Neilsen v MB Solar Industrial Electrical as Trustee For Ballantine Family Trust
[2016] QMC 7
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- Neilsen v MB Solar Industrial Electrical as Trustee For Ballantine Family Trust[2016] QMC 7
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Neilsen v MB Solar Industrial Electrical as Trustee For Ballantine Family Trust[2016] QMC 7
Neilsen v MB Solar Industrial Electrical as Trustee For Ballantine Family Trust[2016] QMC 7
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Neilsen-v-MB Solar Industrial Electrical as Trustee For Ballantine Family Trust & Anor [2016] QMC 7 |
PARTIES: | PAUL BRANDAN NEILSEN (Plaintiff) v MB SOLAR INDUSTRIAL ELETRICAL AS TRUSTEE FOR BALLANTINE FAMILY TRUST (First Defendant) MATTHEW KARL BALLANTINE (Second Defendant) |
FILE NO/S: | BM3342/2015 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Civil Application |
DELIVERED ON: | 15 March 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 February 2015 |
A/MAGISTRATE: | R Carmody |
ORDER: |
|
CATCHWORDS: | CONTRACT – Alleged false and misleading representations – rebate for installation of solar panels – true when made – 12 month delay to contact – change of government policy in intervening time NEGLIGENCE – pure economic loss – duty of care – sufficiency of salient features of proximity and foreseeability – acceptance of responsibility – known reliance and special vulnerability – plaintiff required to replead Foxworth Pty Ltd & Ors v Polwood Pty Ltd & Ors [2006] QSC 185 at [132] Briginshaw v Briginshaw (1938) 60 CLR 336 Magill v Magill (2006) 226 CLR 551, 567 Dalgety & Co v AMP (1908) VLR 481, 506)With v O'Flanagan [1936] Ch 575 Hill v Van Erp (1997) 188 CLR 159, Perre v Apand (1999) 198 CLR 180, Caltex Refineries v Stavar (2009) 75 NSWLR 649, 675-76 per Allsop P) |
COUNSEL: | Mr Curtis instructed by Bennett Carroll for the plaintiff / respondent |
SOLICITORS: | Mr Grant, Quinn & Scattini |
- [1]This is the defendants’ application for Summary Judgment under Rule 293 Uniform Civil Procedure Rules 1999 or alternatively under Rule 171(1)(a) that the plaintiff’s claim be struck out for failure to disclose a reasonable cause of action.
The Pleadings and Affidavits
- [2]The plaintiff’s amended statement of claim (“ASOC”) alleges that the defendants made false and/or misleading representations and were negligent resulting in him suffering loss and damage amounting to $18,781.82.
- [3]The defendants are electrical contractors supplying and installing solar power systems.
- [4]The plaintiff says that relying on false or misleading representations[1] to him early in 2012 by the defendants’ Mr Gibson, he entered into a verbal contact in or about April 2013[2] for them to supply and install a 3 kilowatt solar power system (the solar panels) to his home at 4/95 Strickland Terrace, Graceville.
- [5]The representations were that
- (a)If the plaintiff installed the defendants’ solar panels by 30 June 2013 (the cut-off date), he would receive a 44 cent per kilowatt hour rebate on his electricity supply for excess solar energy he returned to the grid.[3]
- (b)The defendants would do all the necessary requirements for him including submitting documents by the cut-off date.
- [6]The plaintiff deposes that
“Following the aforementioned conversations with Mr Gibson [in early 2012] I did not make any further or other enquiries about the state government solar scheme as I trusted Mr Gibson and believed that I could rely on what he had told me and the relative benefits of installing a solar power system at my property.”[4]
- [7]It is common ground that legislative changes (Regulation 30AA Electricity Regulation 2006) of 6 July 2012 meant that only customers who lodged a completed application to connect a qualifying generator prior to 10 July 2012 were entitled to the 44 cent rebate.[5]
- [8]The solar panels were installed on 24 May2013.[6]
- [9]In or about January 2014 the plaintiff was informed by the energy supplier that he was not getting any solar rebate because the defendants had not submitted the documents as promised.[7]
- [10]
- [11]
- (a)Causation (denied) was broken by the changes in legislation; that is, the requirement under the Electricity Regulation 2006 Regulation 30AA that the plaintiff had to lodge a completed application to connect a qualifying generator prior to 10 July 2012 in order to be entitled to the 44 cent rebate;[12] and
- (b)Any loss to the Plaintiff of the 44 cent rebated was caused by the plaintiff’s own conduct.[13]
The Issue
- [12]The question to be decided is whether the defendants have satisfactorily demonstrated that neither of the plaintiff’s claims have any real prospect of succeeding even if the case proceeded to trial.
The Misrepresentation Claim
- [13]The plaintiff’s case is common law based. No reliance is placed on federal consumer protection legislation.
- [14]Moreover, the representations in ASOC [3] were admitted to be true when made in 2012.
- [15]Accordingly, the plaintiff’s complaint (which is not specifically pleaded but reasonably inferred) is that the defendants’ silence between 6 and 10 July 2013 robbed him of the chance of qualifying for the 44 cent rebate from the installation date to the end date of the government incentive scheme in 2028 costing him in excess of $18,000.
- [16]This claim is bound to fail firstly because there is no guarantee that government policy will not change again in the 12 years between now and 2028.
- [17]Second, there is no allegation that he would not have installed the solar panels but for the defendants’ deception.
- [18]Third, a valid contract requires mutual consent. There is no real consent if one party is mistaken about a fact i.e. a rebate amount, because of what the other party told him. Thus the contract is vitiated and the innocent party has a right of rescission and in the case of fraud, is entitled to damages as well.[14]
- [19]Fourth, fraud allegations in civil cases are hard to prove. The standard of proof is a demanding one that takes account of the nature and consequences of the allegation. Direct and exacting proof is required.[15]
- [20]Fifth, in 2012 the plaintiff was a potential customer. Usually there is a requirement for a special relationship between negotiating parties, known reliance and a mutual understanding that the defendants would disclose a material change in circumstances making a true representation a false one.[16]
- [21]Sixth, the pre-contract representations must be made in circumstances where it is reasonable to construe them as meaning that the represented facts are still true at the contract date because they have not been corrected.[17]
- [22]Seventh, a full 12 months lapsed between the representation and when they were allegedly acted on. The undisclosed change in policy occurred nine months before the contract date and was publically available.[18]
- [23]Eighth, the plaintiff owes a duty to himself to protect his own financial interests.
- [24]Ninth, none of the key elements of a misrepresentation by non-disclosure action are pleaded in the ASOC.
The Negligence Claim
- [25]To make the defendants legally liable in negligence the plaintiff must plead and prove:
- A duty of care;
- A breach of the duty;
- Recoverable loss
- [26]Proximity and reasonably foreseeable loss are necessary but not sufficient conditions for an enforceable duty of care to protect a plaintiff from risk of incurring a loss of that kind.
- [27]In cases other than personal injury or property damage such as claims for pure economic loss, the court takes a multifactorial, analogical and incremental approach and looks for “salient features” indicative of liability in addition to proximity and foreseeability.[19]
- [28]Policy considerations can negate liability for pure economic loss so where another field of law (eg contract) is more applicable, a duty would interfere with normal commercial transaction, the standard of care is indeterminate as to class and time.
- [29]Whereas here, pure economic loss is claimed, those features generally include acceptance of responsibility, known reliance by the defendants and a special vulnerability to risk of the plaintiff.
- [30]None of these material facts are pleaded in the ASOC.
Breach of Warranty
- [31]The plaintiff claims monetary loss for late lodgement of the rebate application by the defendant to which there is no apparent defence except a questionable denial of promising to file tin time.
- [32]However, the plaintiff does not seek Summary Judgment of that amount before trial.
- [33]The late lodgement is a breach of contract at best. It is not evidence of an on-going false promise. To prove that the plaintiff would have to show that if and when the defendants assured him that they would apply by the cut-off date, they had no genuine present intention of doing so. But there is no allegation or evidence of this.
Conclusion
- [34]The defendants are entitled to judgment on the misrepresentation claim.
- [35]The plaintiff needs to re-plead his negligence claim identifying the nature and scope of the defendants’ alleged duty of care by reference to the law governing recovery for pure economic loss in negligence and exactly how the defendants breached that duty. The basis for claiming loss at the rate of 44 cents per kilowatts up to 2028 also needs to be justified given that, as has been seen already, the government can, and has in the past changed the rate for policy reasons at will.
- [36]The defendants have succeeded on part, but not all of their application. Accordingly I allow the defendants their costs of the application as their costs in the cause.
Orders
- [37]Judgment for the first and second defendants against the plaintiff on the plaintiff’s misrepresentation claim.
- [38]The plaintiff is to re-plead its claim base on negligence.
- [39]The defendants’ costs of this application are their costs in the cause.
Footnotes
[1] ASOC [12]
[2] ASOC [2]
[3] ASOC [3(a)(b) and (c)]
[4] Affidavit of plaintiff sworn 19 February 2016 [4]
[5] Amended Defence (“ADEF”) [9(v)]
[6] Ibid [6]
[7] Ibid [7]
[8] Ibid [8]
[9]Ibid [14]-[21]
[10] [10] ADEF
[11] Reply [10(a)]
[12] [9(v) and 12(1)(c)A] ADEF
[13] Ibid [10(iv)]
[14] Foxworth Pty Ltd & Ors v Polwood Pty Ltd & Ors [2006] QSC 185 at [132]
[15] Briginshaw v Briginshaw (1938) 60 CLR 336
[16] Magill v Magill (2006) 226 CLR 551, 567
[17] Halsburys Laws of Australia [110-5100]; see too Dalgety & Co v AMP (1908) VLR 481, 506)
[18] Cf With v O'Flanagan [1936] Ch 575 where a contract to buy a medical practice was validly rescinded because the represented takings had dropped in the three months between negotiation and contract due to the vendor’s ill health
[19] Hill v Van Erp (1997) 188 CLR 159, Perre v Apand (1999) 198 CLR 180, Caltex Refineries v Stavar (2009) 75 NSWLR 649, 675-76 per Allsop P)