount.
Relevantly here, the claim arises out of a contract between a consumer and a trader and the tribunal is able to decide the matter pursuant to section 13 of the Act. The Tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application. It may make the orders set out in section 13 which includes an order that a stated amount is not due or owing by the applicant to a stated person or by any party to the proceeding to the applicant and an order requiring a party to the proceeding to pay a stated amount to a stated person.
The Tribunal cannot make declarations or give instructions.
Here the Tribunal is concerned with determining what, if any, is properly owing to the respondent by the applicant.
Central to considering the issue is whether or not the respondent had properly billed the applicant.
The site did not have multiple-phase metering when it was billed by Origin. It had three separate meters: 592570, 592571 and 592572. The applicant contended that depending on how the building was built, those meters may serve individual floors, different offices or different machinery. That would explain different usage throughout each meter.
The applicant in my view, in a logical way, has sought to contest the accuracy of the charges by the respondent. The arguments advanced on behalf of it seem to me to be logical and in part commonsense. In part it was a comparison on actual usage at a later stage.
I have been provided with what purports to be a standard retail agreement, terms for electricity from Origin. Clause 5 of that document deals with billing and Clause 10 deals with paying the bill. Clause 11 deals with meters and Clause 12 deals with overcharging and undercharging. Central to the billing is the amount of electricity provided in a particular billing cycle. The agreement contemplates that the bill for electricity sold during the billing cycle would be taken from the information obtained from reading the meter or otherwise in accordance with the electricity industry code.
The various bills provided to the applicant assert usage and readings but as must be apparent from the differing bills, little confidence could be assured when there were obvious changes. There was no evidence of actual readings apart from assertions in the bills. During the hearing the applicant provided specifications for various fridges which showed daily usage of power by them. The evidence given in that regard on behalf of the applicant seems to me to corroborate the concerns of the applicant and its assertion of likely usage.
On balance, I am not satisfied that the bills rendered by the respondent to the applicant were correct and based on the actual power usage. The respondent billed on data supplied by Energex but there was no evidence provided that the data supplied by Energex was indeed correct. The witness called on behalf of the applicant in my view was credible in what he had to say concerning the usage by the equipment which was at the premises and the subsequent consumption and fluctuations in consumption seem to me to be logical.
The possible consumption set out in Item M of the material tendered in my view is a fair and equitable method of determining what the likely consumption was. In my view it is appropriate to order that the applicant pay the respondent $2,447.95 as full payment for the claimed electricity used by 4pm 30 May 2014 and treat the earlier claims for payment as void.