Last month, in the matter of Director, Consumer Affairs Victoria v Vic Solar Pty Ltd (No 2) [2021] FCA 26 the Federal Court heard an application brought by Consumer Affairs Victoria (CAV) against Vic Solar alleging the solar panel provider had acted unconscionably by engaging in marketing, selling and installing “One Solar” solar panels through ‘door knocking’ activities, where they had engaged in false, misleading or deceptive representations about the capacity and quality of solar systems they were offering for installation.
In particular, Vic Solar representatives would claim:
The company had organised a “community bulk buy” which would achieve a massive ‘one off’ saving for people who purchased panels at this time;
Home owners would “never receive a power bill again”;
Home owners would save “80% off their power bills”;
Would be supplied with high quality German manufactured panels; and
Vic Solar panels were superior to the “Chinese panels” installed on the homes of their neighbours.
In fact, expert evidence led at trial found the prices Vic Solar had sold solar panel systems to householders for were “at or above the top end of market prices” and a lower quality panel that those commonly supplied at a price point 60% lower than those sold by Vic Solar.
The expert also calculated that the maximum power saving that could be achieved by the Vic Solar systems was a maximum of 42%, and more likely to be around 20%, of a homeowners’ pre-solar panel power costs.
Decision
Justice O’Bryan explained that he had applied the principles of statutory unconscionable conduct as detailed in Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708 to conclude that Vic Solar’s practice of door knocking, contriving false claim of a “Community Bulk Buy” to gain entry to a persons home and then peddle inferior products at exorbitant prices and ignore the strict ACL regulations around “unsolicited consumer agreements” amounted to unconscionable conduct.
O’Bryan J concluded:
"In my view, Vic Solar’s conduct of its business model objectively answers the description of being against conscience. It involved trickery and sharp practice, illegality and taking advantage of consumers in their homes when they are more vulnerable to such practices."
By Rob Norton and Louise Gehrig