Swan v The Energy People Pty Limited ACN 089 534 403 (Appeal)
[2021] ACAT 46
•11 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SWAN v THE ENERGY PEOPLE PTY LIMITED ACN 089 534 403 (Appeal) [2021] ACAT 46
AA 30/2020 (XD 828/2019)
Catchwords: APPEAL – civil dispute – installation of air-conditioning and hot water units at appellant’s residence – claims of damage from incorrect installation – some matters resolved at hearing before Original Tribunal – consent orders made – remaining application dismissed – appeal against decision in relation to alleged damage to roof capping, asbestos disturbed by hot water system installation – whether evidence that installer damaged roof capping – appeal allowed in part
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Australian Consumer Law ss 54, 55, 56, 60, 61, 64, 236
Cases cited:CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Jones v Dunkel (1959) 101 CLR 298
Swan & Anor v Residential Reports Pty Ltd ACN 609 880 122 [2021] ACAT 7
Tribunal:President G Neate AM
Member H Selby
Date of Orders: 11 June 2021
Date of Reasons for Decision: 11 June 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 30/2020
(XD 828/2019)
BETWEEN:
TIMOTHY LEONARD SWAN
Appellant
AND:
THE ENERGY PEOPLE PTY LIMITED ACN 089 534 403
Respondent
APPEAL TRIBUNAL: President G Neate AM
Member H Selby
DATE:11 June 2021
ORDER
The Tribunal orders that:
1.The appeal is allowed in part.
2.The Energy People Pty Limited ACN 089 534 403 is to pay Mr Swan the sum of $1,183.50 within 28 days, comprising:
(a) $600 for the cost of repairing ridge capping on Mr Swan’s house;
(b) $583.50 for the filing fee to bring the appeal.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
REASONS FOR DECISION
On 4 July 2019, Timothy Leonard Swan lodged a civil dispute application (XD 828 of 2019) with the ACT Civil and Administrative Tribunal. He sought the sum of $7,357.14 from The Energy People Pty Limited ACN 089 534 403 (The Energy People) in relation to the installation by The Energy People of a ducted heating and cooling system and an instantaneous hot water system at Mr Swan’s residence on 18 April 2019.
Mr Swan alleged, in summary, that:
(a)the air-conditioning system was not installed correctly and required reinstallation, and there was damage associated with the installation including the breaking of in excess of 12 roof tiles (which the installers initially repaired with silicone) and cracking to ridge capping;
(b)because of the delays in installing the air-conditioning unit, Mr Swan lost the benefit of a $500 discount from the quoted cost of painting the roof of his house; and
(c)the hot water system was installed poorly and required significant and costly reparation.
An amended civil dispute application was lodged on 8 October 2019. Mr Swan claimed $6,237.50 and sought specified orders in addition to the payment of the amount claimed. The application stated that, following a conference of the parties before the tribunal on 17 September 2019, Mr Bunn on behalf of Mr Swan attempted to communicate with The Energy People to achieve a settlement, but settlement had not been achieved.
After a split two-day hearing, in a reserved decision on 11 September 2020 a senior member of the tribunal (the Original Tribunal) ordered that Mr Swan’s application be dismissed.
Mr Swan has appealed against the Original Tribunal’s decision. His original application for appeal lodged on 6 October 2020 was superseded by an amended application for appeal lodged on 26 October 2020 in which he provided details of “a number of errors of fact and/or evidence” that he said were made by the Original Tribunal in arriving at its order.
He sought the following orders:
(a)The orders XD 828 of 2019 are set aside.
(b)The respondent pay the applicant the amount of $5,569 which comprises the following amounts:
(i) Roof repair $1,650
(ii) Asbestos removal $2,750
(iii) Plumbing repairs $1,169
(iv) Total $5,569
(c)The respondent pays the applicant’s costs in this matter.
(d)Such other orders as the Tribunal sees fit.
Consistently with directions made by the tribunal on 6 and 27 November 2020, each party gave the other party and the tribunal specified documents, and the appeal proceeded as a review of the decision of the Original Tribunal. The appeal was listed to be heard on 15 December 2020, but that date was subsequently vacated and the matter is to be determined in chambers.
The hearing before the Original Tribunal
The hearing before the Original Tribunal took place on 26 November 2019 and 13 July 2020. On the first day, having heard from Mr Peter Bunn (who also appeared as the representative of his son-in-law Mr Swan), and from Mr Tom Barron, Mr Brad Ball and Mr Gary Finnigan for The Energy People, the Original Tribunal adjourned the hearing and made orders for The Energy People to assess the hot water system and the air-conditioning system and provide Mr Swan with a written proposal for rectification. Further orders were made on 18 February 2020 and 26 June 2020.
On 13 July 2020, the second day of the hearing, Mr Bunn advised the Original Tribunal that everything was still in dispute between the parties. The Original Tribunal heard from him and Mr Swan, as well as Mr Barron and Mr Ball. The parties provided a range of documents to the Original Tribunal at each stage of the hearing, including quotes, copies of email correspondence, photographs, timeline of events, an indicative floor plan of Mr Swan’s house showing air conditioning and ceiling vent locations, statements and published documents about working with asbestos, air conditioning installation, and statements by people including Mr Bunn and Mr Tom Barron (a director of The Energy People) and statutory declarations by Mr Mitchell Moise (who installed the hot water system).
By orders dated 13 July 2020, the Original Tribunal ordered by consent of the parties that The Energy People carry out specified works at a mutually convenient time with Mr Ball personally supervising the works. The Original Tribunal’s decision on the balance of the application in relation to damage to roof ridge capping and the installation of the hot water system was reserved to be delivered orally on 11 September 2020.
What the Original Tribunal decided
In oral reasons for decision delivered on 11 September 2020, the Original Tribunal acknowledged that there were genuine issues with regard to the installation of the air-conditioning and the hot water system.[1] The Original Tribunal also noted that a number of the matters had been resolved.
[1] Transcript of proceedings 11 September 2020 page 3
Mr Swan had raised two issues in relation to the installation of the air-conditioning system. The first, that The Energy People had not installed it in accordance with the manufacturer’s instructions and as a result the air-conditioning system did not work properly,[2] was resolved by consent orders on the second day of the hearing.
[2] Transcript of proceedings 11 September 2020 page 3
The second issue was whether The Energy People’s agents had damaged Mr Swan’s roof capping in the course of installing the external components of the air-conditioning system on his roof and, if so, whether Mr Swan was entitled to payment for the estimated cost of repairing the damage ($1,650) and a sum for the loss of a roof paint discount ($500) which he incurred because he was unable to paint the roof until it was repaired and he lost the opportunity to take advantage of the limited offer. Mr Swan did not produce evidence to substantiate the second component of the claim, which was disallowed.[3]
[3] Transcript of proceedings 11 September 2020 page 4
The Original Tribunal decided that, in the absence of the installers being given an opportunity to present their version of events, there was insufficient evidence that they had admitted damaging the ridge capping, or any admission. The Original Tribunal considered photographic and oral evidence in relation to the cracks in the ridge capping joints at multiple locations as well as more widespread damage to roof tiles. However, in the absence of evidence from the installer or from an independent plumber or anyone with direct knowledge of what led to the damage to the ridge capping, the Original Tribunal held that the cause of the damage remained speculative. Because the Original Tribunal was not satisfied that Mr Swan had discharged the onus of proving that the damage was caused by the respondent’s agent, this aspect of the claim was dismissed.[4]
[4] Transcript of proceedings 11 September 2020 pages 4-5
In relation to the new hot water system, Mr Swan argued that it was not installed in an acceptable configuration and that as a result three problems emerged.[5]
[5] Transcript of proceedings 11 September 2020 page 6
First, the respondent’s plumber had to drill a hole through the asbestos sheeting in the laundry floor to accommodate the hot water line and, in doing so, disturbed asbestos and created a hazard. That action had prevented further renovation work until the hazard was remedied. In accordance with directions made by the Original Tribunal on the first hearing day, Mr Swan produced an asbestos material assessment report by L&D Consulting which confirmed the presence of non-friable asbestos in the laundry floor sheets and the wall sheets of both the laundry and the bathroom. The Original Tribunal noted that the report indicated that the state of the laundry floor was fair and posed a low risk despite the disturbance caused by The Energy People’s agent.[6]
[6] Transcript of proceedings 11 September 2020 pages 6-7
The second problem was that the pipes from the old hot water system (which was removed) were looped and remained protruding from the laundry wall, preventing the installation of cupboards as planned by Mr Swan. They were also unsightly.[7]
[7] Transcript of proceedings 11 September 2020 page 6
The third problem was that the hot water was required to travel an excessive distance from the heating unit to the taps in the bathroom and the laundry, causing an unacceptable delay in the delivery of the hot water system. There was no dispute that the lag in the delivery of the hot water system to the shower was excessive, and that it was caused by the excessive length of the line connecting the heating unit to the hot water taps. However, the Original Tribunal was satisfied that the problem with installing a more direct line was caused by the particular features of construction and plumbing present in Mr Swan’s house. In particular, the plumbing lines present in the house prior to the installation were not suspended under the floor and thus easily accessible. Instead they were located in the wall cavity behind walls that had asbestos sheeting on them. Accessing the plumbing in order to create a more direct hot water feed line would require the removal of asbestos sheeting in the walls of at least the bathroom.[8]
[8] Transcript of proceedings 11 September 2020 pages 6, 7
These problems were not identified until the day of installation. The Original Tribunal considered that the failure to detect the problems earlier was the result of a failure in The Energy People’s processes, and that the problems could have been avoided if The Energy People had conducted an on-site inspection or obtained evidence from the customer regarding the construction of the house before the date of the scheduled installation. Had that occurred, the parties would have had an opportunity to find an acceptable alternative before entering into a contract.[9]
[9] Transcript of proceedings 11 September 2020 page 7
The Original Tribunal was not convinced that The Energy People exercised the required care and skill or ensured the proposed services were fit for the stated purpose prior to the installation date. However, the Original Tribunal considered that what happened on the installation date was “critical”. Of particular importance was the discussion between Mr Bunn and The Energy People’s agents, and the installation checklist which Mr Bunn signed on that date. Having considered evidence from Mr Bunn, Mr Moise (who installed the hot water system) and Mr Barron, the Original Tribunal preferred The Energy People’s version of events as it was more consistent with the installation checklist which was signed by Mr Bunn and which included the annotation “New gas from meter long run long water run connected at laundry run through under floor. As accepted By customer.” The Original Tribunal concluded that Mr Bunn, acting on behalf of Mr Swan, upon becoming aware of the problem with installing the hot water system in the way the parties had originally planned, directed The Energy People to proceed with the installation in the configuration actually adopted with full knowledge of the consequences of doing so. Further, the evidence did not support a finding that the installation was not performed with due care and skill. Accordingly, it was not open to Mr Swan to seek compensation.[10]
[10] Transcript of proceedings 11 September 2020 pages 7-8
The Original Tribunal also noted that it was a term of the quote that the customer was responsible for the identification and removal of asbestos necessary to perform the works. The removal of asbestos was not work expressly included in the quote. Nor was it work for which The Energy People was licensed to perform. When Mr Moise arrived at the agreed time with materials and tools to complete the work, a binding contract had already been formed. It consisted of the quote and the (at least implied) consent of Mr Swan to allow the installation to commence. Consequently, even if Mr Swan had been entitled to compensation as a result of the shortcomings in the hot water system, the Original Tribunal concluded that he would not have been entitled to the cost of removing the asbestos to allow the work to be conducted.[11]
The issues on appeal
[11] Transcript of proceedings 11 September 2020 page 8
The alleged errors in the Original Tribunal’s decision, and hence issues in the appeal, were identified in a detailed annexure to Mr Swan’s amended application for appeal lodged on 26 October 2020. In summary Mr Swan contended that:
(a)the Original Tribunal’s reasons for decision contained statements in relation to the installation of the air-conditioning system which “need to be corrected on record”;
(b)the Original Tribunal was in error in dismissing the application for the cost of repairs of ridge capping by reference to matters not in evidence, by giving weight to unqualified and unsupported statements of opinion about the state of the roof, and by insufficient reference to photographs showing cracks in the ridge capping;
(c)in relation to the installation of the hot water system, the Original Tribunal based its decision on a misunderstanding of Mr Swan’s complaint, which was that the system installation was not fit for the particular purpose that Mr Swan made known before purchase and before The Energy People’s provision of its quote and that the installation was not carried out with due care and skill.
(d)the Original Tribunal was in error in finding that:
(i) it was a term of the quote that the customer (Mr Swan) was responsible for the identification and removal of asbestos to perform the works;
(ii) the removal of asbestos was not expressly included in the quote and was not work which The Energy People was licensed to perform, and hence Mr Swan would not have been entitled to the cost of removing the asbestos to allow the work on the hot water system to be conducted;
(e)as well as considering separately the installation of the air-conditioning system and the hot water system, the Original Tribunal should have considered the actions, conduct and evidence of The Energy People as a whole so as to gain a clear picture of their conduct under their Australian Consumer Law obligations;
(f)Mr Swan was denied natural justice or procedural fairness by being deprived of the opportunity to cross-examine Mr Moise (and possibly Mr Jones) on the second day of the hearing because they were not present at the hearing.
It is not necessary or appropriate on appeal in this case for the Appeal Tribunal to focus on alleged errors in some statements in the reasons of the Original Tribunal. Rather, what follows deals with the substantive grounds of appeal. Any significant errors made by the Original Tribunal will be dealt with there.
The relevant legislation
Early in the hearing, the Original Tribunal outlined what she understood to be the elements of Mr Swan’s claims that included alleged breaches of one of the warranties under the Australian Consumer Law and that The Energy People did not provide services with due care and skill. The Original Tribunal expressly referred to section 60 of the Australian Consumer Law. She also referred to the need for a consumer to give the provider an opportunity to rectify the situation,[12] and outlined the rights of a consumer where there is a breach of a statutory warranty.[13]
[12] Transcript of proceedings 26 November 2019 pages 6, 9, 14-15, 19, 21, 24 and 31
[13] Transcript of proceedings 26 November 2019 page 14
In the course of submissions made on behalf of Mr Swan on the second day of hearing before the Original Tribunal, Mr Swan’s claims were said to be made under sections 54, 55, 56, 60, 61 and 64 of the Australian Consumer Law.[14]
[14] Transcript of proceedings 13 January 2020 pages 114-115
Those sections deal with the following matters:
(a)Section 54: Guarantee as to acceptable quality.
(b)Section 55: Guarantee as to fitness for any disclosed purpose etc.
(c)Section 56: Guarantee relating to the supply of goods by description.
(d)Section 60: Guarantee as to due care and skill.
(e)Section 61: Guarantees as to fitness for a particular purpose etc.
(f)Section 64: Guarantees not to be excluded etc. by contract.
Apart from brief references to those sections, Mr Swan’s submissions did not include detailed arguments applying those sections to the circumstances of his claim. However he did submit that The Energy People had failed under the guarantee of due care and skill, and the guarantee of the fitness of the hot water system for purpose. Further, he submitted, The Energy People could not contract out of their statutory obligation to install the air-conditioning system and the hot water system with “due care and skill.”
Sections 60, 61 and 64 provide:
Subdivision B—Guarantees relating to the supply of services
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b)the consumer makes known, expressly or by implication, to:
(i)the supplier; or
(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
Subdivision C—Guarantees not to be excluded etc. by contract
64 Guarantees not to be excluded etc. by contract
(1) A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:
(a)the application of all or any of the provisions of this Division; or
(b)the exercise of a right conferred by such a provision; or
(c)any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.
(2) A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.
We note, for completeness that section 236(1) of the Australian Consumer Law provides:
Actions for damages
(1)If:
(a)a person (the claimant ) suffers loss or damage because of the conduct of another person; and
(b)the conduct contravened a provision of Chapter 2 or 3;
the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
The parties’ submissions
The appellant’s submissions
Written submissions were made for Mr Swan in the annexure to his amended application for appeal lodged on 26 October 2020 and in his written submissions lodged on 14 December 2020 in reply to The Energy People’s submissions. The submissions made on 26 October 2020 are summarised below.
First, Mr Swan submitted that the Original Tribunal erred by deciding that, in the absence of the installers being given an opportunity to present their version of events about the alleged damage to the ridge capping, there was insufficient evidence to find that they had made the admission alleged by Mr Bunn or any admission at all. Rather, it was open to the Original Tribunal to find that The Energy People had not provided evidence to deny the statement reported by Mr Bunn.
Further, he submitted, the Original Tribunal should not have relied on Mr Ball’s statement, based on 20 years of experience in the installation of air conditioning, that the natural deterioration in mortar joints in ridge capping of the type visible in the photos provided by Mr Swan was common. Mr Ball presented no evidence that he was qualified to determine what is “natural deterioration in mortar joints” and his evidence should be considered of little probative value. Although Mr Ball stated that he did a site inspection, he said that he did not identify problems with the ridge capping prior to commencing work “because every roof has damage to the ridge cap.”[15] His explanation was made without any evidence.
[15] Transcript of proceedings 13 July 2020, page 141
Mr Swan also referred to the following photographic evidence with regard to his claim that The Energy People caused damage to the ridge capping: four photographs in his civil dispute application – amended, filed on 8 October 2019,[16] three photographs in his Material in Reply filed on 4 November 2019,[17] and 25 photographs in his Additional Material in Reply filed on 13 March 2020.[18]
[16] Annexure marked 1.6.2 (pages 32-34)
[17] Annexure marked MIR 12 (pages 19-21)
[18] Annexure marked AMR – Annexure 1 (pages 4-28)
In essence, Mr Swan submitted that the Original Tribunal did not consider the full evidence before it and considered matters not in evidence, with the result that the decision was made on “mistaken evidence.”
Second, Mr Swan submitted that the Original Tribunal appears to have embraced The Energy People’s assertion that the “installation checklist” had the effect of amending its quotation and confirmed Mr Swan’s acceptance of that. However, the Original Tribunal should have considered the timing of events around the “installation checklist.” Because the “installation checklist” was not discussed or requested to be signed until completion of the work, it cannot be considered as an accepted amendment to the original quotation (on which Mr Swan based his acceptance) or Mr Swan’s direction to The Energy People to proceed with the alternate installation. Further, the “installation checklist” did not show any acceptance or acknowledgement that the installation of the hot water system was not as originally stated by The Energy People and so could not be considered as an acceptance of the variation to their quotation and/or representation of the hot water system installation, nor Mr Swan’s direction to The Energy People to proceed with the altered installation.
Mr Swan also submitted that the Original Tribunal was wrong in preferring the evidence of The Energy People (particularly Mr Moise) because Mr Moise was not made available for cross-examination on his two statutory declarations. The Original Tribunal also erred by finding that when Mr Moise attended the site a binding contract had been formed (comprising the quote provided on behalf of The Energy People and the at least implied consent of Mr Swan by allowing the installation to commence).
Rather, Mr Swan submitted, Mr Moise commenced work without conducting a preparatory site inspection and the Original Tribunal incorrectly interpreted the facts of the contract that was confirmed by Mr Swan in allowing The Energy People to commence the works in respect of the installation of the hot water system.
Third, Mr Swan submitted that, at the time of The Energy People’s quote, he identified to The Energy People that there would be asbestos within the building due to its “construction age” and, having been informed of his understanding, The Energy People made no further enquiry of Mr Swan and did not carry out a site inspection. Consequently, Mr Swan submitted, The Energy People failed both the guarantee of due skill and care and the guarantee that the hot water system was fit for the purpose disclosed at the time of the quote.
Further, in his submission, the relevant term in the quotation (paragraph 13) is an unfair contract term in that it creates an imbalance between the parties. In particular, in the absence of The Energy People identifying exactly the area it needed to access to install hot water system, Mr Swan would not know where any asbestos might be or where testing would be required.
Fourth, Mr Swan submitted that the Original Tribunal appeared to have overlooked Mr Moise’s evidence about how he installed and connected water piping through a hole which he drilled in the laundry floor, which work involved drilling through asbestos and was unnecessary because another water inlet pipe was accessible. The work resulted in an unnecessarily long run for cold water to be supplied and showed that The Energy People’s installation of the hot water system was not carried out as represented to Mr Swan on 13 March 2019 nor with due care and skill. Further, Mr Moise’s evidence about drilling in an area where some tiles had lifted and bare boards could be seen was incorrect because there was photographic evidence of tile underlay sheeting which contained asbestos rather than bare boards. As someone who is required to hold asbestos awareness certification, Mr Moise should have identified the flooring material as tile underlay sheeting. Those circumstances must be contemplated when considering the reliability of his evidence as a whole and the level of care and skill he exercised in installing the hot water system.
The respondent’s submissions
The Energy People submitted that the appeal should be dismissed with no order as to costs.
First, in relation to the air-conditioning and damaged roof, The Energy People noted that Mr Swan could not appeal against the consent orders in relation to the air conditioning and was confined in his appeal to the purported damage to the roof of his house.
In summary, it was submitted that Mr Swan bore the onus of proving, on the balance of probabilities, that the damage to the roof was caused by The Energy People and that he had not done so. In support of that submission, The Energy People stated that:
(a)Mr Swan did not give evidence and did not call any person who was on the roof of his residence at the relevant time;
(b)Mr Bunn gave evidence that he was present on the day and saw a number of people on the roof in question, and indicated that a number of those persons admitted to him that they caused damage to the ridge capping but did not fix it;
(c)The Energy People denied that any person on the roof engaged by it admitted to causing damage;
(d)Mr Ball gave evidence on behalf of The Energy People and indicated that in his 20 or so years of experience with respect to installing air-conditioning systems he had been on plenty of roofs and the damage he saw to this particular roof was wholly consistent with general wear and tear and was commonplace;
(e)at the end of the first day of the hearing, the Original Tribunal appropriately directed Mr Swan that he may wish to commission an expert report with respect to the alleged damage to the roof;
(f)on the final day of the hearing, Mr Bunn indicated that a plumber had inspected the roof and advised him that cracking to it was recent and not consistent with general wear and tear;
(g)significantly, however, Mr Swan did not tender any expert report.
In the The Energy People’s submission, the Original Tribunal appropriately rejected Mr Bunn’s account of what was allegedly told to him by the plumber on the basis that it was hearsay evidence, and ultimately found that Mr Swan had not discharged his onus of proof. Accordingly, the Original Tribunal was obliged to make a finding of fact consistent with Mr Swan having failed to discharge his onus of proof and hence was obliged to dismiss this component of the claim. It follows that the appeal with respect to this issue should be dismissed.
Second, in relation to the asbestos removal, The Energy People submitted that it did not fully understand the ground of appeal. However, it thought that Mr Swan claimed the costs for asbestos removal on the basis that, because the installation of the hot water system required a hole to be drilled through asbestos sheeting, The Energy People was contractually obliged at its own expense to completely remove the asbestos. In its submission:
(a)such a claim does not make any sense as a matter of contract law and simple commercial and economic reality;
(b)The Energy People made it clear at the hearing that, under the current laws, it was not liable for any removal of any asbestos sheeting and (as stated on the back of the quote) it is for the property owner to have all asbestos removed;
(c)the Original Tribunal had properly found that Mr Swan would not have been entitled to recover the cost of removing the asbestos to allow the work to be conducted because:
(i) when Mr Moise arrived to complete the job a binding contract had already been formed which consisted of the quote and the implied consent of Mr Swan which was evident by his allowing the installation to commence;
(ii) it was a term of the quote that the customer was responsible for the identification and removal of asbestos necessary to perform the work;
(iii) the removal of asbestos was not work that was expressly included in the quote; and
(iv) it was not work for which The Energy People was licensed to perform.[19]
[19] Transcript of proceedings 11 September 2020 page 8
In The Energy People’s submission, there was nothing controversial with respect to the factual findings made by the Original Tribunal. They were completely supported by the evidence and it was never put to any witness that there was a contract for the removal of asbestos. Therefore, this ground of appeal should be dismissed.
Third, in relation to the plumbing repairs, The Energy People readily acknowledged that there were problems with respect to the installation of the hot water system, and that the Original Tribunal was not convinced that The Energy People exercised the required care and skill, or ensured that the proposed services were fit for the purpose prior to the installation date.[20] However, The Energy People submitted that what is significant for this part of the appeal is what the Original Tribunal accepted occurred on the day on which the hot water system was installed in relation to “the issue … that that configuration was unacceptable.”[21] The Original Tribunal preferred The Energy People’s version of the conversation between Mr Bunn, Mr Moise and Mr Barron (which version was consistent with the annotation on the installation checklist signed by Mr Bunn). She concluded, on the balance of all the evidence, that:
Mr Bunn, on the day of the installation, acting on behalf of Mr Swan, upon becoming aware of the problem with installing the hot water system in the way that the parties had originally planned, directed the respondent to proceed with the installation in the configuration actually adopted with full knowledge of the consequences of doing so.
Having agreed to accept the less than ideal outcome which resulted because on balance it suited his purposes, it is now not open to the applicant to seek compensation. The evidence does not support a finding that the installation which was ultimately done in accordance with the amended configuration was not performed with due care and skill.[22]
[20] Transcript of proceedings 11 September 2020 page 7
[21] Transcript of proceedings 11 September 2020 page 8
[22] Transcript of proceedings 11 September 2020 page 8
The Energy People submitted that, if Mr Swan was not satisfied with the proposed reconfiguration, he should not have expressly authorised the work to proceed. The finding of fact by the Original Tribunal was uncontroversial, although the respondent noted that Mr Moise was not present on the second day of the hearing and could not have been asked any questions on behalf of Mr Swan. However, the respondent submitted, the Original Tribunal would have come to the same conclusion in any event. Consequently, this ground of appeal should fail.
Finally, The Energy People responded to a suggestion in Mr Swan’s written submission that he was not afforded natural justice or procedural fairness in that he was not able to cross-examine or put questions to Mr Moise concerning the two statutory declarations made by Mr Moise on which The Energy People relied.
The Energy People submitted that Mr Swan was not denied procedural fairness because:
(a)he did not notify The Energy People in writing or otherwise that he wanted Mr Moise to be available for cross-examination and, as a consequence, The Energy People did not know he was required;
(b)Mr Swan did not indicate in his comprehensive application that his representative wanted to cross-examine Mr Moise;
(c)Mr Moise was present at the first day of the hearing and was involved in the hearing of the matter;[23]
(d)Mr Swan’s representative, Mr Bunn, is familiar with the tribunal’s jurisdiction, and appropriately and most competently represented Mr Swan during the course of the hearing.
[23] See transcript of proceedings 26 November 2019 page 3
Consequently, it was submitted, the Tribunal can find that a conscious decision was made by Mr Swan not to put The Energy People on notice that Mr Moise was required for cross-examination. Mr Swan is bound by the way his representative conducted the hearing and it is now impermissible to raise the “inability” to cross-examine a witness on an appeal. On that basis, it follows that Mr Swan was not denied procedural fairness and this ground of appeal must also fail.
In the alternative, the respondent submitted that, if this Tribunal forms the view on appeal that procedural fairness was not afforded to Mr Swan, that denial would amount to an error of law and the Tribunal might be inclined to uphold the appeal on the limited basis of remitting the matter to the same Senior Member for the purpose of the appellant cross-examining Mr Moise.
The appellant’s reply to the respondent’s submissions
Mr Swan made detailed written submissions in response to The Energy People’s submissions. Aspects of the document clarify or query dates, citations, the status of a document and other matters of form such as typographical errors. For present purposes, we summarise only the submissions that went to substantive matters in issue between the parties.
Mr Swan submitted that his original civil dispute application (lodged on 4 July 2019) and subsequent amended application (lodged on 8 October 2019) were made under the Australian Consumer Law (as noted by the Original Tribunal[24]) and the warranties which the Australian Consumer Law provides cannot be put aside by contract.
[24] Transcript of proceedings 26 November 2019 page 9
In relation to the roof/ridge capping issue, Mr Swan submitted that:
(a)The Energy People attempted to create facts by misrepresentation in the sense that they did not disclose that a function of the purchase of the air-conditioning system was that an unspecified number of persons would climb up and remain on the roof for a period of time. That was never identified by The Energy People verbally at the time the quotation was provided and was never identified in the accepted quotation for the air-conditioning system;
(b)Mr Swan did not call as a witness any person who was on the roof at the relevant time because The Energy People refused to identify their contractors and/or employees who worked on the roof while installing the air-conditioning system; and
(c)despite what was stated in The Energy People’s submission, it acknowledged during the hearing that it had, via contractors and/or employees, damaged roof tiles when carrying installing the air-conditioning system (which tiles were replaced with tiles supplied by Mr Swan).
In relation to the installation of the hot water system, Mr Swan:
(a)referred to the plumber’s quotation of $1,169 for the required rectification works to the hot water system annexed to his amended civil dispute application filed on 8 October 2019 (which quote included the statement “For us to carry out this work the asbestos will first have to be removed from the laundry and bathroom walls as the pipes are not accessible as the pipes have been run in the walls and not under the house. The asbestos will have to be removed by a qualified person and NOT by us.”); and
(b)submitted that there was not any logical basis for The Energy People’s submission that irrespective of whether Mr Moise was cross-examined the Original Tribunal would have come to the same conclusion.
In relation to the issue concerning asbestos removal, Mr Swan submitted that the asbestos removal is required as a direct result of the incorrect installation of the hot water system. Therefore it is part of the rectification works required, as detailed in his amended civil dispute application filed on 8 October 2019.
He described The Energy People’s submissions on this issue as “blatantly disingenuous” and as an apparently deliberate attempt to confuse the Appeal Tribunal.
In relation to whether Mr Swan was afforded natural justice or procedural fairness, he noted that, although The Energy People had a number of people attend the first day of the hearing (apparently to give evidence on its behalf), they were not called as witnesses. Some of them were not present on the second day of the hearing. In his submission:
(a)The Energy People’s submission that he did not want Mr Moise to be available for cross-examination was “deliberately misleading” in that The Energy People knew, or should have known, that any evidence presented by them was entitled to be tested by the parties (as was demonstrated by having him present at the hearing on 26 November 2019) and Mr Swan was entitled to believe that The Energy People would present Mr Moise on the second day of the hearing, on 13 July 2020;
(b)based on the attendance of Mr Moise and Mr Jones on the first day of the hearing, Mr Swan “rightly expected” that they would be present on the second day of the hearing, and The Energy People made no effort to inform the parties that it would not present either Mr Moise or Mr Jones on the second day the hearing;
(c)the Original Tribunal provided no opportunity for Mr Swan to ask or apply to cross-examine the author of evidence provided by statutory declaration, even though:
(i) he requested or stated the need for cross-examination of Mr Moise and Mr Jones at the hearing on 13 July 2020; and
(ii) the Original Tribunal recognised the benefit of one party having an opportunity to cross-examine a person who had prepared a statutory declaration for the other party, while noting that Mr Moise was not present at that hearing;[25]
[25] See Transcript of proceedings 13 July 2020 pages 153-164
(d)it is not relevant for The Energy People to submit that Mr Swan was not “unrepresented” because Mr Bunn appeared for him by way of a power of attorney. Mr Bunn is Mr Swan’s father-in-law who acted for Mr Swan (without any legal qualifications or training) because Mr Swan was not always available to attend the hearings; and
(e)consequently, the Appeal Tribunal should not adopt the conclusion that Mr Swan made a conscious decision not to put The Energy People on notice that Mr Moise was required for cross-examination.
Consideration and conclusion
The roof capping issue
An initial issue about the damaged tiles was resolved by replacing those tiles at the time the air-conditioning system was installed.[26] The remaining issue in relation to the roof was whether The Energy People is liable for alleged damage to ridge capping on the house, in the context that (according to Mr Bunn) the house and hence the roof was approaching 50 years of age.[27]
[26] Transcript of proceedings 26 November 2019 pages 32-33, 13 July 2020 pages 133-134
[27] Transcript of proceedings 13 July 2020 page 126
The two roofing issues were described in a detailed message dated 27 June 2019 sent by Mr Bunn (on behalf of the Swans) to Mr Ball. Mr Bunn wrote:
When your installers were installing the condenser unit and duct work they broke, in excess of 12 roof tiles and your installers initially “repaired” the broken tiles with silicon – this was identified (and acknowledged by your installers) whilst the installers were still on site, which upon identification I had to request correct repair of the tiles (i.e. replacement) to which the Swans had to supply the required tiles. It was also noted at the time that your installer had caused cracking in the ridge capping almost the full length of the roof – e.g. refer attached Photos 4-7. To identify the correct repair for this damage the Swans have had a qualified Roofing tradesman examine the said damage and he advises that to properly repair this damage it requires the ridge capping to be removed and re-laid with an estimate of ~$1200-$1400.[28]
[28] Email to Mr Ball from Mr Bunn dated 27 June 2019 at [1.6]
The Energy People was on notice of the roof capping aspect of the claim from the outset.
The quote provided by Premier Roofing licensed roof tilers dated 28 June 2019 described the work required as re-bed ridge, re-bed all gable-ends, replace broken tiles (20 approx.), point bridging with flexi-point (light brown), removal rubbish, clean gutters. The total quoted cost including GST was $1,760.
Mr Swan’s claim for payment in relation to the alleged damage to the roof capping was identified in:
(a)his civil dispute application, dated 4 July 2019, which contended that the installers “had caused cracking in the ridge capping almost the full length of the roof” and referred to a qualified roofing tradesman (Premier Roofing) having examined that damage and advised that to properly repair it required the ridge capping to be removed and re-laid at the cost of $1,650;[29] and
(b)the second amended civil dispute application, dated 8 October 2020, which repeated “It was also noted at the time that the AES installers had caused cracking of the ridge capping almost the full length of the roof” and referred to the Premier Roofing quote.
[29] See paragraph 1.5 of the civil dispute application, photographs at Annexure is 1.5.1-1.5.4 and the quote dated 28 June 2019 at Annexure 1.6 , see also paragraph 1.6 of the letter from Mr Dunn to Mr Ball dated 27 June 2019
The Energy People resisted the claim from the outset. Its response to the civil dispute application, lodged on 8 August 2019, included a statement from Mr Ball disputing the claim of damage to the roof. It continued, “The photos show the damage to be quite old and the roof seems to be in need of repair, which is typical for a house of its age.”
On the first day of the hearing before the Original Tribunal, Mr Bunn stated that there was movement on the roof which, in addition to tile damage, disturbed the ridge capping sufficiently for joints on the ridge capping to be cracked. He also stated (apparently on the basis of a conversation with the previous owners of the house) that the ridge capping was re-laid and re-cemented about three years earlier when the roof tiles were painted.[30] Mr Bunn also gave evidence that he had been on the roof about a week before the installation of the air conditioning system to inspect the chimney which was to be removed. In the course of that inspection he looked at the ridge which runs along the middle of the roof for its full length. Indeed, he “looked at everything on the roof” including the tiles for lichen and the gutters for dirt.[31]
[30] Transcript of proceedings 26 November 2019 page 33
[31] Transcript of proceedings 26 November 2019 pages 36-38
Mr Ball stated that he was not aware of an issue with the ridge capping at the time of the installation of the air-conditioning system.[32] He was first notified of the issue by email.[33] A quote from Premier Roofing dated 28 June 2019 noted that ridge capping work was required.[34]
[32] Transcript of proceedings 26 November 2019 page 36
[33] Transcript of proceedings 26 November 2019 page 33
[34] Transcript of proceedings 26 November 2019 page 35. See Annexure 1.6 to the civil dispute application lodged on 4 July 2015
Mr Finnegan, a director of The Energy People, told the Original Tribunal that the photographs provided by Mr Bunn showed “the cracking of the ridge capping but it shows the roof in severe disrepair as well … It looks like those cracks have been there for a long time. But we haven’t been able to get in and have a look at it.”[35]
[35] Transcript of proceedings 26 November 2019 page 39, see also page 7
At that stage in the proceedings, the Original Tribunal indicated that if the issue could not be resolved by the parties, she would direct that the applicant provide a report from a roofer to say that the damage was consistent with other tiles being replaced and give the location of the tiles in order to establish whether they were near the ridge cap.[36] Accordingly, on 26 November 2019, she ordered Mr Swan, among other things, to provide The Energy People and the Tribunal with “a written report from a qualified roofer as to the condition of the ridge capping if the condition is found to be defective in nature, the likely cause of such defect and the cost of rectification.”
[36] Transcript of proceedings 26 November 2019 page 39, see also pages 73, 75
The additional material provided by Mr Swan in February 2020 included a covering document which stated:
Unfortunately the roofer has been unable to attend the property to date, and provide the report as ordered, due to the excessive workload he is currently under following the hailstorm in Canberra 20 January 2020. The applicants are advised that the roofer believes that he would not be able to provide the written assessment until sometime “early March [2020]”.[37]
[37] Applicant’s additional material in replay at [2] 5(a)
Mr Swan’s additional material in reply provided on 13 March 2020 repeated that statement and advised that on 10 March 2020 the proprietor of Premier Roofing telephoned Mr Bunn about the applicant’s request for his further attendance at the subject property. After Mr Bunn explained the need for a report from him, the proprietor apparently stated that he has a policy of not getting involved in providing reports for legal actions and, despite Mr Bunn subsequently offering to cover all of Premier Roofing’s costs and wages for the report, the proprietor confirmed his unwillingness to be involved. The document also stated that Mr Bunn had telephoned a further three licensed roof tilers, none of whom were interested in getting involved in providing reports to any court.
The additional material included photographs said to be taken in the middle of July 2019 of 25 damaged ridge cap overlays and an indicative floor plan of Mr Swan’s house showing the indicative locations of the air-conditioner components installed by the respondent, as well as an aerial photograph of the tiled roof.[38]
[38] Transcript of proceedings 13 July 2020 page 97
When the hearing resumed on 13 July 2020, more than eight months later, the issue remained outstanding, despite an offer by The Energy People to pay $400 without admission of liability.[39]
[39] Transcript of proceedings 13 July 2020 pages 93-94
At that stage of the hearing, Mr Bunn referred to page 29 of the document in the additional material which shows the locations from which the photographs were taken.[40] He described the location of vents into rooms, duct work and other units on the roof or roof cavity. The Original Tribunal observed that the vents are all over the roof and around the perimeter so that workers would have started on one side and must have crossed the ridge capping to get to vents on the other side.[41]
[40] Transcript of proceedings 13 July 2020 page 128
[41] Transcript of proceedings 13 July 2020 pages 129-130
Mr Bunn also referred to photographs which showed old splits and new splits, and he attributed the majority of the cracks to the workers being on the roof.[42] However, Mr Ball stated that although there were people on the roof walking on the tiles they would be at least two tiles down from the ridge capping because it was not possible to lift the higher tiles that were mortared in, “so we came down the roof a bit.”[43]
[42] Transcript of proceedings 13 July 2020 pages 132-133
[43] Transcript of proceedings 13 July 2020 page 130
There was also the following exchange:
MR BUNN: Once I went out there and they were actually - two of them were actually standing on the ridge - on the ridge itself, talking.
SENIOR MEMBER FERGUSON: Okay.
MR BALL: But even if - even if they were standing on the ridge, that doesn’t mean they would have cracked the mortar, not over the whole roof.[44]
[44] Transcript of proceedings 13 July 2020 page 130, see also page 133
Mr Bunn also stated that, although he was not on site 100 per cent of the time, he knew that “they were dragging tools backwards and forwards over that roof capping, and dragging stuff[45] over - over the roof capping, not carrying it, so you know, I’m saying that would have – that would have had an impact on the - on the roof too, on the ridge capping also.”[46] In support of that conclusion, he referred to the damaged tiles which had been replaced.[47]
[45] including, according to Mr Bunn, metal boxes: Transcript of proceedings 13 July 2020 page 134
[46] Transcript of proceedings 13 July 2020 page 133
[47] Transcript of proceedings 13 July 2020 pages 133-134
Mr Bunn also stated that when the broken tiles were replaced with spare tiles that he removed from under the house, the installers acknowledged that they had also broken the ridge capping.[48] Mr Ball was not present on that occasion, and no one gave evidence on behalf of the installers. Indeed the identity of the installers was not clear. On 17 September 2019 (about two months before the first day of the hearing before the Original Tribunal), Mr Bunn sent an email to Mr Ball asking (after many other listed requests) for “a list of all persons who attended to the original install of both the Panasonic and Rinnai systems (18 April 2019) as such will provide clarity for all parties and ACAT at the upcoming hearing.”[49] The Appeal Tribunal has not seen a reply to that request. In response to questioning by Mr Bunn at the resumed hearing, Mr Ball said that the people who installed the air-conditioning system were employees and subcontractors,[50] but he did not identify them by name.
[48] Transcript of proceedings 13 July 2020 pages 134-135
[49] Amended civil dispute application dated 8 October 2019 page 84
[50] Transcript of proceedings 13 July 2020 page 140
Mr Ball stated that the photos were not clear and that the damage shown in the photographs was “all over the roof. The whole roof is like that. It’s in severe disrepair, the whole roof.”[51] He referred to a video which shows damage “all along the ridge cap from one end to the other.”[52] He described cracks in the ridge capping “which would have been nowhere near where we were” and continued, “I just basically wanted to show that the ridge cap needed repair, but it wasn’t due to us installing the air-conditioning system.”[53]
[51] Transcript of proceedings 13 July 2020 page 97
[52] Transcript of proceedings 13 July 2020 page 98
[53] Transcript of proceedings 13 July 2020 page 127
Mr Bunn noted that:
(a)the video did not record the ridge at the overlaps face on, and hence the cracking in each and every ridge capping cannot be seen; and
(b)the video showed that two or three pieces of mortar were missing, and yet none of that mortar was missing when he went over the whole roof with the roofer.[54]
[54] Transcript of proceedings 13 July 2020 page 131
Mr Ball drew on 20 years of experience to express the observation that most houses have cracked mortar from wear and tear, not through the installation of an air-conditioning system. He said that it was not their practice to stand on the ridge capping, but he has seen people do that. In his opinion, that would not cause the mortar to crack or fall away in the way shown in the photographs. Further, their practice was not to be “all over the roof” but to keep runs “as short as possible from where the ladders are to the main holding input in the roof.”[55] We note that, although the parties agreed that the roof was relatively old, there was no evidence of planks on the roof for the installers to use to minimise the risk of damage to it, or any covering of the ridge capping during the installation process.
[55] Transcript of proceedings 13 July 2020 page 137
Mr Ball also expressed the view that, even though the roof had apparently been repaired three years previously, it was an old roof and wear and tear in that period had caused cracking. The whiteness in the photographs showed calcification around cracks that were quite old.[56]
[56] Transcript of proceedings 13 July 2020 page 137
The Original Tribunal noted that she had evidence from Mr Bunn about what he saw and what the installers said on the relevant day, and the respondent’s evidence of the ridge capping which shows damage all the way along. The Original Tribunal did not have any evidence from the installers as to their version of the events.[57] The parties were given the opportunity to ask questions of each other in relation to this and other matters in dispute.[58]
[57] Transcript of proceedings 13 July 2020 page 136
[58] Transcript of proceedings 13 July 2020 page 136
The Original Tribunal asked Mr Ball whether he had any questions of either Mr Bunn or Mr Swan in relation to the outstanding issue in relation to the ridge capping? The following exchange occurred:[59]
MR BALL: No.
SENIOR MEMBER FERGUSON: No?
MR BALL: I don’t have any questions. Seeing that we’ve made the offer to come and repair the other issues that they’ve - I thought we had agreed on, which we’re still prepared to do, we’re not prepared to pay him money for the repair of the roof. I don’t really have any questions for him, though.
[59] Transcript of proceedings 13 July 2020 page 138
In response to questions from Mr Bunn, Mr Ball gave evidence to the effect that:
(a)he conducted a site inspection before the work commenced and did not identify problems with the ridge capping at that stage “because every roof has damage to the ridge cap”;[60]
(b)the people who installed the air-conditioning system were employees and subcontractors;
(c)their work at Mr Swan’s house had not been checked (possibly because they were not allowed back to the site) and the installers did not report to Mr Ball about the broken tiles or an issue about the ridge capping.[61]
[60] Transcript of proceedings 13 July 2020 page 141
[61] Transcript of proceedings 13 July 2020 pages 140-141
As noted earlier (see paragraphs [13]-[14]), the applicant failed in his claim for payment in respect of the ridge capping.[62]
[62] See Transcript of proceedings 11 September 2020 page 5
On review of the evidence, the Appeal Tribunal has concluded that Mr Swan proved on the balance of probabilities that some damage to the ridge capping was caused by installers in April 2019. Mr Bunn gave evidence that he had observed the state of the roof before the installation occurred, had identified broken tiles to the installers at the time of the installation and had provided replacements to them, had observed people standing on the ridge capping and carrying out activity over and on the ridge capping. The alleged ridge capping damage was identified in writing well before the proceedings commenced and at each stage in the civil damages applications. Photographs and were provided to illustrate the location and extent of cracking.
The calling of one or more of the installers to give evidence would have assisted the Original Tribunal. Well before the hearing Mr Bunn asked for information to identify them, but apparently did not receive it. At the hearing Mr Ball spoke only in general terms about categories of people who did the work, and he queried the relevance of being asked about them. The Energy People did not call an installer to rebut the oral and photographic evidence, together with the quote, provided on behalf of Mr Swan. To the extent that The Energy People could have called such evidence (as presumably it knew who had done the work) an inference might be drawn that the evidence would not have assisted its case.[63]
[63] See Jones v Dunkel (1959) 101 CLR 298
An expert report on the nature and cause of damage to the ridge capping would also have assisted the Original Tribunal.
But the absence of evidence from the installers or an expert in ridge capping is not fatal to Mr Swan’s claim. Direct oral and photographic evidence showed that there was damage, and Mr Bunn’s observations of the way the installers operated on what (as both parties agreed) was an old and somewhat fragile roof, enabled an inference to be drawn that the installers caused damage to the roof capping.
We have concluded that the Original Tribunal could and should have reached that conclusion.
The evidence did not establish that all the cracking was associated with or attributable to the impact of the installers on the roof. At its highest, Mr Swan’s claim was for damage to almost all of the ridge capping and Mr Bunn attributed the majority of the cracks to the workers being on the roof. The photographs provided to the Original Tribunal show a series of apparently recent cracks. Those cracks which have significant white markings probably appeared before the installation work.
Rather than direct that detailed assessments and quotes be prepared some two years after the event (and at additional cost), we consider that the appropriate approach is to estimate, on the basis of the evidence available to the Original Tribunal a proportion of the cracks that were more likely than not caused by the activity of the installers.
Having considered the evidence including photographic evidence we conclude that an award of 40 per cent of the estimated cost of repairs of the ridge capping is appropriate. Allowing a deduction of $150 from the quote of $1,650 for tile replacement, 40 percent of $1,500 is $600.
Although not determinative, support for that conclusion is found in an exchange of emails between the parties in December 2019. In an email to Mr Swan and Mr Bunn dated 19 December 2019, Mr Ball offered to pay $400 “to go towards the repair” of damage to the ridge cap. It continued, “I know this is not the amount you had in mind but as the quote was to repair the entire roof I believe this to be a fair amount.” The offer was repeated in a separate email on 20 December 2019. In his email on 20 December 2019, Mr Bunn suggested that $600 would be acceptable.
The hot water system and asbestos issues
There is no dispute that the hot water system was installed in circumstances that were unsatisfactory from the point of view of Mr Swan, The Energy People and the installer, Mr Moise. Had there been an inspection of the house sufficiently in advance of the scheduled installation date, and had the plumbing constraints been identified and had appropriate steps been taken to identify the location of any asbestos and arrange for its removal, the issues giving rise to this part of Mr Swan’s claim for damages would not have occurred. As noted earlier, the Original Tribunal made such an assessment of the circumstances.
But there was no such inspection. Mr Swan had not been made aware of the precise location of the proposed installation and had not made arrangements for the removal of any asbestos from that location. The way in which the hot water system was installed was not ideal. Indeed, apart from anything else, there was a resulting delay in hot water travelling to the outlet.
It was at least possible that on the scheduled installation day, once the plumbing obstacles to the proposed installation were identified, arrangements could have been made for the work to be done on a later date and for any asbestos to be identified and, if necessary, removed before that date. Indeed, the evidence of Mr Moise, Mr Bannon and Mr Jones was that The Energy People recommended that work not proceed on that day once the problems had been identified. But that did not occur. Rather the installation proceeded on that date in those circumstances at the insistence and with the consent of Mr Bunn on behalf of Mr Swan.
We do not accept Mr Swan’s submission that seems to suggest that the installation checklist is not significant to the outcome of this case because it was not discussed or requested to be signed until the completion of the work by Mr Moise. It is apparent from the way in which the discussions around the original quote proceeded that the precise nature of the installation of the hot water system could not and would not be determined until the site was assessed. In this case, the site was not assessed until the scheduled date of installation and the plumbing problems were identified and options considered. The installation checklist reflected the work actually undertaken to give effect to the existing contract in ways agreed to by Mr Bunn on behalf of Mr Swan.
For completeness, we confirm that the quote given by The Energy People to Mr Swan included clause 13 stating:
It is the customers responsibility to inform us of the presence of any asbestos material in the home before commencement of work. If any asbestos material is found it is the customers responsibility to arrange for the removal of the asbestos material. Work will not commence until the asbestos material has been disposed of.[64]
[64] Civil dispute application lodged 4 July 2019 at page 11, [13]
We also note that, even if Mr Swan had indicated to The Energy People that the age of the house might suggest the presence of asbestos, that did not relieve Mr Swan of the responsibility set out in clause 13. At the hearing, Mr Bunn acknowledged that The Energy People was “not approved to do asbestos removal.”[65]
[65] Transcript of proceedings 13 July 2020 page 104
Nothing before the Original Tribunal or this Appeal Tribunal demonstrates that clause 13 is unusual or unjust. Indeed, as noted earlier, the plumber’s quote for the required rectification works to the hot water system (annexed to Mr Swan’s amended civil dispute application filed on 8 October 2019) included the statement:
For us to carry out this work the asbestos will have to be removed from the laundry and bathroom walls as the pipes are not accessible as the pipes have been run in the walls and not under the house. The asbestos will have to be removed by a qualified person and NOT by us.[66]
[66] Amended civil dispute application lodged 8 October 2019, annexure 1.12
We accept that some asbestos was disturbed by Mr Moise when he drilled a small hole in the floor of the laundry. We also note that Mr Barron stated that installers are allowed to drill a hole in material containing asbestos under the requirements for working with asbestos.[67]
[67] Transcript of proceedings 13 July 2020 page 119
The asbestos report provided to the Original Tribunal by Mr Swan stated that the laundry floor sheet, laundry wall sheet and bathroom wall sheet all contained nonfriable[68] chrysotile asbestos. The condition of the laundry floor sheet was described as “fair” and the risk “low”. The condition of the wall sheets was described as “good” and the risk “very low.” The report stated that asbestos-containing material should be removed prior to commencing further works that may disturb or damage the material.
[68] Applicant’s additional material in reply lodged 17 February 2020, annexure AMR-1; The report described nonfriable asbestos has “material that contains asbestos firmly bound into a matrix. It may consist of cement or various resins/binders and cannot be reduced to a dust by hand pressure. As such it does not present an exposure hazard unless cut, abraded, sanded or otherwise disturbed. Therefore, the exposure risk from non-friable ACM [asbestos-containing material] is negligible during normal building occupation.”
The reasoning of the Original Tribunal, and the submissions in relation to it, are set out above and need not be repeated. It is sufficient to state that, in all the circumstances of this case, we are not satisfied that the Original Tribunal was incorrect in characterising the contractual arrangement between Mr Swan and The Energy People before and at the time of the installation of the hot water system. We are not satisfied that the Original Tribunal was in error when refusing Mr Swan’s claim for compensation, or in indicating that even if he had been entitled to compensation as a result of shortcomings in the hot water system, he would not have been entitled to the cost of removing the asbestos to allow the work to be conducted. Accordingly, that part of Mr Swan’s appeal is dismissed.
The alleged absence of natural justice or procedural fairness in relation to one aspect of the original proceedings
It was appropriate for Mr Swan to raise procedural fairness issues in relation to his limited opportunity during the hearing to test the written evidence given by Mr Moise. A party should be given the opportunity to ask questions of the author of a document provided by the other party and on which the tribunal is being asked to rely. If that opportunity is not given, then the Tribunal has to consider what weight, if any, can be given to the document.
The fact that Mr Bunn did not expressly request that Mr Moise be available for questioning when the hearing resumed does not determine the issue. Mr Bunn is not a lawyer. The proceedings were conducted in an appropriately informal way by the Original Tribunal, rather than in a formal manner akin to court proceedings. Whether The Energy People assumed that Mr Moise would not be required at the resumed hearing is beside the point.
The two issues for this Appeal Tribunal are whether the lack of opportunity to question Mr Moise significantly affected the outcome of the case before the Original Tribunal and whether (as intimated in the written submissions for The Energy People) this Appeal Tribunal should direct that the matter be remitted to the Original Tribunal for the purpose only of Mr Bunn being given the opportunity to ask questions of Mr Moise.
As to the first issue, when it became apparent that Mr Moise was not present at the second day of the hearing there was no request to contact him by telephone or arrange for him to attend later that day. The only indication of what questions Mr Bunn might have asked Mr Moise was found in the lengthy discussion between Mr Bunn and Mr Barron about whether Mr Moise was a licensed or registered plumber, and the rather brief exchange about whether aspects of Mr Moise’s installation work were done with due care and skill.[69] There is nothing in Mr Swan’s written submissions (particularly in the submissions in response to The Energy People’s submission) to indicate what other questions he might have asked and what difference the answers to his questions might have made to Mr Swan’s case.
[69] Transcript of proceedings 13 July 2020 pages 153-162
As is apparent from the preceding discussion, the key evidence to support Mr Moise’s account of the circumstances in which the installation occurred is the installation checklist which recorded that Mr Bunn had agreed on behalf of Mr Swan to the work that Mr Moise undertook that day. Mr Bunn signed the document. That document was critical to the outcome. Accordingly, it is likely that even if Mr Moise had been questioned by Mr Bunn the outcome of that aspect of the case would have been the same.
On that basis, although that result cannot be stated with absolute certainty, we are not satisfied that there would be any benefit to either party or the consideration by the Tribunal of the ‘hot water installation’ issue in remitting the matter to the Original Tribunal for that limited purpose.
Costs
The parties’ submissions
Among the orders sought by Mr Swan on appeal are an order that “The respondent pay the applicant’s costs in this matter.”
It is not clear what costs he seeks. In his submissions in reply, Mr Swan stated that the costs referred to in his application “are only the costs to which, if successful, … [he] would be entitled,” as specified at section 48(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
As Mr Swan was not legally represented at the hearing before the Original Tribunal, he could not be seeking to recover his legal costs. In his amended civil dispute application lodged on 8 October 2019 he claimed the ACAT filing fee of $159 and a search fee of $9. Mr Swan paid a filing fee of $583.50 in relation to his application for appeal.
In its submission, The Energy People contended that even if Mr Swan was successful on any of his grounds of appeal, the only appropriate order would be that there is no order for costs because, in summary:
(a)the Tribunal’s power to award costs in matters before it is regulated by section 48 of the ACAT Act as that section was interpreted by Penfold J in CIC Australia Ltd v ACT Planning and Land Authority Pty Limited and ACT Civil and Administrative Tribunal[70] (CIC); and
(b)Mr Swan has not submitted whether or why he is entitled to his costs pursuant to section 48(2) of the ACAT Act.
Consideration and conclusion
[70] CIC Australia Ltd v ACT Planning and Land Authority Pty Limited and ACT Civil and Administrative Tribunal [2013] ACTSC 96
Section 48(1) of the ACAT Act provides:
Costs of proceedings
(1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders.
Section 48 continues:
(2) However—
(a)if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i)the filing fee for the application; and
(ii)any other fee incurred by the applicant that the tribunal considers necessary for the application; or
Examples––subpar (ii)
·a fee for a business name or company search
·a filing fee for a subpoena
·hearing fees
(b)if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or
(c)subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or
(d)if the application is an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application.
NoteA legal expense relating to a proceeding in the tribunal may be recoverable as a debt under the Unit Titles (Management) Act 2011, s 31.
(3) For subsection (2) (d), reasonable costs of the other party arising from the application include reasonable legal costs but do not include holding costs.
Examples—holding costs
·interest and lender imposed charges associated with a loan
·costs of engaging workers and subcontractors and hiring equipment for a development
The Tribunal’s discretionary power under subsection (1) is limited. In CIC, Penfold J identified the four main elements of section 48 as:
(a) the default position is that the parties bear their own costs;
(b) the default position may be varied by provisions of the ACAT Act;
(c) the default position may be varied by an order of ACAT;
(d) in four specified circumstances, ACAT may make particular costs orders.[71]
[71] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96 at [37]
Her Honour concluded that section 48 “confers a narrow power on ACAT ... to make only the orders specified in section 48(2) and only in the circumstances specified in that provision.”[72]
[72] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96 at [82]
Adopting that interpretation to the circumstances of this appeal, Mr Swan’s application for costs must be dismissed unless it comes within section 48(2), the scope and operation of which was discussed in Swan & Anor v Residential Reports Pty Ltd ACN 609 880 122.[73]
[73] [2021] ACAT 7
It is clear that Mr Swan cannot be awarded costs under section 48(2)(b), (c) or (d).
The remaining issue is whether Mr Swan should be awarded the amount of the filing fee to bring his appeal under section 48(2)(a)(i). That issue should be considered in light of the proceedings as a whole.
Although the Original Tribunal dismissed Mr Swan’s application, it is clear from the events surrounding the stages of the hearing referred to earlier that, had he not commenced proceedings in the tribunal, it is unlikely that the work undertaken by The Energy People in the course of the proceedings and by agreement negotiated in the context of the proceedings would have occurred. Accordingly, although the formal orders of the Original Tribunal indicate that he was unsuccessful in what remained of his application, the application resulted in some of his claims being met.
On appeal, Mr Swan has achieved some success although, in financial terms, only a small proportion of what he sought. Had he not appealed, he would not have recovered the amount awarded by the Appeal Tribunal.
Further, in negotiations with The Energy People Mr Swan indicated that he would settle his claim for the roof capping damage for the sum of $600. It appears that offer was rejected. Mr Swan was successful on appeal in recovering that sum.
Having regard to the history and outcomes of the proceedings before the Original Tribunal and this Appeal Tribunal, we are satisfied that it is appropriate that Mr Swan recover from The Energy People the sum of $583.50, as reimbursement of his filing fee in the appeal.
Conclusion and orders
Having considered the parties’ submissions and the material before the Original Tribunal, for the reasons given above, we have concluded that:
(a)the appeal is allowed in part;
(b)The Energy People is to pay Mr Swan the sum of $600 for repairs to ridge capping on his house; and
(c)The Energy People is to pay Mr Swan the sum of $583.50, being the filing fee for the appeal, within 28 days of the date of these orders.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
| Date of hearing | 15 December 2020 (in chambers on the papers) |
| Applicant: | Mr P Bunn, authorised representative |
| Counsel for the Respondent: | Mr J.T Moffett |
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