Boscaino v Tweedy Enterprises Pty Ltd and Anor [2013] QCAT 68

CITATION: Boscaino v Tweedy Enterprises Pty Ltd and Anor [2013] QCAT 68 PARTIES: Remigio Boscaino (Applicant) v Tweedy Enterprises Pty Ltd Jack’s Plumbing Pty Ltd (Respondents) APPLICATION NUMBER: MCDO111-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 1 February 2013 HEARD AT: Pine Rivers DECISION OF: Andrew McLean Williams, Member DELIVERED ON: 7 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Application dismissed CATCHWORDS: Minor Civil Dispute – Consumer claim – Solar hot water system, alleged to be defective and/or improperly installed – Insufficient evidence to support that claim. APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Bosciano, in person RESPONDENT: Mr Fergus Tweedy, Mr Daniel Jack, in person. REASONS FOR DECISION Preliminary [1] This matter was heard at Pine Rivers Courthouse on the afternoon of Friday 1 February 2013. [2] By his ‘Application for Minor Civil Dispute – Consumer Dispute’, the applicant Mr Remigio Boscaino sues Tweedy Enterprises Pty Ltd (trading as ‘Earthsave’) and Jack’s Plumbing Pty Ltd in relation to an allegedly -- 1 of 4 -- 2 defective solar hot water system that has been installed on the roof of the applicant’s home at Carseldine, by the respondents. Tweedy Enterprises have supplied the solar hot water system at the centre of this dispute, and had then arranged for Jack’s Plumbing to perform the installation of that system. [3] The applicant contends that the solar hot water system is defective and/or that it has been incorrectly installed, and that it is on the wrong location on his roof - such that that he now wishes to have it removed and an alternative replacement system installed, by a plumber of his own choosing. The applicant seeks an order that the respondents be required to pay to him the sum of $6,215.00 for an alternative solar hot water system; and that the respondents also pay his QCAT filing fee ($98.00) together with various sundry costs relating to company searches, postage, and so on, that he says have been necessarily incurred by him whilst prosecuting this claim. [4] In about March 2011 the applicant entered into an agreement with Tweedy Enterprises Pty Ltd for the installation of an ‘Edwards’ solar hot water system. The agreed price for that installation was $2,975.00. The applicant contends that the solar hot water system makes an intolerable noise that leaves the applicant fearful that his roof is in jeopardy of collapsing. [5] Because of the noise, the applicant contacted each of Jack’s Plumbing and Tweedy Enterprises to complain. The respondents have returned to the applicant’s home on a number of occasions and can find no fault with the hot water system. Initially, in about February 2012, there were problems associated with water hammer however these have long since been rectified. However the applicant still continues to complain about the noise emanating from his hot water system, which he says is a specific noise, quite unlike water hammer, that is coming from the solar panels on the roof. The applicant has made various complaints to the Queensland Office of Fair Trading, and to the Australian Competition and Consumer Commission. [6] As a consequence of an order by this Tribunal made on 8 August 2012, the manufacturer of the Edwards solar hot water system, Rheem Australia Pty Ltd was required to attend at the applicant’s home in order to inspect the hot water system. In response to that order a report has since been obtained from Rheem Australia Pty Ltd, given under the hand of Mr Peter McDonald, who is a service supervisor. [7] Mr McDonald indicates that he attended at the applicant’s address at Carseldine on 2 January 2013 and inspected the Edwards solar hot water system. In his opinion the system had been installed in a competent and tradesman-like manner, and in accordance with the manufacturer’s directions. Mr McDonald was also unable to find any signs of a manufacturing defect in the system. -- 2 of 4 -- 3 [8] In relation to the atrocious noise described by the applicant, Mr McDonald proffers an opinion that this is most likely caused by the applicant not using a great deal of hot water during the summer months; such that the system is now creating vastly more hot water than the applicant actually uses. Because of that, water is stagnating within the panels, thus causing it to boil, and make a rumbling noise when cold water is introduced into the system. In his report, Mr McDonald describes that problem in the following terms: … This is not a Fault, but if there is not much water draw off during the day the temperature in the panels will increase causing the above mentioned noise. [9] The only evidence adduced by the applicant in relation to the noise in his hot water system (that is, other than his own complaint), has been provided in the form of a signed statement from the applicant’s neighbour, a Mr Wayne Flynn. In part, Mr Flynn says that he thinks that the noise is ‘unacceptable’, and that he finds it ‘inconceivable’ that this problem cannot be resolved by either the manufacturer, or the plumber. It is to be noted that Mr Flynn was not made available for cross examination; and nor has the basis upon which Mr Flynn should now be allowed to give this type of opinion evidence been demonstrated by the applicant. It is not evidence that is in any way persuasive. I give it no weight in my deliberations. [10] Mr Tweedy, the principal of Tweedy Enterprises Pty Ltd, gave evidence before the Tribunal. So too did Mr Jack, who is, of course, trade qualified as a plumber. Each of these gentlemen was clear in stating that there is no problem with either the installation, or the solar hot water system. Both of the respondents also accept the opinion proffered by Mr McDonald from Rheem, that the problem is that the applicant is now producing far more hot water than he is actually using; such that the water in the panels on the roof is boiling in the panels; thus causing for them to reverberate. [11] Each of Mr Tweedy and Mr Jack informed the Tribunal that the solution for this problem is for the applicant to run his taps and thus drain off some of the hot water. Given that the hot water is solar heated, this can be done at virtually no cost to the applicant. I accept that evidence. However it is not evidence that will now support my concluding that the solar hot water system is defective. [12] Having rejected the evidence contained in Mr Flynn’s statement, the only other evidence that is available to me of there being a defect in the solar hot water system is the assertion of the applicant. Yet, I prefer the evidence contained in the report that has been provided by Mr McDonald, which is consistent with the evidence of Mr Tweedy and Mr Jack, both of whom also have some expertise and experience when it comes to solar hot water systems. [13] The applicant also complains that the hot water system has been installed in an incorrect position. Mr Tweedy says that this is not the case at all. Mr Tweedy was able to produce for QCAT the original paperwork in relation to the installation of the solar hot water system at the applicant’s -- 3 of 4 -- 4 Carseldine home, which reveals that the installer was thereby directed to fit the system at one of two nominated locations on the roof. Mr Tweedy explained to the Tribunal that the final decision about the location of the hot water system on the roof is a matter that can only be determined whilst on-site, and is a matter that is left to the discretion of the installation tradesman. [14] I note that the photographs of the installed solar hot water system show that it has been installed in the second of the two positions initially nominated as potentially suitable for the installation. Mr Jack was able to satisfactorily explain the reasons why the other position proved ultimately to be unsuitable, such that the second site on the roof was selected for the installation. The paperwork available to Mr Boscaino at the time of his contracting with Tweedy Enterprises clearly revealed to him that the position of the solar hot water system would be finally determined in the manner that I have just described. I therefore reject the applicant’s contention that the solar hot water system has been positioned incorrectly. [15] Other than to complain about what he has described as an unacceptable noise, the Applicant has produced no objective evidence to support the contention that there is a defect in either the hot water system, or in the manner of its installation. Indeed, the preponderance of the evidence that is available to me suggests quite the contrary. On that basis that the Applicant has failed to prove his claim. [16] The application is dismissed. -- 4 of 4 --