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The Law HandbookYOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES13th EDITIONREDFERN LEGAL CENTRE PUBLISHING

Published in Sydneyby Thomson Reuters (Professional) Australia LimitedABN 64 058 914 668100 Harris Street, Pyrmont NSW 2009First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978.First published as The Law Handbook in 1983Second edition 1986Third edition 1988Fourth edition 1991Fifth edition 1995Sixth edition 1997Seventh edition 1999Eighth edition 2002Ninth edition 2004Tenth edition 2007Eleventh edition 2009Twelfth edition 2012Thirteenth edition 2014Note to readers: While every effort has been made to ensure the information in this book is as up to date and asaccurate as possible, the law is complex and constantly changing and readers are advised to seek expert advicewhen faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used asa substitute for legal advice.National Library of AustraliaCataloguing-in-Publication entryThe law handbook : your practical guide to the law in NSW / Redfern Legal Centre.13th edition.Includes indexISBN: 9780455234557Law – New South Wales – Handbooks, manuals, etcLegislation – New South WalesJurisprudence – New South Wales – Handbooks, manuals, etcCivil rights – New South Wales – Handbooks, manuals, etc349.944© 2014 Thomson Reuters (Professional) Australia LimitedThis publication is copyright. Other than for the purposes of and subject to the conditions prescribed under theCopyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying,photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without priorwritten permission. Inquiries should be addressed to the publishers.This edition is up to date as of 1 October 2014.The Law Handbook is part of a family of legal resource books published in other states:Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744SA: The Law Handbook by the Legal Services Commission of SA, ph: (08) 8111 5555Qld: The Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333Tas: The Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500NT: The Law Handbook by Northern Territory Legal Aid Commission and Darwin Community Legal Services,ph: (08) 8982 1111Editor: Ben BrocherieProduct Developer: Karen KnowlesPublisher: Robert WilsonIndexed and proofread by: Puddingburn Publishing ServicesPrinted by: Ligare Pty Ltd, Riverwood, NSWThis book has been printed on paper certified by the Programme for the Endorsementof Forest Certification (PEFC). PEFC is committed to sustainable forest managementthrough third party forest certification of responsibly managed forests.

11ConsumersRachael Dobson Macquarie Legal Centre - Home Building Advocacy Service(HoBAS)Elfet Eid Macquarie Legal Centre - Home Building Advocacy Service (HoBAS)Michelle Ericoli Macquarie Legal Centre - Home Building Advocacy Service(HoBAS)Jane Leung Energy and Water Ombudsman NSWMargaret McCue NSW Civil & Administrative TribunalHolly Raiche University of New South Wales, SydneyGregory Sarginson NSW Civil & Administrative TribunalTheresa Simon NSW Civil & Administrative TribunalDeborah Ziegler NSW Civil & Administrative TribunalContents[11.10] Consumer protections law- [11.450] Disconnection and[11.20] Legislationreconnection[11.30] Protections in relation to [11.480] Debt collection and credittrader conductreporting[11.140] Real estate agents[11.500] Powers of entry[11.50] Motor vehicles[11.510] Interference with electricityand gas works[11.180] Lawyers[11.530] Maintenance and upgrade of[11.190] Conveyancers services[11.200] Funeral funds [11.540] Customer service standards[11.210] Health services [11.550] Supply quality and reliability[11.220] Resolving consumer disputes [11.560] Tenants[11.230] Energy consumers [11.580] Making a complaint - energy[11.240] Energy contracts [11.590] Water consumers[11.280] Marketing and transfers [11.600] Offences relating to water[11.330] Billing [11.630] Metropolitan customers[11.390] Hardship and paymentdifficulty[11.680] Rural and regionalconsumers

348 The Law Handbook[11.690] Tenants[11.720] Making a complaint - water[11.730] Home building consumers[11.730] Legislation[11.740] Contracts[11.750] Types of contracts[11.760] Other types of contracts[11.810] Delay of works[11.820] Defective work[11.830] Statutory warranties[11.840] Limitation periods[11.850] Completion[11.860] NSW Fair Trading[11.870] The NSW Civil andAdministrative Tribunal(NCAT)[11.970] Insurance[11.980] Telephone and the internet

11 Consumers 349[11.10] Consumer protectionlawscommencement of the Australian ConsumerLaw which, by a system of interlocking Stateand Commonwealth legislation, brings uni­form provisions across Australia.Since earlier editions of this book, there hasbeen substantial development of the lawsconcerning consumer protection and fairtrading. The major step taken has been the[11.20] LegislationThe Australian Consumer Law (ACL) commencedoperation on 1 January 2011. Itapplies to transactions after that date. Theprevious Trade Practices Act 1974 (Cth) andFair Trading Act 1987 (NSW) continue toapply to earlier dealings. Readers are referredto previous editions of this work andto the Lawyers Practice Manual for a discussionof previous legislation and the measuresavailable to consumers to avail themselvesof the protections then offered.The ACL is contained in Schedule 2 to theCompetition and Consumer Act 2010 (Cth),and the text of that law applies in NSW byvirtue of the Fair Trading Act, s 28 as a law ofthe State (see the definitions in s 26). TheLaw has national application, having beenthe subject of discussion between the relevantministers of the Commonwealth andStates, and then an IntergovernmentalAgreement between them.The Contracts Review Act 1980 (NSW)remains in force. That Act does not limit anyother law providing relief against unfaircontracts or unjust contract terms, nor doesany other law limit the operation of that Actto the contract (see s 22).The Sale of Goods Act 1923 (NSW) alsoremains in force. It regulates the sale ofgoods only (ie not services) and impliescertain terms into contracts for the sale ofgoods.The commentary in the following paragraphsdeals primarily with the consumerprotections contained in the ACL.

350 The Law HandbookProtections in relation to trader conduct[11.30] UnconscionableconductThe former legislative provisions againstunconscionable conduct are now embodiedin the ACL, Pt 2-2. The Law itself containsno definition of “unconscionable conduct”.However, in considering whether conduct isunconscionable, the court may consider aseries of factors (s 21) not limited to butincluding:(a) the relative strengths of the bargainingpositions of the supplier and the consumer;and(b) whether, as a result of conduct engagedin by the person, the consumer wasrequired to comply with conditions thatwere not reasonably necessary for theprotection of the legitimate interests ofthe supplier; and(c) whether the consumer was able to understandany documents relating to thesupply or possible supply of the goodsor services; and(d) whether any undue influence or pressurewas exerted on, or any unfairtactics were used against, the consumeror a person acting on behalf of theconsumer by the supplier or a personacting on behalf of the supplier inrelation to the supply or possible supplyof the goods or services; and(e) the amount for which, and the circumstancesunder which, the consumer couldhave acquired identical or equivalentgoods or services from a person otherthan the supplier.[11.40] Misleading anddeceptive conductThe former provisions are now contained ins 18 of the ACL. A person must not in thefield of trade or commerce engage in conductwhich is misleading or deceptive, orlikely to mislead or deceive. The prohibitionis in very wide terms and covers advertising,behaviour in the course of negotiating acontract, and behaviour afterwards. Theprovision is concerned with conduct, notcontract. It is unnecessary to prove that theconduct was fraudulent or even negligent. Itis necessary to prove that the conduct wasmisleading or deceptive, and that the complainantrelied upon it, or was induced by itand thereby suffered loss.[11.50] Unfair terms incontractsPart 2-3 of the ACL covers unfair terms incontracts. The provisions deal only withconsumer contracts, ie a contract for thesupply of goods or services or the sale orgrant of an interest in land to an individualwhose acquisition of the goods, services orinterest is wholly or predominantly forpersonal, domestic or household use orconsumption.See also the Contracts Review Act whichdeals with contracts or terms of contractswhich are unjust in light of the circumstancespertaining to the contract at the timethe contract was made.If a term of a consumer contract is foundto be unfair under Pt 2-3 of the ACL theterm may be void. The balance of thecontract will remain on foot if it is capable ofoperating without the unfair term. In orderfor a term of a contract to be void, it isnecessary both that the term be unfair andthat the contract be a standard form contract.Terms which define the main subject matterof the contract, or set the upfront pricepayable, or which are required or expresslypermitted by law, are not covered (s 26).Section 24 provides that a term is unfair if:(a) it would cause a significant imbalance inthe parties’ rights and obligations arisingunder the contract; and

11 Consumers 351(b) it is not reasonably necessary in order toprotect the legitimate interests of theparty who would be advantaged by theterm; and(c) it would cause detriment (whether financialor otherwise) to a party if it wereto be applied or relied on.Section 25 sets out the following nonexhaustivelist of examples of the kinds ofterms that may be unfair:(a) a term that permits, or has the effect ofpermitting, one party (but not anotherparty) to avoid or limit performance ofthe contract;(b) a term that permits, or has the effect ofpermitting, one party (but not anotherparty) to terminate the contract;(c) a term that penalises, or has the effect ofpenalising, one party (but not anotherparty) for a breach or termination of thecontract;(d) a term that permits, or has the effect ofpermitting, one party (but not anotherparty) to vary the terms of the contract;(e) a term that permits, or has the effect ofpermitting, one party (but not anotherparty) to renew or not renew the contract;(f) a term that permits, or has the effect ofpermitting, one party to vary the upfrontprice payable under the contract withoutthe right of another party to terminatethe contract;(g) a term that permits, or has the effect ofpermitting, one party unilaterally tovary the characteristics of the goods orservices to be supplied, or the interest inland to be sold or granted, under thecontract;(h) a term that permits, or has the effect ofpermitting, one party unilaterally todetermine whether the contract has beenbreached or to interpret its meaning;(i) a term that limits, or has the effect oflimiting, one party’s vicarious liabilityfor its agents;(j) a term that permits, or has the effect ofpermitting, one party to assign the contractto the detriment of another partywithout that other party’s consent;(k) a term that limits, or has the effect oflimiting, one party’s right to sue anotherparty;(l) a term that limits, or has the effect oflimiting, the evidence one party canadduce in proceedings relating to thecontract;(m) a term that imposes, or has the effect ofimposing, the evidential burden on oneparty in proceedings relating to thecontract;(n) a term of a kind, or a term that has aneffect of a kind, prescribed by theregulations. (Note: at the time of writingno such terms had been prescribed.)An example of an unfair term would be agym membership contract where the operatormay unilaterally vary the date forautomatic debit of a monthly fee withoutnotice, or vary the hours of business andservices offered.There is a presumption that a contract is astandard form contract until the contrary isproven. Refer to s 27 for a list of the matterswhich a court must take into account indetermining whether a contract is a standardform contract.[11.60] Illegal marketingpracticesChapter 3 contains a range of more specificconsumer protection provisions.Part 3-1, Division 1 is directed towardsspecific types of false or misleadingrepresentations. Prohibited conductincludes:• s 29: False or misleading representationsabout goods or services• s 30: False or misleading representationsabout sale etc. of land• s 31: Misleading conduct relating toemployment• s 32: Offering a rebate, gift or prize withthe intention of not providing it, or notproviding it as offered• s 33: Misleading conduct as to the natureof goods• s 34: Misleading conduct as to the natureof services• s 35: Bait advertising• s 36: Wrongly accepting payment• s 37: Making certain misleading representationsabout particular businessactivities, including business activities

352 The Law Handbookthat are represented as being able to becarried out from a person’s home.Division 2 of Part 3-1 deals with the supplyof unsolicited goods and services. Therecannot be a demand for payment for theprovision of unsolicited goods or servicesunless there is a reasonable belief that thereis a right to receive payment. The burden ofproof rests on the person who makes theunsolicited supply. A person who receivesunsolicited goods must permit a supplier torecover possession within a three-monthperiod, but if there is no attempt at recovery,the goods become those of the recipient atthe end of that period, and there can be nodemand for payment.Division 3 covers pyramid sales. There isan absolute prohibition on these schemes.Division 4 deals with multiple pricing. Ifthere is more than one displayed price forgoods, the sale must be made at the lowestprice shown.Division 5 deals with other unfairpractices.Section 49 prohibits referral selling. Thatis, inducing a sale by promising that thepurchaser will receive a benefit in return forsupplying the names of other prospectivepurchasers, or otherwise assisting the sellerto supply goods or services, if the benefit iscontingent on an event occurring after thesale is made. An example would be where aseller induces a customer to purchase productsby offering a discount or rebate inreturn for the name of another prospectivepurchaser, but the rebate is only payable ifthe prospective purchaser named by thecustomer also makes a purchase down thetrack.Section 50 prohibits the use of physicalforce, or undue harassment or coercion, inconnection with the supply, or possiblesupply, or payment for, goods or services oran interest in land.[11.70] Consumer guaranteesDivision 1 of Pt. 3-2 sets out a number ofguarantees which are implied into transactionswith consumers. The concept of “consumer”is complex. However, broadlyspeaking a person will be taken to haveacquired goods or services as a consumerwhere either the goods or services suppliedare of a kind ordinarily acquired forpersonal, domestic or household use orconsumption, or where the contract pricedoes not exceed $40,000.The majority of the consumer guaranteesapply only to supplies made in trade orcommerce.The guarantees include:• s 51: Guarantee as to title• s 52: Guarantee as to undisturbedpossession• s 53: Guarantee that goods are free fromundisclosed securities• s 54: Guarantee as to acceptable quality• s 55: Guarantee as to fitness of goods forany disclosed purpose• s 56: Guarantee that goods supplied bydescription will correspond with thedescription• s 57: Guarantees in relation to goodssupplied by reference to a sample ordemonstration model, including that thegoods will correspond with the sample ordemonstration model in quality, state orcondition• s 58: Guarantee as to availability ofrepairs and spare parts• s 59: Guarantee that there will be compliancewith any express warranties givenor made by the manufacturer or supplierof goods• s 60: Guarantee that services will berendered with due care and skill• s 61: Guarantees as to fitness of servicesfor any disclosed purpose• s 62: Guarantee that services will besupplied within a reasonable time (unlessthe time for supply is fixed by contract oris to be determined in a manner agreed toby the supplier and the consumer).These guarantees cannot be excluded orlimited by contract (see s 64). However,there are some special allowances for recreationalservice providers and also someexclusions to the general provisions. Theguarantees do not apply to goods purchasedfor resupply. Thus, if a retailer purchasesgoods of a type normally used for personal,household or domestic purposes, the retaileris not considered a consumer and the

11 Consumers 353consumer guarantees will not apply. Thesame applies to goods purchased for thepurpose of using them up or transformingthem, in trade or commerce, in the course ofproduction or manufacture, or in the courseof repairing or treating other goods orfixtures on land.Another important exclusion relates toauctions. Where a supply occurs by way ofsale by auction, the guarantees as to acceptablequality, fitness for a disclosed purpose,correspondence with description or sample,availability of repairs or spare parts andcompliance with express warranties, do notapply. Importantly, the term “sale by auction”has a limited meaning in the ACL. Saleby auction in relation to the supply of goodsby a person means a sale by auction that isconducted by an agent of the person(whether the agent acts in person or byelectronic means).It is helpful to consider the guarantee asto acceptable quality in closer detail. TheSale of Goods Act, s 19 implies a conditionthat goods sold be of “merchantablequality”. Such an implied term was alsocontained in the former provisions of theTrade Practices Act (Cth) and the Fair TradingAct. That term has vanished from the ACL,which now speaks of “acceptable quality”(s 54). The phrase “acceptable quality” isdefined broadly. Goods are of acceptablequality if they are as fit for all the purposesfor which goods of that kind are commonlysupplied, as acceptable in appearance andfinish, as free from defects, as safe, and asdurable, as a reasonable consumer wouldfind acceptable having regard to the natureand price of the goods, any statements madeabout the goods on any packaging orlabelling, any representation made about thegoods by the supplier or manufacturer, andany other relevant circumstances relevant tothe goods.While this term is relatively new toAustralia, it has been considered by superiorNew Zealand courts in relation to comparableNew Zealand legislation. Cases theresuggest that the new guarantee is morefavourable to the consumer than that ofmerchantability, mainly because of thebroadness of the requirement that the goodsbe “fit for all purposes for which goods ofthat kind are commonly supplied”. Bycontrast, goods are considered to be ofmerchantable quality if they are fit for anypurpose for which the goods would normallybe used.The guarantee of acceptable quality willnot apply in the following situations:• where defects in the goods have specificallybeen drawn to the consumer’s attentionbefore a contract is made, or• if the consumer examined the goodsbefore the contract was made, and areasonable examination ought to haverevealed that they were not of acceptablequality.[11.80] Guarantees as toservices - exclusionsAs noted, there are several guarantees withregard to the supply of services. There aresome services to which these guarantees donot apply. These include the following:• the guarantee of fitness for any disclosedservices does not apply to services ofarchitects and engineers;• the service guarantees do not apply tocontracts for the transport or storage ofgoods where the recipient of the servicesis engaged in business, trade or commerceand the services are supplied forthat purpose; and• the service guarantees also do not applyto contracts of insurance.[11.90] Remedies for failure tocomply with consumerguaranteesIf goods or services fail to meet a guarantee,a consumer will have rights against thesupplier, and in some cases themanufacturer. These are set out in Division 1of Part 5-4 of the ACL.Where a failure to comply with a consumerguarantee is minor, the consumermay require the supplier to remedy thefailure within a reasonable time. Where the

354 The Law Handbookfailure to comply relates to goods, thesupplier can choose between providing arepair or offering the consumer a replacementor refund.Where there is a major failure to complywith a guarantee pertaining to goods, theconsumer can choose between rejecting thegoods and choosing a refund or replacement,or keeping the goods and receiving compensationfor the reduction in value.Where there is a major failure to complywith a guarantee pertaining to services, theconsumer can choose between cancelling thecontract and receiving a refund, or keepingthe contract and receiving compensation forthe difference in value.In addition to the above, a consumer mayrecover damages for any loss or damagesuffered by the consumer because of afailure to comply with a guarantee pertainingto goods or services, if it was reasonablyforeseeable that the consumer would suffersuch loss or damage as a result of thefailure.[11.100] Unsolicited consumeragreementsDivision 2 of Part 3-2 regulates unsolicitedconsumer agreements.In summary, a person who makes unsolicitedcontact with consumers in order toenter an agreement for the supply of goodsor services must comply with a number ofrequirements. These include:• not contacting the consumer outside prescribedbusiness hours;• making certain disclosures to the consumerboth before commencing negotiationsand before the agreement is made;• ensuring the agreement is in writing andthat a copy is given to the consumerimmediately after the agreement is made(or within five business days if theagreement is negotiated by telephone);and• not accepting or requesting payment ormaking supplies during the ten daycooling off period.A consumer may terminate an unsolicitedagreement within ten days after the agreementwas made (or if the agreement wasnegotiated by telephone, within ten daysafter the consumer was given a copy of theagreement). A consumer may also cancel anunsolicited agreement within three or sixmonths if certain requirements have notbeen met. The agreement may be terminatedby the consumer giving the supplier writtenor oral notice of the consumer’s intention toterminate.[11.110] Injuries or damagefrom unsafe goodsA number of actions may be open to aperson who suffers injury from goods whichdo not meet the guarantees. The injuredperson may be able to rescind any contractand sue for the recovery of money paid.There may also be remedies available, suchas damages for breach. This ability mayhave been strengthened by the introductionof the definition of acceptability in the ACL.As well as an action for breach of contract,an injured person may have an action underthe law of torts for negligence. The ability toseek damages has been substantially modifiedby the Civil Liability Act 2002 (NSW)(see chapter 3, Accidents and compensation).Before a person may claim damages fornon-economic loss, it is necessary to showthat the injuries suffered are at least 15% of amost severe case.[11.120] Lay-by salesLay-by sales used to be very commontransactions though are less popular today.The provisions addressing lay-by sales areset out in the ACL at ss 188–191. Agreementsmust be in writing and a copy of theagreement provided to the consumer. If theagreement is terminated, the consumer isentitled to recover all monies paid, less anytermination fee, pursuant to the terms of theagreement.[11.130] RemediesThe ACL provides a broad range of remediesto ensure compliance. Some of thesehave already been addressed above. Inaddition, there is the general ability of acourt to order payment of compensation for

11 Consumers 355loss or damage suffered because of a breach prevent contravening behaviour, on the apofthe consumer protection provisions plication of a regulator or other person(s 236). An injunction may also be granted to (s 232).[11.140] Real estate agentsThe Property, Stock and Business Agents Act2002 (NSW) (the Act) gives substantial protectionto a consumer, in addition to therights set out in the Australian ConsumerLaw. There must be a written agreement inaccordance with the terms of the nowrepealed Property, Stock and Business AgentsRegulation 2003 (NSW). The former regulationswere repealed on 1 September 2014 bys 10(2) of the the Subordinate Legislation Act1989. The Property, Stock and Business AgentsRegulation 2014 (NSW) now applies. Theintention of the amending regulation is tomake minor amendments to the provisionsof the former regulation. An agency agreementmust be in writing, signed by bothparties setting out essential information. Acopy of the agreement must be served onthe consumer by the licensee within 48 hoursof entering into the agreement. A court ortribunal has power to waive service withinthat period. In the absence of an agreementproperly served, an agent may not recoverfees or other remuneration.Pursuant to s 36 of the Act, an agentcannot commence proceedings for the recoveryof his fees until 28 days after a statementof claim has been served on the personcharged with payment of the remunerationor expenses.The statement of claim must particularisethe amount claimed and contain details ofthe services performed in respect of whichthe remuneration or expenses are claimed.A person who is served with a statementof claim may apply to NCAT for a determinationof a consumer claim provided theperson can satisfy the Tribunal that they area consumer for the purposes of the ConsumerClaims Act 1998 (NSW).The consumer may seek an order from theTribunal that the licensee/agent is onlyentitled to part of the amount specified inthe claim. Alternatively, the consumer maychallenge whether the whole of, or any partof the amount claimed, is reasonable.It is important to note that the consumerof an estate agent’s services is usually avendor or the landlord.[11.150] Motor vehiclesA purchaser of a motor vehicle from a dealerwill have the protections given in the AustralianConsumer Law to purchasers ofgoods in a consumer transaction. In addition,there are protections under the Motor DealersAct 1974 (NSW). Dealers are required to belicensed and are subject to disciplinaryproceedings for breach of this Act. The Actalso gives rights to consumers, the extent ofthe right given depending upon the age ofthe vehicle being sold and the distance it hastravelled at the time of sale. A dealer hasobligations to repair vehicle faults reportedduring a warranty. The following table is asimplified version of Schedule 1 to that Act:

356 The Law HandbookMotor cycles Kilometres Period of warrantytravelledMotor cycle (that has been driven for less than 10,000 (after 6 months less 1 month for each7000 km at the time it is sold by dealer) manufacture) 2000 km that the motor cycle hasbeen driven before sold by dealerMotor cycle (not being a motor cycle that is of such 3000 (after sale) 3 monthsdesign as to be incapable of being registered in NewSouth Wales, or a second-hand motor cycle) that hasbeen driven for 7000 km or more at the time it is soldby dealerMotor cycle (not being a second-hand motor cycle) 5000 (after sale) 3 monthsthat is of such design as to be incapable of beingregistered in New South WalesSecond-hand motor cycle (not being a motor cycle of 3000 (after sale) 3 monthssuch design as to be incapable of being registered inNew South Wales) that has been driven for not morethan 30,000 km and was manufactured not morethan 5 years before the time it is sold by dealerOther motor vehicles Kilometres Period of warrantytravelledMotor vehicle (not being a second-hand motor 20,000 (after 12 months less 1 month for eachvehicle) that has been driven for less than 15,000 km manufacture) 2000 km that the vehicle has beenat the time it is sold by dealerdriven before sold by dealerMotor vehicle (not being a second-hand motor 5000 (after sale) 3 monthsvehicle) that has been driven for 15,000 km or more atthe time it is sold by dealerSecond-hand motor vehicle that has been driven for 5000 (after sale) 3 monthsnot more than 160,000 km and was manufacturednot more than 10 years before the time it is sold bydealerThe effect of this scheme is that there is nodealer warranty where a motor cycle hastravelled more than 30,000 km or is morethan five years old, or for other vehicles, thevehicle has travelled more than 160,000 kmat the date of sale, or is more than 10 yearsold. There are some exceptions to itemswhich must be repaired. These includeconsumable items, such as batteries andtyres, as well as chains and sprockets formotor cycles. The obligation does not extendto damage occasioned in an accident or bymisuse by the driver (not necessarily theowner), or arising from the use of thevehicle for racing or rallying. In addition, itdoes not extend to superficial damage topaintwork or upholstery, if that were apparenton a reasonable inspection at the time ofsale. Finally, it does not cover any defectdescribed either in an inspection report, orin a notice attached to a second-hand vehicle.The warranty obligation of a dealer must beset out in a notice given to the purchaser atthe time of sale.There are some provisions of more generalapplication. A notice in the prescribedform must be attached, and essential informationon the form includes the identificationof the vehicle with the inclusion of theregistration and the Vehicle IdentificationNumber, the distance the vehicle has travelledand the price demanded at the timethe notice is affixed. The notice must also setout the sum for which the vehicle is actually

11 Consumers 357sold and the distance it has covered at thetime of sale. If the vehicle sold is excludedfrom the statutory warranties set out above,this must be set out on the notice. A similarnotation must be on the notice attached to avehicle being sold at auction.Complaints about motor vehicles form amajor area of consumer disputes, both inrespect of alleged breaches of the dealer’sobligation to repair under the Motor DealersAct, and alleged breaches by the dealer ormanufacturer of the vehicle under the consumerprotection provisions of the Competitionand Consumer Act. In the first instance, ifthe consumer is unable to reach a satisfactoryarrangement with the dealer, the purchasershould contact a Fair Trading Centre.Should that not be effective, a claim may belodged with the NSW Civil and AdministrativeTribunal. Such disputes are dealt within the Consumer and Commercial Divisionof the NSW Civil and AdministrativeTribunal. It may be worth noting that whilethe upper limit which that Tribunal mayaward on a consumer claim is currently$40,000 (in respect of applications filed on orafter 9 May 2014), the usual limits do notapply in relation to a consumer claim arisingfrom the supply of a new motor vehicle (ie avehicle that does not come within thedefinition of a “second hand motor vehicle”in the Motor Dealers Act, and such definitionincludes demonstrator motor vehicles) thatis used substantially for private purposeswithin the meaning of the Motor VehiclesTaxation Act 1988 (NSW). There is no maximumsum which may be ordered where theclaim concerns such a vehicle.There are some other obligations on motordealers. A roadworthiness certificate musthave been obtained within the month priorto the sale. There is also a guarantee of title.A purchaser who buys in good faith from adealer gets an unencumbered title to it onpurchase, even if there is money outstandingunder a prior finance arrangement.The protections given in a purchase froma private person are much more limited. Theconditions of merchantability and fitness forany purpose made known at the time thecontract was formed, implied by the Sale ofGoods Act, s 19, remain. None of the consumerprotection provisions of Pt 8 of thatAct, or those in the Australian ConsumerLaw, apply. There is no cooling-off period,the warranties given under the Motor DealersAct do not apply, and there is no guaranteeas to title. A purchaser in these circumstancesshould have a mechanical inspectionbefore agreeing to buy, and carry out aREVS check.Importantly, the law relating to the rightsof consumers regarding the sale of motorvehicles by licensed dealers, or the repair ofvehicles by licensed repairers, will changewhen the Motor Dealers and Repairers Act2013 (NSW) is proclaimed. This legislationwas assented to by NSW Parliament on27 November 2013, but has yet to beproclaimed as Regulations to the Act are inthe process of being finalised. It is anticipatedthe legislation will come into effect inlate 2014. The legislation will replace theMotor Dealers Act and the Motor VehicleRepairs Act 1980 (NSW). Although the dealerwarranty provisions of the new Act remainbroadly consistent with the Motor DealersAct, an important change in the new legislationis that consumers will be able, prior tocommencing legal proceedings, to make acomplaint to NSW Fair Trading about “unjustconduct” by dealers (including thefailure to comply with the dealer warrantyon the vehicle, or failing to adequatelyrepair the vehicle) and NSW Fair Tradingwill have the power to order that the dealerperform repairs to the vehicle.[11.160] Extended warrantiesA common practice amongst dealers is tosell to a purchaser an extended warranty. Asales technique is to offer such a warranty asa means of closing a sale at a particularprice. These are not warranties offered bythe dealer, but by a separate company. Theynormally limit the protection given by excludingliability not just for consumableitems such as tyres and batteries, but alsofor damage resulting from overheating theengine, and for failure to follow a manufacturer’smaintenance schedule. If the warrantyprovider refuses to repair the vehicle,or repairs it inadequately, in circumstances

358 The Law Handbookwhere they are contractually obliged to doso, proceedings can be brought by theconsumer against the warranty provider forbreach of any relevant consumer protectionprovision contained in the Competition andConsumer Act or breach of contract, in theNSW Civil and Administrative Tribunal.[11.170] Sales on consignmentA particular problem emerged in the early1980s. People wishing to sell their vehicles,rather than trade them in, would hand themto someone to sell for them on consignment.The vehicle would be delivered and commonlya signed transfer handed over. Often,there would be no written agreement recordingthe terms of the arrangement, andin particular, there would be no writtenrecord of the minimum price at which thevehicle was to be sold. Disputes would arisewhen the owner of the car received less thanthe sum expected. In several instances, theconsignee became bankrupt before the monieswere paid to the consignor.In 1985, Pt 4A was introduced into theMotor Dealers Act. It required a dealer whosold on consignment to open a trust accountinto which purchase monies were to be paid,no later than the next day upon which abank was open. Money could only bewithdrawn from that account to pay theconsignor of the vehicle, to pay any debtproperly payable by the assignor to thedealer, or to pay any other amount permittedby the regulations. The account wassubject to audit. Finally, there were somedisciplinary provisions for breach. Such provisionsare also contained in Pt 4 Division 6of the Motor Dealers and Repairers Act 2013(not yet in force).While these amendments did not addressmany of the issues which had arisen, theydid provide security for the monies received.A person who wishes to proceed to sell avehicle on consignment should make surethat all details such as the minimum saleprice, and the fee to be paid, are recorded inwriting and signed by the consignee.[11.180] LawyersThere is a very detailed scheme under theLegal Profession Act 2004 (NSW) to protectclients of lawyers. A lawyer is required toprovide to a client the best estimate of feesthen able to be made, and details of the ratesof fees charged by the lawyer for particularitems of service. The client also must begiven information on the right to negotiatefees, to receive a detailed bill, and to beadvised of any substantial change in theestimate and rates. There is a range of otherdetailed advice which must be provided,including the rate of interest charged onunpaid accounts, and the intervals at whichbills will be presented for payment. Theclient must also be informed of the right toseek an assessment of any bill. If thisinformation is not provided, any fees recoverablewill be calculated by reference towhat an assessor considers to be a reasonablerate, which may not be the rate usuallycharged by the lawyer. In addition, anassessor may reduce the sum payable becauseof the seriousness of any failure.A client must receive a detailed bill ofcosts before the lawyer may recover money.If a client considers that the fees areexcessive, a request may be made for thecosts to be assessed by an independentassessor. Before that process is undertaken,there may be a referral to mediation. TheAct contains provisions for appeal.If a lawyer receives money on trust for aclient, the strict accounting provisions of theAct apply. A lawyer receiving trust moneymust operate a trust account and all trustmonies are to be paid into that account.Only withdrawals authorised by a client ordirected by a court may be made from thetrust account. Withdrawals for this purposeinclude transfers from the trust account tothe general account for fees. A lawyer must

11 Consumers 359not transfer money for fees without expressinstructions.Other complaints about lawyers havetheir base in the manner in which the lawyerconducted the client’s affairs. The generalprovisions of the Australian Consumer Lawapply to lawyers, and therefore the guaranteethat the services will be carried out withdue care and skill applies. In addition to thisstatutory law, there is a large body of caselaw which sets out the nature of the dutiesowed by a lawyer to a client. A generalexclusion of liability relates to work carriedout by a lawyer in court, or very closelyrelated to work carried out in court. Theprovisions of the Civil Liability Act, and inparticular the provisions of s 5O of that Act,apply to the provision of legal services.A failure by a legal practitioner to complywith the provisions of disclosure, or ofovercharging, could amount to unsatisfactoryprofessional conduct. In a serious case,or if the failure was part of a pattern, itcould be professional misconduct. Failure bya lawyer to comply with the strict provisionsconcerning trust money would be professionalmisconduct. Generally, simple negli­gence would not involve disciplinaryproceedings. A consumer with a complaintconcerning a lawyer should consider makingthat complaint to the Legal ServicesCommissioner.A lawyer operating a trust account isrequired to make a contribution to a fund,from which money is payable to compensatevictims of a defaulting lawyer (the LegalPractitioners Fidelity Fund under Pt 3.4 ofthe Legal Profession Act). Any claim by theclient of a lawyer in respect of the FidelityFund is made to the Law Council, and issubject to the limitation provisions containedin s 437 of the Legal Profession Act.Lawyers are also required to have professionalindemnity insurance with an approvedinsurer to provide funds to compensatea client who has suffered loss ordamage from negligence. Actions by a clientagainst a lawyer for losses due to professionalnegligence and/or breach of contractmay be taken in a court with appropriatejurisdiction (usually the District Court orSupreme Court) and the relevant limitationperiods in respect of negligence and/orbreach of contract will apply.[11.190] ConveyancersUntil the commencement of the ConveyancersLicensing Act 1995 (NSW), only a lawyercould act for someone else on the purchaseor sale of property. This Act created a rolefor non-lawyers to act in conveyancingtransactions. The Act has now been repealedby the Conveyancers Licensing Act 2003(NSW). The work of a conveyancer islimited to the sale or lease of land, the saleof a business, and the grant of a mortgage orcharge; general legal work must not beundertaken. A conveyancer is required to belicensed under the Act, and to maintain atrust account in a manner similar to that of alawyer.A conveyancer must provide a disclosureto a client of the estimated fees for atransaction, and the rates of fees. A clientmust be informed of billing arrangementsand any conflicts of interest. If there is adispute concerning fees, a person may notifyNCAT (formerly the Consumer, Traderand Tenancy Tribunal) of the dispute. If itconsiders it appropriate, the Tribunal mayrefer the subject matter of the dispute to anindependent expert for assessment. If noresolution is able to be reached, an applicationmay be made to the Tribunal for orders.As the Act is administered by the NSWFair Trading, a first approach should bemade to a Fair Trading Centre if a disputearises concerning costs. If that does notachieve a resolution, then a consumer shouldnotify the Tribunal, thus setting into operationmore formal measures to resolve theissues.As with lawyers, the guarantee in s 60 ofthe Australian Consumer Law, requiring that

11 Consumers 361to commence proceedings to obtain aremedy. The choice then is whether to takethose proceedings in the New South WalesCivil and Administrative Tribunal, or in oneof the traditional courts. The Tribunal’sgeneral upper limit on consumer claims(subject to what appears below) is $40,000.Where there is a claim for more than that,which will normally be the case for claimsfor personal injury, the proceedings must bein a traditional court.What advantages are there in proceedingbefore the Tribunal? The first is that the feeto file an application is much lower thanother courts. Legal representation is notnormally permitted, unless the Tribunalgrants it. There has to be a special order ofthe Tribunal to permit legal representation,and before making an order, the Tribunalmust be satisfied that tests have beensatisfied. In the traditional courts, an unsuccessfulparty is normally ordered to pay thecosts of the opponent. Before the Tribunalmay make a costs order, it must be satisfiedthat special circumstances exist. This provisiongives some protection to a consumerwho has been unable to prove liability onthe part of the other party. On the otherhand, it may be necessary for a consumer toobtain some evidence to support the claim;even if the consumer is successful, theopponent cannot be ordered to pay thosecosts unless the Tribunal is satisfied thatspecial circumstances exist.Proceedings before the Tribunal are muchless formal than those in a traditional court.The Tribunal is required “to resolve the realissues in proceedings justly, quickly, cheaplyand with as little formality as possible” andthe Tribunal still requires evidence to supportthe claim and is required to follow therules of procedural fairness, but the Tribunalmay dispense with many formalities. Beforemaking an order, the Tribunal must use itsbest endeavours to bring the parties to theirown resolution of the dispute. At its Sydneyhearing rooms, and at rooms at some majorcentres, the Tribunal has specialist Membersand registry officers to help parties reachtheir own resolution of a dispute byconciliation. In some larger matters, a claimmay be listed for mediation, again before aspecialist Member. In addition to thesesteps, each Tribunal Member hearing a claimwill take individual steps to bring theparties to their own resolution.The Tribunal also has obligations to ensurethe:• parties understand the assertions each ismaking in the proceedings;• legal implications of those assertions;• procedures adopted by the Tribunal; and• Tribunal’s decision.Generally, decisions are given orally at thehearing. A party may request a writtenstatement of reasons within 28 days ofbecoming aware of the Tribunal’s decision.The Tribunal may make a range of orders.It may make an order:• for the payment of money;• that defective goods or services be fixed;• goods be returned;• goods be replaced;• that money claimed to be owing is in factnot owing;• a combination of these.It may also order that the proceedings bedismissed.There is no limit in relation to claims inrespect of a new motor vehicle that is usedsubstantially for private purposes within themeaning of the Motor Vehicles Taxation Act.In addition, there is no limit on claimsconcerning the commission payable to anagent under the Property Stock and BusinessAgents Act, s 36.An important area excluded from theTribunal’s jurisdiction is claims concerningthe reasonableness of a lawyer’s costs.The Tribunal hears claims at many venuesthroughout the State. There are limitedgrounds to set aside a decision when oneparty did not appear at the hearing. Inaddition, there may be an internal appeal tothe appeals division of the Tribunal. TheSupreme Court retains power to reviewquestions of the Tribunal’s jurisdiction, or ifthere has been a denial of natural justice.The Tribunal has no enforcement powersof its own. If it has made an order for thepayment of money, and the money is notpaid, the order may be registered in a courtand enforced as if it were a judgment of that

362 The Law Handbookcourt. If an order has been made for work tobe carried out, or for goods to be returned,and that order has not been complied with,the application may be renewed by theperson in whose favour the order has beenmade. That person files a notice of renewal,which must be done within 12 months of thefinal date for compliance.[11.230] Energy consumersBoth electricity and gas industries haveundergone a process of reform since themid-1990s (electricity) and early 2000s (gas).One recent significant reform has been theharmonisation of state-based regulations forthe electricity and natural gas retail marketsand distribution sectors into a single set ofnational rules, under the National EnergyConsumer Framework (NECF). The NECFwas formally adopted in NSW on 1 July2013. Under the NECF the term “energy”covers both electricity and natural gas.Generally the main pieces of legislation/regulations under the NECF are the NationalEnergy Retail Law (NERL) and the NationalEnergy Retail Rules (NERR). The NERL providesthe “big picture” provisions regulatingthe supply and sale of energy to small retailcustomers, whereas the NERR provides thedetailed content to these provisions.While the NECF provides a consistent setof customer protection measures,government-funded rebate and emergencyassistance programs remain under statejurisdiction.Customers in NSW have a choice ofwhich retailer supplies their energy services.Customers can choose to enter into a marketretail contract with an electricity or gasretailer (see Energy contracts at [11.240]).Electricity customers in NSW normallyhave direct dealings with electricity suppliersfrom two sectors of the industry: distributors(or networks) and retailers.• Distributors are responsible for the “polesand wires” that bring the power to acustomer’s property (see Maintenance andupgrade of services at [11.530]). NetworkNSW was created in 2013 and it ownsand operates the three distribution areascovering most of Sydney and the HunterValley (Ausgrid), Western Sydney and theIllawarra (Endeavour Energy); and therest of NSW (Essential Energy). Privatisationof Ausgrid and Endeavour Energy isplanned for 2015.• Retailers sell electricity to customers on acontractual basis (see Energy contracts at[11.240]).Likewise natural gas customers in NSWmay have dealings with the distributorwhen there are supply problems or leaks inthe street, but most of their business will bewith the retailer. In NSW there are sixreticulated gas distributors:• Jemena, covering the Illawarra, Sydney,Central Coast, Hunter, SouthernHighlands, Blue Mountains, Riverina,Central West and Orana• ActewAGL, covering Queanbeyan, Bungendoreand Nowra• Albury Gas Company, covering Albury• APT Allgas Energy, covering TweedHeads• Central Ranges Pipeline, coveringTamworth• Envestra (NSW), covering Riverina,Temora, Cooma, Bombala and MurrayValley.

11 Consumers 363Energy contracts[11.240] Opening and closingaccountsIt is important for customers to open anenergy account when they move into a newproperty and to close the account whenmoving out, to avoid paying for the energyuse of others. A security deposit may becharged on the opening of a new account(see Security deposits at [11.270]).[11.250] Types of contractsWhen opening an account, energy customersare entitled to choose between thefollowing types of contracts for their energyservices:• A standard retail contract with standingoffer tariffs which are set by the retailer,and standard terms and conditions (seeSchedule 1 of the NERR)• A standard retail contract with an agreedretail price approved by the IndependentPricing and Regulatory Tribunal (IPART),and standard terms and conditions (gasonly)• A market retail contract with competitivetariffs and terms and conditions that mayvary from contract to contract.Retail electricity prices were deregulated inNSW from 1 July 2014 and regulated tariffsare no longer available. Retail gas prices aresubject to voluntary retail pricing that areagreed to between IPART and the local arearetailer (see below), and are also known as“regulated offer prices” (NERL, s 37C).All retailers must have a standing offer,which gives domestic and small retail customersthe automatic right to supply (seeNERL, s 22 – 32). Small retail customers arethose who consume less than 100 megawatthours (MWh, which is 1,000 kilowatt hours)of electricity per year or less than 1 terajoule(TJ, which is 1,000,000 megajoules) of gasper year (National Energy Retail Law (Adoption)Regulation 2013 (NSW), cl 4(1)).Where the customer is opening an accountat a site without a previous connection, theyhave an automatic right to supply from thelocal area retailer for the relevant geographicalarea (NERL s 2 definition of “designatedretailer”).The local area retailers for electricity are:• Origin Energy for premises in EssentialEnergy and Endeavour Energy’s networkareas• EnergyAustralia for premises in Ausgrid’snetwork area.The local area retailers for gas are:• Origin Energy for premises in Envestraand Central Ranges Pipeline’s networkareas• AGL for premises in Jemena’s networkarea• ActewAGL Retail for premises inActewAGL’s network area (National EnergyRetail Law (Adoption) Regulation 2013,s 5).The local area gas retailers must offer bothstanding and regulated pricing offers tocustomers (NERL, s 37C(9)).Where the customer is opening an accountat a site where there is an existingconnection, they have an automatic right tosupply from the retailer who currentlysupplies the site (NERL, s 2 definition of“designated retailer”).Alternatively, customers may be offered amarket retail contract by an energy retailer.Under a market retail contract, the quality ofenergy supply will not change but thesecontracts generally offer different terms andconditions from the standard contract andsometimes bind customers to set periods(usually two or three years) or benefits.Administrative and penalty fees may becharged in certain circumstances or if contractterms are broken, usually by earlytermination of the contract. Some retailersoffer “dual fuel” contracts which includeboth electricity and natural gas.

364 The Law HandbookIf a customer does not have a contractwith a retailer and is using energy at thesite, a deemed customer retail arrangementis taken to apply between the customer andthe current retailer of the site. This canhappen where they have moved into a siteand failed to open an account, or theircurrent market retail contract has expiredand a new contract has not been enteredinto (NERL, s 54(2)). The current retailer ofthe site has a number of obligations to fulfillas soon as they are become aware thatenergy is being consumed. These includeinforming the customer of the terms andconditions of the deemed customer retailarrangement, the customer’s options forestablishing a contract and their right todisconnect (NERR, Rule 53).[11.260] Choosing the rightcontractIf considering a market retail contract, customersshould consider:• the prices at which energy will besupplied, and whether prices are calculatedaccording to levels of usage (blocktariffs) or according to peak and off-peakusage times (time-of-use tariffs)• the cost of the service to property charge(Service Availability Charge SAC)• duration and expiry date of the contract• the arrangements when the contractexpires• any price adjustments over the life of thecontract• fees for early termination, late payment,dishonoured payment, move in/out, specialmeter reading, meter test, disconnectionand reconnection (see Late paymentfees at [11.360])• solar feed-in tariff rates• billing frequency (for example, monthlyor quarterly)• payment options (for example, BPay,Centrepay, direct debit, post office) andassociated fees• security deposit requirements.Customers have a “cooling off” period of tendays in which to cancel a market retailcontract without incurring any penalty (seeChanging your mind at [11.320]).Customers should note that transfers fromone retailer to another may not take placeimmediately, as the new arrangement willgenerally be from the next scheduled meterreading (which should be no more than90 days).For an immediate transfer, the customercan ask whether the retailer can do a specialmeter read. This service generally incurs afee (see Miscellaneous charges at [11.370]).[11.270] Security depositsEnergy retailers may request a securitydeposit when a new account is opened. Forresidential customers this can only occur atthe start of the contract, while for smallbusiness customers this may occur at thestart of or during the term of the contract(NERR, Rule 40(1)).The retailer can only request a securitydeposit under any of the following circumstances:• the customer owes money to that retailerand this is not in dispute• the customer has fraudulently acquiredenergy within the past two years• the customer has refused to provideacceptable identification• the retailer reasonably considers that thecustomer has a poor credit history• the customer has refused the retailerpermission to obtain a credit check• the customer has been offered a paymentplan and declined it or failed to pay aninstalment• the retailer reasonably considers that thecustomer has no history of or has a poorrecord of paying their account (for businesscustomers) (NERR, Rule 40(2)).If a retailer requires the customer to pay asecurity deposit because they consider thatthe customer has a poor credit history, theretailer must tell the customer that they candispute the decision (NERR, Rule 40(5)).The retailer cannot require the customerto provide a security deposit where theyhave been identified as a hardship customerby any retailer (NERR, Rule 40(3)).

11 Consumers 365Standard retail contractsIf a customer has entered a standard retailcontract, retailers must not require a securitydeposit of more than 37.5% of the customer’sestimated bills over a 12 month period.This estimation is based either on thecustomer’s billing history or the averageusage of a comparable customer over acomparable 12 month period (NERR,Rule 42(1)).Retailers are required to refund the securitydeposit, together with accrued interest,within 10 business days after a residentialcustomer completes one year of on-timepayments. Business customers are entitledto a refund when they complete two yearsof on-time payments.Customers are also refunded when theymove out, transfer to another retailer orrequest disconnection, provided the securitydeposit is not required to settle the final bill(NERR, Rule 45).Market retail contractsIf a customer has entered a market retailcontract, information about the collectionand return of security deposits will be in thecontract.[11.280] Marketing and transfersEnergy retailers and their marketing agentsmay approach customers in person by doorknocking or at shopping centre kiosks, bymail, online or by phone to sell market retailoffers.[11.290] Customer choice andexplicit informed consentA customer who is approached by a retaileror their marketing agent is not obliged tosign or agree to any contract. Customerswho decline to take up an offer will continueto receive electricity and gas services fromtheir existing retailer.A retailer must obtain the customer’sexplicit informed consent before they enterinto a market retail contract (NERL, s 38).This involves clear, full and adequate disclosureof all matters relevant to the consent ofthe customer (see Marketers must discloseinformation under [11.300]), and the customergives their consent to the offer (NERL,s 39(1)(a)).Consent can be given:• in writing, signed by the customer• verbally, so long as the verbal consent canbe verified and made the subject of arecord (eg a voice recording)• by electronic communication generatedby the customer (eg an email) (NERL,s 39(2)).The retailer must retain a record of theconsent for two years and must provide acopy to the customer on request (NERL,s 40).Customers who query whether explicitinformed consent was provided must raise acomplaint within 12 months of thetransaction. Customers can ask the retailerfor proof of their consent and if it is notproduced within 10 business days or theretailer otherwise admits that it was notobtained, the contract is void. The retailercannot recover any amount for any energysupplied as a result of the void transaction(NERL s 41(a), (b) and (c)), subject to theinformation below.For electricity customers: The retailer shouldtransfer the customer back to their previousretailer, however this depends on the lengthof time which has passed since the voidtransaction occurred:• if the transaction occurred less thansix months ago, market procedures allowthe retailer to retrospectively transfer thecustomer back to their previous retailer.This places the customer in the sameposition they were in before thetransaction, and they will be billed by theprevious retailer for the energy suppliedas if the transaction had not occurred.Any payment made to the retailer mustbe transferred to the previous retailer

366 The Law Handbook• if the transaction occurred more thansix months ago, market procedures preventthe retailer from retrospectivelytransferring the customer back to theirprevious retailer as if the transaction hadnot occurred. Instead, the transfer canonly be backdated to six months, whichmeans that the retailer may be financiallyresponsible for the customer’s site for oneor two billing periods prior to thebackdate. The retailer cannot bill thecustomer for these periods (NERL, s 41(5),and see AEMO MSATS Procedures: CATSProcedure Principles and Obligations).For gas customers: The six month limit ruledoes not apply to gas customers and thetransfer can go back to the date of the voidtransaction. The customer’s previous retaileris entitled to bill the customer as if thetransaction had not occurred. Any paymentmade to the retailer must be transferred tothe previous retailer (NERL, s 41(5)).If the void transaction did not involve thetransfer of the customer from one retailer toanother (eg if their existing retailer hadoffered the customer a different contract),the customer will be billed for the energysupplied under their existing contract(NERL, s 41(4)).Transfers where there has been nocontact with a marketerA customer (Customer A) might find thatthey have been transferred to another retailerwithout their explicit informed consentor contact by a marketer. This canhappen when another customer (CustomerB) has opened an account with a newretailer but an error has occurred as part ofthe new retailer’s administration of thetransfer process.For example, the marketer may haverecorded the address or meter number ofCustomer B incorrectly, resulting in CustomerA being transferred. If the transferoccurred less than six months ago, the newretailer can organise for a retrospectivetransfer back to Customer A’s previousretailer. This places Customer A in theposition they would have been in if the errorhad not occurred and the previous retailermay bill Customer A for the energy suppliedduring this period.If the retrospective transfer fails or, in thecase of electricity customers, if more thansix months has passed since Customer A’ssite was taken in error, the new retailercannot bill Customer A for any period in theabsence of their explicit informed consent(NERL, s 41(3)).[11.300] Door-to-door andtelephone marketingEnergy marketers must abide by consumerprotections in the Australian Consumer Law(ACL). Customers who feel that marketershave breached the ACL should contact theenergy retailer involved as a first step or theEnergy and Water Ombudsman NSW(EWON) if the retailer’s response is unsatisfactory(see Making a complaint at [11.580]).Retailers retain, for 12 months, a record ofall marketing activities, including details ofenergy marketing visits, telemarketing callsand any activity by their marketing agents.Retailers must also ensure that their employeeshave immediate access to these records(NERR, Rule 68).Permitted contact hoursMarketers must not contact customers:• at any time on a Sunday or a publicholiday• before 9am on any other day• after 5pm on a Saturday• after 6pm on any other day (ACL, Sch 2s 73).Marketers must disclose informationWhen selling a market contract to acustomer, energy retailers or their marketingagents must, either electronically, verbally orin writing, provide information about:• prices, fees and charges, concessions andrebates, security deposits, billing andpayment arrangements and how any ofthese may be changed• the commencement date, duration of thecontract and provisions regarding termination

11 Consumers 367• the customer’s right to withdraw fromthe contract during the ten-day coolingoff period• the customer’s right to complain aboutthe marketing activity to the retailer andto EWON (NERR, Rules 63, 64).After the customer has agreed to thecontract, this information must be providedto the customer in writing, accompanied bya copy of the market retail contract (NERR,Rule 64(2)).A marketer contacting a customer inperson must also provide an Energy PriceFact Sheet for each market offer, whichsummarises key terms and conditions of thecontract and refers the customer to theAustralian Energy Regulator’s online pricecomparison website (www.energymadeeasy.gov.au) (AER Retail Pricing InformationGuideline June 2012, see Ch 2, 3.2 and 3.3).Marketers must not mislead or deceiveEnergy marketers must not engage in misleadingor deceptive conduct, such as claimingthe marketer is representing thegovernment, insisting that a contract mustbe accepted immediately, or insisting thatcustomers show current electricity and gasbills. Marketers also must not coerce orpressure a customer into agreeing to acontract.Door-to-door marketers must identifythemselves and clearly inform the customerthat they are selling a product and they areobliged to leave the premises immediatelyon request (ACL, Sch 2 s 74, 75).Marketers must follow customer'scontact wishesEnergy marketers are restricted from contactingcustomers against their wishes or atcertain times (see Permitted contact hoursabove). Marketers must leave a home immediatelyor end a phone call when asked.A customer may choose to be placed on a“no contact” list for door-to-door or mailmarketing by notifying the energy retailerthat has approached them. The registerremains current for two years (NERR,Rule 65). Customers may also display a “NoMarketing” “No Canvassing” or “No Advertising”sign on their premises. Marketersmust abide by such signs (NERR, Rule 66).Alternatively, customers who do not wishto be contacted by any telemarketers mayregister on the Commonwealth Do Not CallRegister (see www.donotcall.gov.au or call1300 792 958 for more information).Marketing to others in the householdAlthough customers may complain aboutthis, marketing to a non-account holder isnot prohibited. A non-account holder cancancel an existing contract and transfer to anew retailer if they acknowledge they havethe authority to do so.People who manage the affairs of anotherperson, such as advocates or carers, shouldbe aware that marketers may set up acontract with the person in their responsibilityor care if that person consents.If a customer cannot sort out a problemwith an unwanted account transfer, they cancontact EWON (see Making a complaint at[11.580]).[11.310] Green energyGreen energy is electricity produced fromrenewable sources, such as the sun, wind,water and waste, and produces substantiallylower greenhouse gas emissions than energygenerated from coal- or gas-fired powerstations.GreenPower TM is a national accreditationprogram administered by the NSW governmentwhich ensures that green energy productson offer meet strict requirements forrenewable energy production (see www.greenpower.com.au for more information).Customers can nominate what percentageof their electricity consumption comes fromGreenPower TM accredited renewablesources. This percentage should be clearlydisplayed in the retailers’ marketingmaterial. Generally, the higher the proportionof renewable energy in a product (forexample 10%, 20%, 25%, 50%, 75% or 100%green energy), the higher the price.Customers can view and compare therange of green energy tariffs available on the

368 The Law HandbookAustralian Energy Regulator’s price comparisonwebsite (www.energymadeeasy.gov.au).[11.320] Changing your mindA customer who enters into a market retailcontract has the right to withdraw from thecontract within 10 business days withoutpenalty (NERR, Rule 47(1)). The cooling offperiod starts from the date the customerreceives the information that retailers arerequired to disclose (see section “Marketersmust disclose information”).For door-to-door marketing, this informationwill be provided at the time the contractis entered into. Where a customer agrees to acontract over the phone, the written documentationwill be posted to the customerand it is industry practice to assume thatdelivery takes place on the third businessday after the contract is formed.To terminate a contract within the coolingoff period, a customer may notify the retailerverbally or in writing (NERR, Rule 47(4)).Retailers must keep a record of the customer’snotice of termination as if it were arecord of explicit informed consent (NERR,Rule 47(6)) (see Customer choice and explicitinformed consent at [11.290]).[11.330] BillingCustomers on standard retail contracts areentitled to receive a bill at least once everythree months (NERR, Rule 24(1)). If acustomer has a market retail contract, informationabout billing frequency will be containedin the contract. As it is currentindustry practice for distributors to readmeters once every 3 months, most marketretail customers are usually billed on thisbasis as well.Bills are divided into two distinct serviceand usage charges:• Service Availability Charges (SAC) areminimum rates per day charged for connectionto the electricity or gas network• consumption charges are calculated onlevels of usage as measured by the meter.Bills may also contain other fees and miscellaneouscharges (see Late payment fees at[11.360] and Miscellaneous charges at[11.370]).Whilst energy customers are obliged topay their bills on time, energy retailers inNSW provide assistance programs to helppeople who are having difficulty payingtheir bills. Customers who are experiencingfinancial difficulties should contact theirenergy retailer as soon as possible to discusstheir situation (see [11.390] Hardship andpayment difficulty).[11.340] Estimated usage billsCustomers are obliged to provide safe andunhindered access to their meter. Energyretailers may estimate a customer’s energyusage when the distributor is unable toaccess the meter to perform a meter reading.Lack of access may be due to locked gates,an unrestrained dog or other obstructions,or a faulty meter. However, best endeavoursmust be made as the meter must be read atleast once every 12 months, with billsadjusted accordingly (NERR, Rule 20(2)).This means that where previous bills havebeen under- or over-estimates, a customermay be sent a “catch up” bill or havesurplus amounts corrected on subsequentbills. Estimations are based on the customer’sprevious usage where data is available,the customer’s self-read or the averageamount of usage for a comparable customerover the corresponding period. The estimatedbill must clearly state that it wasbased on an estimated reading (NERR,Rule 21(2), (3)).Customers with meter access issues canrequest a special meter read, which willattract a fee. Where there is no meter accessthe retailer or distributor may require a

11 Consumers 369special meter read to ensure the meter isread at least once every 12 months, and thecustomer may be charged for this (see[11.370] Miscellaneous charges).[11.350] Undercharging andoverchargingWhere a customer’s energy account isundercharged, their account may be rebilledfor the period of the undercharge.This will result in the customer receiving abackbill. There is a limit of nine months onthe time a retailer can recover an amountundercharged. This means that if the retailerhas been undercharging a customer for atwo year period, it is only able to issue abackbill to recover charges for nine monthsprior to the date the customer is notified ofthe undercharging (this is usually the datethe backbill is issued) (NERR, Rule 30(2)(a)).Undercharging can occur when there hasbeen:• a meter read error• an under-estimated bill• a billing error, such as an incorrect tariffor service to property charge• a failure to issue a bill for all or part ofthe billing period.The nine month limitation does not applywhere the undercharge occurs as a result ofthe customer’s fault, unlawful act oromission, for example where the customerrefuses to provide access to their meter(NERR, Rule 30(2)(a)).Customers are entitled to pay a backbillby instalment over an extended period oftime. The time period allowed depends onthe length of the undercharged period:• if the undercharging was for a period ofless than 12 months, customers have anamount of time to pay that is equivalentto the period of the undercharging• if the undercharging was for a period ofmore than 12 months, customers have12 months to pay (NERR, Rule 30(2)(d)).When a retailer becomes aware that acustomer has been overcharged, they mustinform the customer of this within 10business days. Interest is not payable onovercharged amounts (NERR, Rule 31(1)).If the overcharged amount is below $50,the retailer is only required to credit theamount to the customer’s account. Howeverif the overcharged amount is over $50, thecustomer can decide how the refund is to bepaid. If the customer does not provideinstructions, the retailer must credit theamount to their account.If the customer has closed their account,the retailer must use their best endeavoursto refund the money within 10 businessdays (NERR, Rule 31(2)(c)).[11.360] Late payment feesCustomers under standard and market retailcontracts (see Types of contracts at [11.250])may be charged a late payment fee forfailure to pay bills on time. Customersshould consult their own contracts to ascertainany late payment fees they may incur,and the dollar amount of these fees. A latepayment fee cannot be charged if the customeris a hardship customer (NERR,Rule 73). Retailers must also waive the feeunder these circumstances:• if the customer receives the Low IncomeHousehold Rebate or Medical EnergyRebate• if the retailer has agreed to give thecustomer an extension of time to pay.• where the customer and retailer haveentered into a payment plan.• the energy retailer is aware that thecustomer has contacted a welfare agencyor support service for assistance• payment or part payment is made by anEAPA voucher (see Energy Accounts PaymentAssistance (EAPA) vouchers at[11.440])• when the customer has made a billingrelated complaint to EWON (NationalEnergy Retail Law (Adoption) Regulation2013, cl 10).[11.370] MiscellaneouschargesCustomers may be charged a range of feesfor certain additional network-related work.Network fees are set by the Australian

372 The Law Handbookmedical conditions that require heating orcooling may be eligible for the EssentialMedical Equipment Payment from the CommonwealthGovernment. This covers a widerrange of equipment than the NSW MedicalEnergy and Life Support Rebates. Customershave to apply via the Department ofHuman Services website and the rebate ispaid annually.Information about rebates for residentialpark residents is covered in [11.570].[11.440] Energy AccountsPayment Assistance (EAPA)vouchersEAPA is a NSW government voucher programdesigned to help customers who areexperiencing difficulty paying their electricityand/or gas bills because of a crisis oremergency situation. Each voucher is worth$50.Customers can make an appointment tobe assessed for EAPA by contacting acommunity welfare organisation that administersthe program. Energy companies orEWON can supply customers with a list oforganisations in their area. These include:• St Vincent de Paul Society• The Salvation Army• Anglicare• Lifeline• some migrant resource centres• some community or neighbourhoodcentres• some Indigenous community services.In the assessment, the customer may beasked questions about their income andexpenses. The most recent energy bill shouldbe brought to the interview. The agency willdetermine the number of $50 vouchers to begiven, but this will not usually be for thetotal amount of the bill. Customers mayneed to arrange a further payment plan withtheir retailer in respect of the outstandingamount (see Payment plans at [11.400]) ordiscuss referral to the retailer’s HardshipProgram if they are in longer term financialdifficulty. EAPA cannot be used on a closedor inactive account and EAPA cannot put anaccount into credit.Customers waiting to be assessed forEAPA cannot be disconnected from theirelectricity. However, if the customer hasalready been disconnected, they can stillapply for EAPA and the vouchers issued canbe used to pay consumption costs on anoutstanding bill.EAPA vouchers are current for only14 days after issue and will expire if thecustomer delays in paying them onto theiraccount. More information is available at:www.resourcesandenergy.nsw.gov.au/energy-consumers/financial-assistance/stay-connected-through-financial-crisis.Disconnection and reconnection[11.450] Grounds fordisconnectionIf a customer does not pay a bill by its duedate, the retailer will issue notices promptingthe customer to either pay the bill in full,or make contact to request an extension or apayment arrangement. If the customer doesnot respond to these notices, or is unable topay the amount due, the retailer can proceedto disconnection.A retailer may arrange to disconnect acustomer in limited circumstances:• where the customer has not paid a bill bythe pay-by date• where the customer has accepted an offerto pay the bill by instalment or, havingagreed to the offer, has failed to adhere toan instalment arrangement• where the customer is on a payment planwith the retailer but has not kept to theterms of the plan

11 Consumers 373• where the retailer has issued all therequired notices to the customer and usedits best endeavours to make personalcontact with the customer to discusspayment options• where the customer has refused or failedto take any reasonable action towardssettling the debt (NERR, Rule 111).A customer may also be disconnected inother circumstances:• where the customer has failed to pay anyrequired security deposit (NERR,Rule 112)• where the customer has failed to open anaccount (for example, after moving intothe premises) (NERR, Rule 115)• where the customer has failed to allowaccess to their meter for three consecutivescheduled meter readings (NERR,Rule 113)• where the customer has used energyillegally (NERR, Rule 114)• where there are health and safety reasonswarranting disconnection (NERR,Rule 119(g)).If a customer has both their gas and electricitysupplied by the same retailer and theretailer becomes entitled to disconnect boththese fuels for non-payment, the retailermust disconnect the gas supply first andwait 15 business days before disconnectingthe electricity supply (NERR, Rule 117(4)).Customers who have been disconnectedmay have to pay a disconnection and/orreconnection fee. There may also be extrafees if reconnection is scheduled after hours(after 3pm weekdays) or if the disconnectionhas occurred at the pole rather than themeter box (see Miscellaneous charges at[11.370]).When a customer’s supply is disconnectedat the meter box, the distributor places asticker over the main switch, with a phonenumber to call for assistance. It is an offencefor a customer to remove that sticker andreconnect supply. If the arrears remainunpaid, the retailer may arrange for apole-top disconnection at the customer’sexpense (see Unauthorised energy usage at[11.520]).If a customer on a standard retail contracthas been disconnected for 10 business daystheir contract terminates at the end of the10th business day. This can mean a customerwill have to apply to a retailer for a newaccount, which may involve the payment ofa security deposit (NERR, Rule 70(1)(e)).[11.460] Notice requirementsbefore disconnectionBefore disconnecting energy supply, energyretailers are required to provide the customerwith several opportunities to makecontact or to seek assistance with payingtheir energy bills, so that disconnection ofsupply is a last resort. This applies to bothstandard and market retail contracts.If the customer has not paid a bill by thepay-by date, or has not adhered to anagreed payment plan, their retailer mayarrange for disconnection but only after thefollowing:• the retailer has issued a reminder noticegiving the customer no less than sixbusiness days to pay their bill or make analternative payment arrangement (NERR,Rules 108, 109(1))• the retailer has issued a disconnectionwarning notice, no earlier than the nextbusiness day after the end of the remindernotice period, giving the customerno less than six business days topay their bill or make an alternativepayment arrangement (NERR, Rules 108,110(1))• after issuing the disconnection warningnotice, the retailer must use its bestendeavours to make personal contact(either in person, by phone, fax or email)and the customer acknowledges receipt ofthe message (NERR, Rule 111(1)(e)).Reminder notices must be dated, state thedate on which the reminder notice periodends for payment of the bill, as well as theretailer’s phone number for complaints anddisputes (NERR, Rule 109(2)).Disconnection warning notices must bedated, state the reason for disconnection, thedate the disconnection warning period endsfor payment of the bill, contact details forEWON and phone numbers of the retailerand the distributor (NERR, Rule 110(2)).

374 The Law HandbookA customer may be placed on a shortenedcollection cycle if they are late in paying andhave received reminder notices for twoconsecutive bills. The shortened collectioncycle removes the need for a remindernotice. This means that a retailer can disconnectthe customer after providing a disconnectionwarning notice and using its bestendeavours to make personal contact. Thecustomer stays on a shortened collectioncycle until they have paid three consecutivebills by the pay-by date (NERR, Rules 34,111(3)).If a customer fails to open an electricity orgas account after moving in or does notenter into another contract after their marketcontract has expired, the existing retailerresponsible for supply at the premises mayarrange to disconnect the customer. Beforedoing so, the retailer must:• give the customer a notice of intention todisconnect, and• not less than five business days later, givethe customer a disconnection warningnotice (NERR, Rule 115).[11.470] When disconnectionis prohibitedCustomers cannot be disconnected:• where the premises are registered ashaving life support equipment• where the customer has made acomplaint, directly related to the reasonfor the proposed disconnection, to theretailer or EWON and the complaintremains unresolved• where the customer is a hardship customeror a residential customer and isadhering to a payment plan• where the retailer is aware that thecustomer has formally applied for arebate or EAPA and the application isbeing assessed• where the customer has failed to pay anamount on a bill that relates to goods andservices other than for the sale of energy• for non-payment of a bill where theamount outstanding is less than $300 andthe customer has agreed to repay thatamount• on a Friday, Saturday or Sunday• on a public holiday or any day before apublic holiday• on the days between 20 December and31 December (both inclusive) in any year• before 8am or after 3pm on any other day(NERR, Rules 108, 116).Under the NERL, life support equipmentincludes the following:• an oxygen concentrator• an intermittent peritoneal dialysismachine• a kidney dialysis machine• a chronic positive airways pressurerespirator• Crigler-Najjar syndrome phototherapyequipment• a ventilator for life support• in relation to a particular customer – anyother equipment that a registered medicalpractitioner certifies is required for aperson residing at the customer’s premisesfor life support (see NERR Rule, 3definitions).Debt collection and credit reporting[11.480] Debt collectionEnergy retailers may refer a customer’s debtto a debt collector that specialises in collectingoverdue accounts. Retailers may eitherrefer the debt while retaining ownership ofit, in which case the debt collector collectsthe debt on the retailer’s behalf, or sell thedebt to a debt collector instead. If the debt issold the retailer must notify the customer ofthe sale (Credit Reporting Privacy Code,cl 13.1).

11 Consumers 375[11.490] Credit reportingIf the customer is overdue on their bills bymore than 60 days, the energy retailer mayregister the debt with a credit reportingbody. A default is recorded on the customer’scredit report for five years (or sevenyears for serious infringements). This canresult in the customer being refused consumercredit, such as when they apply for aloan, credit card or mobile phone.A customer cannot be credit listed unlessthe following requirements are met:• the retailer has issued an overdue noticeto the customer’s last known addressrequesting payment of the amountoverdue• 30 days later (or more), the retailer hasissued a notice of intent to credit list tothe customer’s last known address• the customer is at least 60 days overduein making the payment• the overdue amount is not less than $150• the credit listing occurs between 14 daysand three months after the notice ofintent to credit list is sent• the retailer is not prevented by a statuteof limitations from recovering the overdueamount (that is, the retailer must notrecover a debt more than six years afterwhen it first arose) (CR Code cl 9.3,Privacy Act 1988 (Cth), ss 6Q(1),21D(3)(d)).If the customer pays the account afterlisting, the debt is notated on their credit fileas “default paid”, but remains listed for theremainder of the listing period.Customers disputing the amount of thedebt or that they owe money should contacttheir energy retailer in the first instance. Ifthey are not satisfied with the retailer’sresponse they should make a complaint toEWON (see Making a complaint at [11.580]).If EWON finds that the retailer has made anerror or that the listing is non compliant,they will try to ensure that the customer’scredit rating is restored, at no cost to thecustomer.There are credit fix or credit repair agenciesoperating in NSW which offer a serviceof assisting customers to remove incorrectcredit listings. These agencies usually chargethe customer a fee upfront when an agreementis entered into, and a further fee whena listing is removed.Customers are entitled to one free creditreport a year and can approach a creditreporting body to request a copy of theircredit report, which must be provided within10 days. Customers are also entitled to a freecredit report If they are declined credit,provided they request the report within90 days of the date they were declined. Atthe time of publication, there are three creditreporting bodies operating in NSW:• Veda Advantage• Dun & Bradstreet• Experian.If the credit report is incorrect or misleading,a customer may request any credit provideror credit reporting body to correct theinformation. The credit provider or creditreporting body must be holding credit informationabout the customer, but not necessarilythe particular information that thecustomer is seeking to have corrected. Thecredit provider or credit reporting bodymust consult with other credit providers orreporting bodies as soon as practicable toresolve the correction request. If the creditprovider or reporting body is satisfied thatcredit information is inaccurate, out of date,incomplete, irrelevant or misleading, theymust take reasonable steps to correct theinformation within 30 days (Privacy Act1988, ss 20T, 21V, CR Code 20.2).In practice, it may be more convenient forcustomers to raise their concern directlywith their energy retailer. If not satisfied, acomplaint can be made to EWON or theOffice of the Australian InformationCommissioner.Note: the OAIC will be abolished in thenear future. However the Privacy Act willcontinued to be administered by the PrivacyCommissioner (who currently sits within theOAIC).

376 The Law Handbook[11.500] Powers of entryElectricity and gas distributors and retailershave powers to enter private land in specificcircumstances for maintenance purposes andto read meters. Except in emergencies, thesepowers must only be exercised in daylighthours (Electricity Supply Act 1995 (NSW) (ESAct), s 54; Gas Supply Act 1996 (NSW), s 55(GS Act).Prior notice of the intention to enterproperty on a specific day must be given tothe owner or occupier of a property, except:• in emergencies• where the entry is with the consent of theowner or occupier, or• where the sole purpose of the entry is toread a meter (ES Act, s 55(3); GS Act,s 56(3)).Reasonable force may be used to enter theproperty, but only if specifically authorisedby the distributor (ES Act, s 56; GS Act, s 57).However, authorised officers who enter theproperty must do so via existing openingswherever possible, such as gates orpathways, and by causing as little damageas possible (ES Act, s 58; GS Act, s 59). Thisalso applies to work requiring the digging ofholes or interfering with gardens.An owner or occupier is entitled tocompensation from the distributor or retailerfor damage caused as a result ofentering the property (ES Act, s 60; GS Act,s 61). The exception to this is damage causedas a result of the owner’s or occupier’sfailure to abide with obligations under theAct or regulations.[11.510] Interference with electricity andgas worksElectricity and gas distributors have powersand obligations to ensure a safe and uninterruptedenergy supply. For example, anelectricity distributor has the power to issuea notice requiring a property owner oroccupier to trim or remove a tree where thedistributor has reasonable cause to believethat the tree could damage or interfere withelectricity works, become a fire hazard, orconstitute a risk to public safety (ES Act,s 48). In emergencies, an electricity distributormay trim or remove the tree of their ownaccord the cost of which, in most cases, willbe borne by the electricity distributor (ESAct, s 48(3)(c) and (4)).Similar provisions apply to structures andother things that a distributor has reason tobelieve are damaging or interfering with itselectricity or gas works (ES Act, s 49; GS Act,s 50). However, unless removed by thedistributor in an emergency, the cost ofremoving structural obstructions will fall onthe owner of the structure.It is an offence for a person to climb on orenter a distributor’s electricity assets (suchas electricity poles and substations) withouta reasonable excuse, lawful purpose orauthorisation by the distributor or retailer(ES Act, s 65A).[11.520] Unauthorised energyusageRetailers and distributors can immediatelyarrange to disconnect customers whofraudulently or illegally use energy (NERR,Rule 114). Distributors also have broaderpowers to disconnect where there is:

11 Consumers 377• interference with the supply of energy to It is an offence to consume electricity, ora third partycause electricity to be wasted or diverted• interference with the distributor’s equiptodo so under an energy contract (ES Act,from a distribution system unless authorisedment at the premisess 64). The same applies for gas (GS Act,• meter tampering (NERR, Rule 119(2)). s 65).[11.530] Maintenance and upgrade ofservicesThe distributor is responsible for ensuringthe safety and reliability of electricity andgas supply to customers up to the point ofconnection with the customer’s installation.For electricity, this point is commonlylocated:• for overhead connections, at the point theservice is attached to the building (or thecustomer’s first private pole)• for underground connections, at the meterbox which is typically on the wall ofthe building. In some cases, the point ofsupply is the point at which the servicecrosses the boundary of the property or ata private ground-level connection cubicle.For gas, the point of supply will be wherethe customer’s installation joins with thedistribution main.Distributors are responsible for maintainingthe wires, poles and pipes up to thepoint of supply; for example, fixing fallenpower lines or broken gas pipes in the street.Maintenance of the meter is also the responsibilityof the distributor regardless of whereit is located.Gas distributors also have certain obligationswith respect to pipes or other itemsbetween the boundary and the customer’smeter. However, the customer may be requiredto pay for any installation or upkeepof these items.Property owners are responsible for themaintenance of electricity and gas installationsfrom their side of the point ofconnection. This includes maintaining theprivate poles, wires and pipes inside aresidence.Property owners are responsible for thecosts of new connections to distributionnetworks. This includes the connection betweenthe point of connection on theirproperty to the network. New connectioncosts can be very expensive and -customersshould contact their energy retailer for moreinformation before proceeding, particularlyif purchasing a property in a rural area or ina new residential estate as this may requireextending the network or increasing itscapacity. For more information see the AER’sConnection Charges Guideline, which cameinto force in NSW on 1 July 2014.[11.540] Customer service standardsEnergy distributors in NSW must adhere toa minimum level of customer service. Thedistribution service standards in the NERRrequire distributors to:• maintain a 24 hour fault reporting hotlineservice (Rule 85)• provide information about the customer’susage or the distributor’s charges toeither the customer or their retailer(Rule 86)• refer a residential customer to an interpreterservice where appropriate(Rule 87).

378 The Law HandbookA further five NSW-specific standards arelisted under the Electricity Supply (General)Regulation 2011 (NSW) (cl 9):• post-disconnection notice - the distributormust leave behind a notice afterdisconnection, with information about thereason for disconnecting, the retailer andEWON’s telephone numbers, and whatthe customer is required to do for reconnectionincluding any related costs payable(cl 10)• repair of faulty street lights - if a customerreports a faulty street light abuttingtheir premises and the distributor responsiblefor that light fails to repair it withinthe agreed timeframe, they must pay thecustomer at least $15 (cl 11).[11.550] Supply quality and reliabilityEnergy distributors have a right to interruptthe supply of energy at any time to carry outplanned maintenance or developmentworks, or as a result of an unplannedinterruption (NERR Rule 89). Where a supplyinterruption is planned, distributorsmust notify the affected customer by anyappropriate means at least four businessdays before the date of the interruption,unless the distributor and customer haveagreed to a shorter notice period in writing(Rule 90A, inserted by the National EnergyRetail Law (Adoption) Regulation 2013 (NSW)cl 11).The notification must:• specify the expected date, time and durationof the interruption• include a 24 hour telephone number forenquiries, and• refer any enquiries to the distributor(NERR Rule 90(2)).The standard requirement to give at leastfour business days’ notice applies to premiseswith life support equipment approvedunder the NERL, but this must be in writtenform (NERR Rule 125(2)(d)).Unplanned interruptions may occur wherethere is a need to carry out unanticipatedmaintenance or repairs due to a threat tosafety, reliability or security of supply (NERRRule 88). Faults on the network may alsooccur due to a natural event such as alightning strike, or third party action such asa vehicle hitting a power pole. Distributorsmust use their best endeavours to restoresupply as soon as possible. Within 30 minutes(or otherwise as soon as practicable) ofbeing informed of the unplannedinterruption, distributors must make availablea 24 hour telephone service to provideinformation on:• the nature of the interruption, and• an estimate of the time when supply willbe restored or when reliable informationon restoration of supply will be available(NERR Rule 91).When a customer registers their premiseswith a distributor as having life supportequipment, the distributor must advise thecustomer that an unplanned interruptionmay occur at any time and provide informationto help the customer prepare a plan ofaction in case an interruption occurs. (NERRRule 125(2)(c)).The quality of energy supply is regulatedby legislation and industry standards, includingvoltage standards, voltage variationsand gas pressure.Customers may be entitled to compensationfor any damage or loss resulting fromsupply incidents, such as frequent or lengthyinterruptions to supply, voltage or mainspressure fluctuations, or lack of notificationsfor planned interruptions. Claims of compensationcan include damage to propertyor household appliances and food spoilage.However, there is generally no compensationgiven for loss of trade or business, orlosses incurred where a supply incident wascaused by a natural event such as a lightningstrike, fire or flood.Customers who wish to make a claim forcompensation should contact their distributorand may need to provide:

11 Consumers 379• a description of the damage to propertyor any losses incurred• a repairer’s report about the damage andquotes/receipts for any repairs necessary• the exact date and time the problem wasdiscovered• an outline of what was observed duringthe event.[11.560] TenantsPublic and private housingtenantsPublic and private housing tenants aregenerally responsible for energy bills andshould open an account when moving into anew property.If electricity and gas are included in therent, this will be written in the lease and thelandlord will be responsible for paying thebills. If a landlord fails to pay an account ontime and the tenant is facing disconnection,the tenant should contact NSW Fair Tradingor the Tenants Union for more information(see Making a complaint at [11.580]). Withthe exception of boarding houses, a landlordcannot charge a tenant for the supply ofelectricity unless there is a separate meterwhich complies with the regulations for theelectricity supplied, and the sum chargeddoes not exceed the maximum allowableamount under the AER Retail Exempt SellingGuideline July 2013. Landlords of boardinghouses can charge for utilities as a separatecharge on top of the room rate, provided:• they have notified the resident of theutility charge before entering into theoccupancy agreement, and• the amount charged is based on the costof providing the utility and a reasonablemeasure or estimate of the resident’susage (Boarding Houses Act 2012 (NSW),Sch 1, cl 7).Residents of boarding houses with complaintscan make a complaint to NCAT orthe Tenants Advice and Advocacy Service(visit www.tenants.org.au).Tenants in share houses should be awarethat the people whose names appear on anenergy account are responsible for bills.Tenants should ensure the names on theaccount are up-to-date and that an agreementis in place between residents forpaying the bills. For more information onshare housing, contact the Tenants Union orvisit www.tenants.org.au (see also chapter29, Housing).[11.570] Tenants in residentialparksTenants in residential parks may be suppliedelectricity directly from an energy retailer orfrom the park owner.Residential park tenants who have adirect supply contract with an energy retailerhave all the rights and responsibilitiesthat other customers would have under theNECF, outlined above.Permanent residents of residential parkswho are supplied electricity through thepark’s internal network and are meteredseparately have a more limited range ofrights and responsibilities prescribed by theResidential Parks Act 1998 (NSW) (RP Act),the AER Retail Exempt Selling Guideline July2013 (ES Guideline) and the Customer ServicesStandards for the Supply of Electricity toPermanent Residents of Residential Parks 2006(RP Standards).A permanent resident is defined as aperson occupying a site or dwelling in aresidential park under a residential tenancyagreement or residential site agreement asthe person’s principal place of address. Ifthe customer owns a cabin, van or a mobilehome in a park, but their primary residenceis elsewhere, they are referred to as aholiday park customer and different regulationsapply.

380 The Law HandbookMetering and billingTenants in residential parks whose sites aremetered separately cannot be charged morethan the standing offer price or serviceavailability charge that would be charged bythe local area retailer (ES Guideline Class R4,Condition 7(1); RP Act, s 37(2); RP Standards,para 3.1).When calculating the service availabilitycharge (see Billing at [11.330]), park ownersmust set a rate relative to the supply quality.Where the supply is less than 60 amps, thepark owner must charge a reduced serviceavailability charge (see Figure 1 below).Maximum Service Availability Charge (SAC)Level of Supply Maximum Level of SACto SiteLess than 20 20% of local standard retailamps supplier’s SAC20-29 amps 50% of local standard retailsupplier’s SAC30-59 amps 70% of local standard retailsupplier’s SgAC60 amps or 100% of local standard retailmore supplier’s SACAt the commencement of the tenancy oron the request of the tenant, the owner ofthe residential park must provide:• information about the payment arrangementfor electricity, including paymentplans• information on government rebateschemes• information about dispute resolutionprocedures, including EWON (RPStandards, para 2.3).Tenants cannot be charged late fees foraccounts which are not paid or not paid infull by the due date (RP Standards, para 3.1.3). The residential park owner must keeprecords of account details, such as meterreadings, charges applied and security depositswithheld. Receipts for any amountpaid for electricity must be issued to thetenant (RP Standards, para 3.3).Tenants should be aware that being indefault of energy bills can mean the tenantis in breach of their residential tenancy orsite agreement, which may lead to terminationnotices or may constitute grounds foreviction.Permanent residents of residential parksare eligible for the Low Income Household,Family, Life Support and Medical Energyrebates (see Rebates at [11.430]), but are noteligible for EAPA assistance (see EnergyAccounts Payment Assistance (EAPA)vouchers at [11.440]).Payment difficulties and disconnectionThe ES Guideline provides the same level ofprotection as those covered by the NECF forpermanent residents of residential parks.This includes protections around paymentplans, security deposits and disconnection(ES Guideline Class R4, Conditions 9-11; see[11.450] Disconnection and reconnection),[11.400] Payment plans and [11.270] Securitydeposits).In addition, park owners cannot disconnectelectricity supply to a park resident,who is supplied electricity under a residentialtenancy agreement, without an order ofthe NSW Civil and Administrative Tribunal(NCAT) (RP Standards para 3.5).Residents on life support are protectedfrom disconnection if they provide the parkowner with confirmation from a registeredmedical practitioner that a person at theirpremises requires life support equipment.Where the resident is supplied energy by anauthorised retailer and distributor, the parkowner must inform them that life supportequipment is used at the premises. The parkowner must also maintain records of anyresidents who have life support equipment(ES Guideline, Class R4 Condition 16).Customer service standardsOwners of a residential park must providetenants with:• a mechanism or facility that operates24 hours a day, seven days a week toreceive notice of urgent faults and difficultieswith the electricity supply• a mechanism or facility during businesshours to receive queries and give informationconcerning a resident’s electricityaccount and connection service (RP Standardspara 2.2).

11 Consumers 381Tenants in residential parks are also entitledto compensation for breaches of customerservice standards including:• failures to connect supply by an agreeddate ($60 per day, to a maximum of $300)• failures to provide two business days’notice for planned interruptions to supplyor there has been a longer interruptionof supply than notified ($20).However, compensation is not payablewhere the failures resulted from the need tocarry out emergency work or from circumstancesbeyond the control of the parkowner (RP Standards para 2.1).Technical and safety standardsOwners of residential parks are responsiblefor maintaining the park’s electricalinstallation, other than the electrical installationwithin the premises occupied by thetenant. The owner must comply with allappropriate legislation and standards ontechnical and safety matters, including:• Australian Standards 3000-2007 - WiringRules for Electrical Installations• Electricity (Consumer Safety) Act 2004 andElectricity (Consumer Safety) Regulation2006• Service and Installation Rules of NSW• AER Electricity Network Provider RegistrationExemption Guideline.Tenants are responsible for notifying thepark owner of any electrical defects ofwhich the tenant becomes aware, includingany damage or tampering with meteringequipment.Rights to dispute resolutionOwners of residential parks must provideresidents with information about their rightsto complain to EWON. The park owner isbound by any decision of EWON in relationto a complaint or dispute relating to electricitysupply. Residents can also take disputesto NCAT.[11.580] Making a complaint - energyCustomers with complaints about energyservices can make a complaint to the Energy& Water Ombudsman NSW (EWON). Thiscan include complaints relating to:• energy contracts, marketing and transfers• payment difficulty, disconnection ofsupply• billing• customer service issues• debt collection and credit default listing• supply quality, such as damage or loss toproperty from interruptions of supply• other network issues• any rights or obligations conferred onenergy suppliers by law.EWON generally expects customers to contacttheir energy provider in the firstinstance. If the provider cannot resolve theproblem customers are advised to speak tosomeone in a more senior position. Customersare advised to keep records of anycorrespondence or discussion with theirprovider (for example date, time, details ofcorrespondence).If the problem is not resolved by theprovider or not dealt with in a reasonabletime, call EWON on 1800 246 545. Complaintscan be lodged by phone, letter, fax,email, in person or online (www.ewon.com.au).EWON’s service is free for customers.EWON can investigate customer complaintsby:• seeking further information from the providerand/or customer• seeking independent expert advice (forexample, from an engineer).In most cases EWON is able to negotiate aresolution between the customer and theirprovider. Where a resolution cannot bereached, the Ombudsman can make a determinationto settle the matter. If the customer

382 The Law Handbookchooses to accept the determination, it willbe binding on the provider.EWON is not able to review disputesrelating to tariff or price increases, govern­ment policy, private contractors or landlords,or matters that have been dealt with inanother forum.[11.590] Water consumersWater services are provided to customers inNSW through suppliers that largely exercisea monopoly over the supply of water,sewerage and stormwater drainage servicesacross their geographic areas.Metropolitan areasThe largest water services supplier in NSWis Sydney Water Corporation, a state-ownedcorporation operating under the Sydney WaterAct 1994 (NSW) (SW Act). It provideswater services to the Sydney, Blue Mountainsand Illawarra regions. Sydney Watertreats and supplies water bought from theSydney Catchment Authority, which operatesunder the Sydney Water Catchment ManagementAct 1998 (NSW) (SWCM Act).Hunter Water Corporation, a state-ownedcorporation operating under the Hunter WaterAct 1991 (NSW) (HW Act), providesservices to the lower Hunter region of NSW,including Newcastle, Lake Macquarie,Maitland, Cessnock and Port Stephens.Hunter Water treats and supplies waterfrom its catchment facilities.Gosford City Council and Wyong ShireCouncil, operating under the Local GovernmentAct 1993 (NSW) (LG Act), providewater to residents on the NSW CentralCoast.Rural and regional areasAt present, over 100 separate local authoritiessupply water, sewerage and drainageservices in rural and regional NSW. Thesewater suppliers are chiefly regulated underthe Local Government Act.An exception to this is Essential Energywhich has authority under the Water Management(General) Regulation 2011, cl 108 toprovide water and sewerage services to theresidents and businesses of Broken Hill,Menindee, and Sunset Strip along withdefined special areas. Essential Energy hasthe functions of a water supply authority inthose areas, and water and sewerage billsfor these customers are issued under theletterhead of “Essential Water”.Maximum service prices are determinedby each of the local government waterutilities having regard to the Best PracticeManagement of Water Supply and SewerageGuidelines (August 2007).Water Industry Competition ActRecent reforms under the Water IndustryCompetition Act 2006 (NSW) have allowedfor the introduction of a licensing regime, toencourage competition in water and wastewaterservices. The licensing regime allowsprivate water utilities to provide theseservices, pursuant to obligations which imposeminimum standards for the protectionof public health, the environment and customerinterests. Some companies now competein constructing or maintaining waterinfrastructure and in the supply of water orsewerage services, for example in commercialsites or residential developments.

11 Consumers 383Offences relating to water[11.600] Stealing or divertingwaterIt is an offence to steal or divert water, or totamper with a meter to prevent its accuraterecording of water usage and penaltiesapply (SW Act, s 48; HW Act, s 30; - SWCMAct, s 63; LG Act, s 636).[11.610] Water restrictionsThe Minister for Water may impose restrictionson the use of water on public interestgrounds. It is an offence to contravene waterrestrictions and penalties may apply.Customers should contact their watersupplier for details about current restrictions.[11.620] Dischargingprohibited substances andpolluting water supplyIt is an offence to discharge any substanceinto a system owned or controlled by awater supplier without written agreementfrom that supplier or to cause pollution of apublic water supply (SW Act, s 49; HW Act,s 31; SWCM Act, s 64; LG Act, s 638).Customers should contact their watersupplier if they are unsure of how todispose of unusual or potentially dangeroussubstances, such as trade waste.Metropolitan customers[11.630] BillingThe most common customer issues relatedto billing concern payment difficulties, disputedhigh bills or restriction or disconnectionof water supply.In general, customers should contact theirwater retailer in the first instance to discussbilling issues. If they are not satisfied withthe retailer’s response, Sydney Water, HunterWater and Gosford Council customersshould contact the Energy & Water OmbudsmanNSW (EWON). Wyong Councilcustomers should contact the NSWOmbudsman. For more information aboutmaking a complaint, see Making a complaintat [11.580].AccountsThe property owner is the account holder onwater accounts. Responsibility for the wateraccount is transferred to the new owner ofthe property upon purchase, and charges arethen apportioned based on the date ofsettlement. This is organised by the personwho conducts the property settlement, usuallythe conveyancer or solicitor.If the account has not been transferred,the new owner should contact the personwho conducted the settlement. Otherwise,the new owner will be liable for any unpaidwater charges on the property.Types of chargesMost customers will incur two types ofcharges for water services:• service charges are set charges for connectingto water, sewerage and stormwaterdrainage networks• usage charges are calculated on the levelsof water used or sewerage dischargedover a period.The Independent Pricing and RegulatoryTribunal of NSW (IPART) sets maximumprices for the provision of water, sewerage

384 The Law Handbookand stormwater services provided by SydneyWater, Hunter Water, Gosford Counciland Wyong Council.Sydney Water, Hunter Water, GosfordCouncil and Wyong Council may also chargea range of ancillary fees at maximumamounts set by IPART. These include chargesfor:• water reconnection during and outsidebusiness hours• special meter readings (for example,where the water supplier has been unableto access the meter)• meter testing• building plan approvals• dishonoured or declined payments• technical services.For Sydney Water and Hunter Water customers:Under respective Operating Licences, SydneyWater and Hunter Water are obliged toprovide information on their charging policiesand current charges free of charge uponrequest by a customer, and in other specifiedcircumstances such as when charges change.For Gosford Council and Wyong Councilcustomers: Gosford and Wyong Councilsprovide some information about charges ontheir websites.MeterCustomers are responsible for ensuring reasonableaccess to their meter.For Sydney Water and Hunter Water customers:Sydney Water and Hunter Water willattempt to check the meter at least once ayear. If they are unable to access the meter,Sydney Water or Hunter Water may bill thecustomer based on an estimation of waterusage and costs. If Sydney Water or HunterWater are unable to access the meter on twoor more occasions, they may:• relocate the meter• seek access to the meter at anothersuitable time (this may incur an additionalfee to the customer)• make other arrangements with thecustomer, such as allowing the customerto self-report meter readings.If no solution can be reached, Sydney Wateror Hunter Water may treat the customer’sproperty as “unmetered” and charge anunmetered service charge.For Gosford Council and Wyong Councilcustomers: Gosford and Wyong Councilsmay also give directions to a propertyowner to re-position a meter if it is notaccessible. Other information relating to thefrequency of meter readings is available oneach council’s website or by contacting therelevant council directly.Hardship and concessions schemesCustomers are required to pay their bills ontime, or they may face debt recovery actionsby their retailer, including the restriction oftheir water supply.Payment plansIf a customer is having difficulty payingtheir bill, they should contact their waterretailer as soon as possible. Retailers such asSydney Water and Hunter Water, GosfordCouncil and Wyong Council provide paymentplans, where the customer makesregular instalments of an agreed amount.For Sydney Water and Hunter Water customersonly: Under the Operating Licences forSydney Water and Hunter Water, customerswill not face disconnection or restriction oftheir water supply if they enter into apayment plan and make regular payments.If a customer has problems negotiating arealistic payment arrangement with theirsupplier, they can contact EWON for help.CentrepayFor Sydney Water and Hunter Water customersonly: Customers who receive a governmentpension or benefit can set up Centrepay as apayment option. Centrepay transfers anominated amount (a minimum of $10 perfortnight) directly into a customer’s wateraccount. Centrepay may be set up by contactingCentrelink or their water retailer.Pensioner rebatePensioners who are customers of SydneyWater, Hunter Water, Gosford Council orWyong Council are eligible for a NSWgovernment-funded pensioner rebate. Thefollowing cards are recognised:• Pensioner Concession Card• Department of Veterans’ Affairs GoldCard, embossed with TPI/TTI or Widow/Widower or Extreme Disablement Adjustment(EDA).

11 Consumers 385Sydney Water also provides a concession tocustomers who receive a Department ofVeterans’ Affairs intermediate rate pension.Customers should contact Sydney Water,Hunter Water, Gosford Council or WyongCouncil directly to claim the pensionerrebate.Payment Assistance SchemeFor Sydney Water and Hunter Water customersonly: Sydney Water and Hunter Water customerswho experience financial difficultycan apply for the Payment AssistanceScheme (PAS). PAS vouchers can be used topay water usage charges only (see Types ofcharges at [11.630]).Hunter Water uses a voucher system andapplications for PAS vouchers can be madeby contacting Hunter Water, or a localcommunity organisation, such as St Vincentde Paul or the Salvation Army.Sydney Water no longer provides vouchersand instead applies a PAS credit directlyto the customer’s account. This is done overthe phone, on the recommendation of communityworkers to Sydney Water.Other water suppliers may have otherassistance available and customers shouldcontact their water supplier for moreinformation.[11.640] Disconnection orrestrictions of supplyIt is more common for water supply to berestricted rather than disconnected. Restrictionof supply involves installing a flowrestriction washer at the meter, which allowsenough water to fill a jug but insufficientwater for a shower and it may take severalminutes to refill a toilet cistern. Waterservices are usually not disconnected due tothe impact on public health. However, ifdisconnected, customers may be charged afee for reconnection (see Types of charges at[11.630]).Customers who require water supply tooperate a life support machine or to meetother special health needs should notifytheir water supplier.Grounds for restriction ordisconnectionFor Sydney Water and Hunter Water customers:Under their respective operating licences,Sydney Water and Hunter Water can restrictor disconnect water supply when a customer:• fails to pay any due amount• fails to ensure access to the meter• has a private installation that is defectiveor does not comply with set standards• breaches a relevant law, the terms of thecustomer contract or any other agreementbetween the supplier and customer, concerningthe use or taking of water or thedischarge of wastewater• discharges unauthorised trade wastewater• discharges chemicals that pose a healthrisk• fails to install a backflow preventiondevice when required• uses recycled water improperly.For Gosford Council and Wyong Council customers:Under cl 207 of the Water Management(General) Regulation 2011, Gosford/Wyong Council’s Water Supply Authoritycan restrict or disconnect water supply onsimilar grounds.Notice requirements before restrictionor disconnection for non-paymentFor Sydney Water and Hunter Water customersonly: If restriction or disconnection is theresult of a failure to pay a bill on time or adefault on an agreed payment plan, SydneyWater and Hunter Water will provide customerswith:• a reminder notice advising of the amountoverdue, contact details for the retailerand an explanation of alternative paymentoptions, and inform the customer oftheir right to contact EWON.(Note: Hunter Water will only issue areminder notice if the customer has agood payment history over the last12 months. If the customer has a poorpayment history, Hunter Water will proceeddirectly with a final notice)• a final or disconnection notice advisingthe customer that their account is significantlyoverdue and action may be taken

386 The Law Handbookto restrict or disconnect the customer’swater supply or initiate debt recoveryprocesses if their account is not paid. Thenotice must also provide the retailer’scontact details and inform the customerof their right to contact EWON• attempt personal contact, either by phoneor mail, or in person (see Sydney Waterand Hunter Water’s Customer Contract).Sydney Water and Hunter Water will advisethe customer of when the disconnection orrestriction will take place.For Gosford Council and Wyong Councilcustomers: If restriction or disconnection isthe result of a failure to pay a bill, noticemust be served:• personally,• by leaving it at the premises, with someonewho appears to work or live at thepremises and is at least 16 years of age,• by mailing it to the owner or occupier’slast known address, or• by affixing it to a conspicuous part of theland or building (WM Reg, cl 208(3)).Limitations on disconnection orrestrictionFor Sydney Water and Hunter Water customers:Sydney Water and Hunter Water will notrestrict or disconnect a customer’s watersupply where:• the customer has failed to pay dueamounts on time and notice requirementshave not been met (see Notice requirementsbefore restriction or disconnectionabove)• the retailer has not provided the customerwith reasonable opportunity to pay theaccount• water supply is required for a life supportmachine or other special needs• the retailer has not advised the tenantthat they may be able to pay the outstandingcharges and deduct the amountfrom the rent payable to the owner of thepremises• there is a complaint being considered bySydney Water, Hunter Water or EWON• the customer is experiencing financialdifficulty and has entered into (and iscomplying with) a payment plan (seeHardship and concessions schemes at[11.630])• the customer has notified the retailer thatthey have sought assistance under thePAS scheme and that assistance is imminent(see Hardship and concessionsschemes at [11.630])• it is a Friday, weekend, public holiday orthe day before, or after 3pm on a weekday(2pm for Hunter Water).Sydney Water or Hunter Water customerswho have complaints related to restrictionor disconnection should contact their waterretailer in the first instance or EWON if theyare not satisfied with their retailer’s response(see Making a complaint at [11.720]).For Gosford Council and Wyong Councilcustomers: Information about disconnectionor restriction is available via the councils’websites or by contacting the councilsdirectly. Tenants and property owners livingwithin Gosford or Wyong Local GovernmentAreas who have complaints related torestriction or disconnection should contacttheir water supplier in the first instance.Gosford Council customers can contactEWON if they are not satisfied with theirsupplier’s response, and Wyong Councilcustomers can contact the NSW Ombudsman(see Making a complaint at [11.720]).[11.650] Powers of entrySydney Water and Hunter WaterSydney Water and Hunter Water are authorisedto enter private land in specific circumstancesfor:• maintaining water and sewer systems• ascertaining whether a customer contractis being breached• restricting or disconnecting water supplyif amounts on the account are unpaid (seeDisconnection or restrictions of supply at[11.640])• carrying out work required by the operatinglicence, such as work to maintainwater quality• reading meters• making a valuation or assessment of theusage of the land or of any building onthe land

11 Consumers 387• rectifying defective or improper workthat has not been rectified under a noticeserved by the supplier• finding the source of pollution of watersupplied by the distributor (SW Act, s 38;HW Act, s 20).Entry must be made in daylight hoursexcept in cases of emergency. Authorisedpersons should carry identification withthem that must be produced at the requestof the occupier of the property. They mustuse no more force than is reasonably necessaryto gain entry (SW Act, s 40(2); HW Act,s 21(2)).Notice of entry must be provided inwriting to the owner or occupier, unless theentry is with the consent of the owner oroccupier, in an emergency situation, or toread a meter (SW Act, s 40(1); HW Act,s 21(1)).In exercising powers of entry, SydneyWater and Hunter Water are obliged to doas little damage as practicable and removeall rubbish and equipment brought onto theproperty. Customers who suffer damage inthe exercise of entry powers are entitled tocompensation (SW Act, s 41; HW Act, s 22).Customers who believe their rights havebeen breached should complain to SydneyWater or Hunter Water in the first instance,or to EWON if their supplier’s response isunsatisfactory (see Making a complaint at[11.720]).Sydney Catchment AuthorityCustomers who reside in the Sydney catchmentarea should note that the SydneyCatchment Authority is also authorised toenter and occupy land or a building for:• maintaining and improving current orextending new facilities• ascertaining whether an offence has beencommitted, such as the pollution of watersupply• finding and removing a source of pollutionin a catchment area (SWCM Act,s 55(1)).Except in emergencies, these powers mustonly be exercised in daylight hours andprior written notice of the intention to enterproperty on a specified day(s) must be givento the owner or occupier, except:• in emergencies• where the owner or occupier consents tothe entry, or• where giving notice would defeat thepurpose of exercising the powers of entry(SWCM Act, s 57).In exercising powers of entry, the SydneyCatchment Authority is obliged to do aslittle damage as practicable (SWCM Act,s 58(1)) and must not remove any materialexcavated from the land unless:• the materials removal is necessary forascertaining if an offence has beencommitted• the owner consents to the materials removal(SWCM Act, s 55(2)).Customers who suffer damage as a result ofthe exercise of entry powers are entitled tocompensation (SWCM Act, s 58).Gosford/Wyong Councils' WaterAuthorityIn addition to general powers of entry givento Gosford Council and Wyong Councilunder the Local Government Act 1993(ss 191–201), the Gosford/Wyong Councils’Water Authority is authorised to enter privateland in specific circumstances for:• maintaining water and sewer systems• carrying out authorised work• reading meters (WM Act, s 296).These powers must generally be exercised indaylight hours. In exercising powers ofentry, Gosford/Wyong Councils’ Water Authorityis obliged to do as little damage aspracticable. Customers who suffer damagein the exercise of entry powers are entitledto compensation (WM Act, s 296(5)(b)).Customers who believe their rights havebeen breached should complain to GosfordCouncil or Wyong Council in the firstinstance. Gosford Council customers cancontact EWON if they are not satisfied withtheir supplier’s response, and Wyong Councilcustomers can contact the NSW Ombudsman(see Making a complaint at [11.720]).

388 The Law Handbook[11.660] Interference withwater or sewerage worksObstruction or interference with worksFor Sydney Water and Hunter Water customers:Owners and occupiers of property must notundertake any building, landscaping or constructionwork which interferes with, obstructsor damages a water or sewer systemowned by Sydney Water or Hunter Water(SW Act, s 44; HW Act, s 25).If any structure obstructs or interfereswith water or sewer works, Sydney Waterand Hunter Water can give notice to theperson who placed it to remove the structureand compensate Sydney Water orHunter Water for any loss or damage sufferedas a result (SW Act, s 44(5); HW Act,s 25(5)). If the structure is not removed,Sydney Water or Hunter Water may removethe structure and recover the cost of theremoval (and any loss or damage suffered asa result of the structure) from the personwho placed the structure (SW Act, s 44(5),(6); HW Act, s 25(5), (6)).Sydney Water and Hunter Water can alsorecover compensation for any damage orinterference suffered to their water or seweragesystems, from any activity, if the personcarrying out the activity (or their agent orassistant) should have known that damageor interference would result (SW Act, s 45;HW Act, s 26).For Gosford Council and Wyong Councilcustomers: Similar provisions apply to structuresand things that obstruct works ownedby Gosford/Wyong Councils’ WaterAuthority. The councils are authorised todemolish or remove the obstruction, repairtheir works and recover the costs from theperson who placed the obstruction (WMAct, s 300).Interference by treesFor Sydney Water and Hunter Water customersonly: Except for trees protected by heritagelistings, Sydney Water and Hunter Watermay give 14 days’ written notice to aproperty owner to remove a tree that isdamaging or interfering with water or sewerageworks. Upon receiving notice, theowner can take steps at their own expenseto minimise the obstruction without removingthe tree. If the land owner does notcomply with the notice within the specifiedperiod, Sydney Water and Hunter Watermay remove the tree (SW Act, s 46; HW Act,s 27; see also their respective operatinglicences).Sydney Water and Hunter Water willgenerally reimburse the land owner for thereasonable costs of the removal of the treeunless:• the land owner would have reasonablyknown that the planting of the tree wouldresult in damage or interference, or• an easement existed in favour of worksowned by Sydney Water or Hunter Waterwhen the tree was planted (SW Act,s 46(2); HW Act, s 27(2)).[11.670] Service andmaintenance obligationsThis section contains information for SydneyWater and Hunter Water customers. Customerswho reside in the Gosford andWyong Council areas should contact theirrelevant council for policies relating to serviceand maintenance obligations.Responsibility for maintenanceCustomers have responsibility for the maintenanceof all pipes and fittings up to thepoint that they connect to the water andsewerage mains owned by Sydney Water orHunter Water (the “customer’s system”).The water supplier is responsible for anyblockages or spills caused by problems ontheir water or sewer network (the “supplier’ssystem”).Customers have an obligation to notifySydney Water or Hunter Water of anyfailures of which they become aware, suchas interruptions to supply or leaks in thesupplier’s system. If the failure is located inthe customer’s system between the watermeter and the water main, both SydneyWater and Hunter Water will repair thecustomer’s system up to one metre from themain, as a customer service (see SydneyWater and Hunter Water customercontracts).

11 Consumers 389MeterUnless a person has caused damage to themeter either negligently or on purpose,Sydney Water and Hunter Water have responsibilityover the maintenance (and costsof maintenance) of meters regardless ofwhere they are placed.Customers may also ask for their meter tobe tested. If the meter is working accurately,the customer will be required to pay for thecost of testing (see Types of charges at[11.630]). However, if the meter is overrecordingby more than 3% of the actualamount of water passing through it, SydneyWater will:• repair or replace the meter,• refund any meter testing charges, and• adjust the customer’s account on a basisthat is representative of the customer’sconsumption pattern.The same applies to Hunter Water where themeter is over-recording by more than 4%.Sewer blockageCustomers are responsible for maintainingtheir private sewer pipes up to the junctionwhere they connect with Sydney Water orHunter Water’s sewer main. If the blockageis in the customer’s system, the customer isresponsible for arranging for a licensedplumber to clear the blockage.Sydney Water and Hunter Water will clearany blockages in their sewer main at theirown cost, upon the notification of a blockageby a customer. However, a customer may beliable for the cost of clearing the blockage tothe extent that they caused it.Sewage overflowSydney Water and Hunter Water are responsiblefor cleaning up any damage andminimising health risks to the public if thereis a sewage spill on a customer’s propertycaused by a failure of the supplier’s system,such as a blockage.For Sydney Water customers: In the event ofa sewer overflow, customers usually calltheir private plumber. If the plumber identifiesthe blockage as being in Sydney Water’ssewer main, they will need to notify SydneyWater as they are not authorised to performwork on Sydney Water’s mains. SydneyWater will investigate and if they acceptresponsibility, Sydney Water will fix theproblem. The customer can claim for theplumber’s reasonable costs under SydneyWater’s sewer choke policy.For Hunter Water customers: If a customerreports a sewage overflow and HunterWater confirms that it is a one-off dryweatheroverflow due to a failure in theirsystem, Hunter Water provides customerswith a rebate of 30kL of water that is appliedto their next bill. If a customer experiencesthree or more dry weather sewage overflowsin a financial year due to a failure inHunter Water’s system, the customer isentitled to have a rebate of 120kL of waterapplied to their next bill.Service interruptionsIt may be necessary for Sydney Water orHunter Water to interrupt a customer’swater supply or sewerage service for maintenancepurposes. In the event of a plannedservice interruption, Sydney Water andHunter Water will provide customers withtwo days’ written notice (seven days fornon-residential customers) outlining the expectedtime and length of the interruption.Sydney Water and Hunter Water will attemptto ensure that any planned interruptionsare no longer than five hours.If customers experience an unplannedinterruption to their water supply or sewerageservice, Sydney Water and Hunter Waterwill attempt to restore the service as soonas possible and provide information on a24-hour emergency phone service. The suppliersmay provide emergency supplies ofwater in specific circumstances.For Sydney Water customers:• If a planned interruption is longer thanfive hours, customers are entitled to anautomatic rebate of 10% of their quarterlywater and/or sewerage service charge(subject to a minimum payment of $30).• If an unplanned interruption is longerthan five hours, customers are entitled toa rebate of 10% of their quarterly waterand/or sewerage service charge (subjectto a minimum payment of $30).

390 The Law HandbookFor Hunter Water customers:• If a customer experiences three or moreplanned interruptions in a financial year,each exceeding five hours in duration, thecustomer is entitled to a rebate of 15kL tobe applied to their next bill• If a customer experiences an unplannedinterruption for over five hours between5am and 11pm, the customer is entitled toa rebate of 15kL to be applied to theirnext bill. The same entitlement applieswhere a customer experiences three ormore unplanned interruptions between5am and 11pm in a financial year, eachlasting more than one hour in duration.Water pressureSydney Water supplies water at a minimumpressure of 15 metres head at the point ofconnection with the customer’s system (seeResponsibility for maintenance at [11.670]above). Hunter Water supplies water at aminimum pressure of 20 metres head.For Sydney Water customers: If water issupplied at less than 15 metres head at thepoint of connection for a continuous periodof 15 minutes, customers are entitled to arebate of 10% of their quarterly waterservice charge (subject to a minimum paymentof $30).For Hunter Water customers: If water issupplied at less than 15 metres head at thepoint of connection on more than fiveoccasions within a financial year due to afailure of Hunter Water’s system, customersare entitled to a rebate of 15kL to be appliedto their next bill.Water qualityDrinking water must comply with the AustralianDrinking Water Guidelines developedby the National Health and Medical ResearchCouncil (NHMRC).Dirty waterIf customers are not supplied clean watersuitable for normal domestic purposes, theymay be eligible for rebates or compensation.Customers should contact Sydney Water orHunter Water to investigate.For Sydney Water customers: If the cause ofdirty water is the fault of Sydney Water,customers may be eligible to a rebate of $20or twice the value of the average maximumdaily consumption of the customer’s property(whichever is greater).For Hunter Water customers: If the cause ofdirty water is the fault of Hunter Water,customers may be eligible to compensationfor damage caused by the dirty water or arefund of the costs associated with flushingthe customer’s water system.Contaminated waterIf NSW Health issues a “boil water” alertdue to a contamination of drinking watercaused by Sydney Water or Hunter Water,Sydney Water customers are entitled to arebate of $30 and Hunter Water customersare entitled to a rebate of 15kL to be appliedto their next bill.Recycled waterSydney Water and Hunter Water may supplyrecycled water to a customer under aseparate agreement. Both suppliers will giveinformation on the appropriate use of recycledwater.[11.680] Rural and regional consumersRural and regional customers should con-tact their water supplier for policies con­cerning:• billing, including concerns about paymentdifficulties or disputed high billsThe majority of local councils in rural andregional NSW exercise water supply functionsunder Chapter 6 Part 3 Division 2 ofthe Local Government Act 1993.

11 Consumers 391• the disconnection and restriction of watersupply, including under what circumstancescustomers will be given notice• hardship and concession schemes, includingpensioner rebates, payment plans(including Centrepay for Centrelink customers)and other rebates and hardshipschemes• meter reading and testing arrangements• powers of entry onto customers’ property• service and maintenance obligations, includingthe division of responsibilitiesbetween the water supplier and the customerfor the maintenance of water andsewerage systems• precautions that should be taken to avoiddamaging the supplier’s water or sewersystem, particularly before commencingbuilding or landscaping work or plantingtrees• the performance of the water supplierwith regard to measures of water supply,pressure, and quality and rates of compliancewith the Best-Practice Management ofWater Supply and Sewerage Guidelines• any special health needs that requirespecific water supply arrangements.Rural and regional customers who havecomplaints relating to water or sewerageservices provided by local government authoritiesshould be directed to the relevantcouncil in the first instance, or the NSWOmbudsman if they are not satisfied withthe council’s response. However, EssentialEnergy customers (in the Broken Hill region)can make a complaint to EWON ifthey are not satisfied with Essential Energy’sresponse.[11.690] TenantsPrivate housing tenantsWater accounts are always in the name ofthe property owner. Private tenants are notresponsible for paying the service chargeson the water bills issued to the owner oftheir rental premises but may be responsiblefor the water usage charges if the ownerchooses to pass them on. Before a tenant isresponsible, the premises must be separatelymetered, they must contain water efficiencymeasures, and the charge may not exceedthe charge made to the landlord. A tenantmust receive the benefit of any rebate paidto the landlord. A landlord who pays thecharge may seek to recover the paymentmade, within time limits (Residential TenanciesAct 2010 (NSW) s 39).Where an account is overdue, SydneyWater and Hunter Water are required toissue notices warning of an impendingrestriction or disconnection (see Notice requirementsbefore restriction or disconnectionfor non-payment under [11.640]).Sydney Water and Hunter Water will issuereminder notices to the property owner, andfinal or disconnection warning notices toboth the tenant and property owner. If alandlord fails to pay an account on time andthe tenant is facing disconnection or restrictionof their water supply, the tenant shouldimmediately contact their landlord or estateagent to discuss the matter. If this provesunsuccessful, the tenant can contact NSWFair Trading or the Tenants’ Union for moreinformation. If the tenant is at immediaterisk of having their water supply restrictedor disconnected, or if this has alreadyoccurred, they can contact the Energy &Water Ombudsman NSW (EWON) forassistance.The tenant is allowed under law to paythe unpaid water bills of the property ownerand to deduct this from their rent (HW Act,s 41, SW Act, s 62). Sometimes a lease mayrequire tenants to pay the water usagecharges, however the property owner is stillresponsible for service charges.

392 The Law Handbook[11.700] Public housingtenantsGenerally, public housing tenants arecharged for their water usage in addition totheir rent (Residential Tenancies Act 2011(NSW), s 139). Tenants do not pay forconnection, sewerage and other charges notrelated to water usage. Tenants are requiredto pay in accordance with the CommunityHousing Water Charging Guidelines (July2012). The Guidelines provide instructionson the calculation of water usage charges,adjustments to tenants’ water chargingaccounts, allowances and exemptions towater charging.A small number of properties are exemptfrom water charges. If a tenant is unsureabout whether water charges apply to them,they should contact Housing NSW.Percentage water chargesThe percentage water charge is set as apercentage of the rent a tenant pays (adjustedto a maximum amount). If a wholehousehold is absent from the property inexcess of six weeks with the approval ofHousing NSW, the tenant will not be liablefor percentage water charges.The Department of Family and CommunityServices reviews the percentage watercharge to take into account the specificusage needs of residents and the costsinvolved with the specific circumstance ofthe property, such as common grass areas.Actual water chargesHomes that are metered separately arecharged for water based on the actual waterusage at the premises.Tenants who are charged actual watercharges may be eligible for an allowancewhere there is:• a resident who uses a kidney dialysismachine• a resident who can demonstrate a healthissue or disability which necessitates theuse of significantly higher amounts ofwater• a large household with six or morepersons.Payment difficultiesTenants who face payment difficulties shouldnotify Housing NSW immediately. HousingNSW will work with the tenant to resolvethe difficulty.Getting helpTenants should speak to their client serviceofficer if they have concerns over:• perceived errors in the application orcalculation of water charges• the rectification of water leaks on theproperty• meter readings• eligibility for exemptions from watercharges.If the problem is not resolved, the tenantmay appeal to Housing NSW. See Complaintsand appeals in chapter 29, Housing.[11.710] Residential parktenantsResidential park tenants may be required topay water availability charges. However,park tenants cannot be charged for waterusage unless the home or site has its ownwater meter. A park owner cannot chargetenants for the installation costs of watermeters.Park residents who pay for their waterconsumption separately from their rent areable to apply to the NSW Civil and AdministrativeTribunal for a rent deduction. Parkowners cannot charge these residents abovewater consumption charges charged by thelocal water authority (Residential Parks Act1998, s 39(2)) and the water availabilitycharges must be no more than $50 per year(Residential Parks Regulation 2006, cl 18).They must give park tenants regular accountssetting out the meter readings, waterusage and the charge per unit of water.For more information, park residentsshould contact NSW Fair Trading. See alsoTenants in residential parks in chapter 29,Housing.

11 Consumers 393[11.720] Making a complaint - waterCustomers should approach their supplierdirectly in the first instance to make acomplaint. If the initial point of contact withthe water supplier cannot resolve theproblem, customers can ask to speak tosomeone in a more senior position. Customersare advised to keep records of anycorrespondence or discussion with theirsupplier (for example, date, time, who theyspoke to).If a customer is not satisfied with theresponse, they may consider making a furthercomplaint to the relevant authoritylisted below.Sydney Water, Hunter Water, GosfordCity Council, Essential Energy and StateWater customersFor customers of Sydney Water, HunterWater, Essential Energy or State Water, if theproblem is not resolved by the relevantsupplier or is not dealt with in a reasonabletime, contact EWON on 1800 246 545.EWON also has jurisdiction over thefollowing water providers:• AquaNet• Flow Systems• Shoalhaven Water• Sydney Desalination Plant• Veolia Water Solutions & Technologies.Complaints can be lodged by phone, letter,fax, email, in person or online (www.ewon.com.au). EWON’s service is free forcustomers.Complaints to EWON can relate to:• billing, credit and debt management• disconnection or restriction of supply• service and maintenance obligations, includingsupply quality• damage or loss to property resulting fromsuch events as interruptions to supply,burst water mains and sewer chokes• any rights or obligations conferred on thewater supplier by law or under theiroperating licences.EWON’s investigation may include:• seeking further information from the supplierand/or customer• independent expert advice.In most cases EWON is able to negotiate aresolution with the customer and theirsupplier. Where a resolution cannot bereached, the Ombudsman can make a determinationto settle the matter. If the customerchooses to accept the determination, it willbe binding on the provider.EWON is not able to review disputesrelating to price increases, governmentpolicy, private contractors or landlords.Local authority customersFor water customers of local authorities, ifthe problem is not resolved by the councilresponsible or not dealt with in a reasonabletime, they can contact the NSWOmbudsman.For information on making a complaint tothe Ombudsman, see The Ombudsman inchapter 10, Complaints.

394 The Law HandbookHome building consumers[11.730] LegislationThe Home Building Act 1989 (NSW) (HBA)and the Home Building Regulation 2004 (NSW)(HBR) are the pieces of legislation thatregulate the interactions between builders,contractors, traders (tradespeople) andconsumers. There have been numerouschanges to the Home Building Act andRegulation (56 historical versions of the Actsince July 2000 and 49 historical versions ofthe Regulations since 2004). Legislation yetto be proclaimed is the Home BuildingAmendment Act 2014 (HBAA 2014) and theHome Building Regulation 2014 (HBR 2014).The current amendments were made in2011, and these amendments apply to contractsfor residential building work enteredinto after 1 February 2012. This chapter willconcentrate on these regimes as most currenthome building disputes encountered byconsumers will fall within these regimes.For contracts pre February 2012 contact theHome Building Advocacy Service (HoBAS)or a private solicitor through the NSW LawSociety Referral Service. At the time ofwriting this chapter the Home BuildingAmendment Act does not have a commencementdate, and the concurrent Home BuildingRegulation is at public consultation stage.NSW Fair Trading has suggested a date inDecember 2014, however the writer is of theopinion commencement will be early 2015.Contracts[11.740] Residential homebuilding contracts and theHome Building ActSections 7 of the Home Building Act stateswhat a home building contract shouldcontain.HBA, s 7 regulates and outlines all thebasic contents of building contracts. Contractscan be broken into two groups:(a) contracts over $5000 (ie the form of thecontract is set out in s 7, consumerinformation must be provided (s 7AA)and cooling-off periods are provided forcontracts over $20,000 (ss 7BA and 7BB));and(b) contracts $1000 to $5000 called smalljobs (s 7AAA).Consumers entering into contracts over$1000 should be provided with a signedcopy of the contract within five clear businessdays.It is an offence (s 7A) if a contractor doesnot comply with the contents provisionswithin all building contracts.Note: The 2014 amendments do slightlyvary (s 7).

11 Consumers 395Types of contracts[11.750] Fixed price contractsA fixed price contract is intended to be for a“fixed price” or specified amount. A fixedprice contract will state a price for the entireproject and will usually specify when pay-ments (progress payment schedules) are tobe made. These types of contracts do notusually remain fixed throughout the entirebuild due to variations (see section [11.790]of this chapter for variations).Other types of contracts[11.760] Cost plus contractsA cost plus contract is only used in extremelylimited circumstances, usuallywhere the price cannot be determinedupfront. It is a contract where the tradespersonis reimbursed for the direct and indirectcosts of the work plus a tradesperson’spercentage or fee. It is essential that thecosts are monitored extremely closely, otherwisethe final amount often may end upbeing significantly higher than what theconsumer intended.[11.770] Design and constructcontractsA design and construct contract covers boththe design and construction of a residentialproperty. Further investigations should bemade with NSW Fair Trading or a privatesolicitor before entering into these types ofcontracts.Note: Architectural designs are not coveredby the HBA.[11.780] Deposits forcontractsSection 8 of the HBA sets the maximumdeposits payable for home buildingcontracts. For contracts entered into after thecommencement of the Home Building AmendmentAct, the maximum deposit a tradespersoncan charge is 10% of the price, regardlessof the contract price. For contractsentered into before the HBAA 2014, themaximum deposit a tradesperson can chargeis 10% for contracts under $20,000 and 5% ifthe contract price is more than $20,000.[11.790] Variations oncontractsVariations are any changes (additions ordeletions) that are made to a contract after ithas been signed. Variations can be requestedby either the tradesperson or the consumer.It is the obligation of the tradesperson to putall variations in writing to the consumer andto obtain the signature of both parties priorto the commencement of the variation work(HBR Schedule 2, Reg 1(2) and HBAA 2014,Sch 2(1), (2)). The variation should contain:• a written description of the work• any plans or specifications for the work• the extra cost, and any extra time requiredto complete the work.The Australian Standards (AS 2124 – 1992)also detail how variations should be conductedso as to be legally binding. Thetradesperson may need to vary the contractbecause of unforeseen circumstances such asthe possibility of a hazard to the health orsafety of any person, to the public ordamage to property (HBA, s 6(2A)). If the

396 The Law Handbookconsumer chooses to vary the contract itfollows that the consumer should pay. If avariation should have been calculated intothe contract price or the reason for increasevariation is the tradesperson’s fault, theconsumer should not have to pay.When consent has not be obtained fromthe consumer, variations that result in anincreased cost, are arguably invalid. Fordisputed amounts up to $500,000, the NewSouth Wales Civil and Administrative Tribunal(NCAT) is the preferred jurisdiction (asdistinct from Local or District Courts) fordetermining the validity of a variation.The tradesperson can claim a reasonablesum of money for works that have beenperformed. This type of claim is known as aquantum meruit. Quantum meruit comes fromthe law of unjust enrichment, which isestablished by the following:• the receiving party must have been enrichedby receiving a “benefit”• the “benefit” must have been gained atthe expense of the party performing thework• it would be unjust, in the circumstances,to allow the receiving party to retain thebenefit. A successful quantum meruit claimentitles the claiming party to the reasonablevalue of services performed. Theleading Australian case in this area isPavey & Matthews Pty Ltd v Paul [1987]HCA 5.[11.800] Termination of acontractTerminating a building contract can haveserious legal consequences and a consumershould seek legal advice before terminatinga building contract. A consumer must havesufficient reason to do so, such as a seriousbreach of the contract by the tradesperson,otherwise the consumer is committing aserious breach. Examples of serious breachesof contract are:• tradesperson - non-performance or noncompletionof the contract work• consumer - non-payment for the buildingwork.Some contracts have termination clauseswhich outline the circumstances that allowthe parties to terminate their contract, theprocess and procedure as well as any terminationpenalties.The two main consequences of terminationare that the tradesperson is entitled toall reasonable costs incurred in performingthe contract up until the date of terminationand the tradesperson may take action againstthe consumer for potential breach ofcontract.[11.810] Delay of worksOver the period of building works there canbe delays in performing such work. Contractssometimes include clauses that requirethe tradesperson to pay compensation to theconsumer in the event works are delayed.Consumer should always attempt to negotiatea liquidated damage clause in thecontract based on a genuine pre-estimate ofthe cost to the consumer of the delay. Thiswill entitle the consumer to damages foreach day of delay, should the tradespersonnot complete the building work on time andhave no valid legal reason. The tradespersoncan request an extension of time if there aregood reasons such as bad weatherconditions, delays in the supply of materialsand labour, or other circumstances that maybe outside of the tradesperson’s control. It isalso important to ensure there is a commencementdate and completion date forthe work to be done under the contract.

11 Consumers 397[11.820] Defective workThe law sets out what are considered defectiveworks.For contracts entered into after 1 February2012 but before the HBAA 2014, defectivework is divided into two categories, structural(six year warranty) and non-structuralworks (two year warranty) (HBA, s 18E). Astructural defect is defined in detail in HBR(pre-Amendments), reg 71. However thereg 3 interpretation succinctly states “acomponent which provides necessary supportingstructure to any part of thebuilding”.For contracts entered into after the commencementof the HBAA 2014, “structuraldefects” have been replaced with “majordefects” (HBAA, s 18E(3) and (4)). To attractthe maximum period of a warranty, a majordefect must exist in a “major element” of abuilding. The defect must also:• threaten, or result in, partial or totalcollapse or destruction of the building, or• prevent part or all of the building beingoccupied or used for its intended purpose.For the first time fire safety systems andwaterproofing are specifically included as amajor element of a building. These timeframes start from when the work iscompleted. The limitation periods for makinga warranty claim start from when thework is completed (see [11.850] Completion).[11.830] Statutory warrantiesConsumers have rights to statutorywarranties, similar to legal promises whichare implied into every building contract.These warranties are found in the HBA,s 18B - Warranties as to residential buildingwork.Contracts entered into after the commencementof the Home Building AmendmentAct have a warranty that work will be “donewith due care and skill” and in accordancewith the plans and specifications set out inthe contract.This is a recent change to bring homebuilding terminology into alignment withthe Australian Consumer Law (ACL). Thisreplaces the previous wording that workmust be “performed in a proper and workmanlikemanner”.Other statutory warranties are more specificand give consumers protections in areassuch as:• good and suitable materials to be used(usually new)• work to be done in accordance with this,and any other law• work performed with due diligence andwithin a reasonable time, or the timestipulated• work that is reasonably fit for occupationas a dwelling• work that is fit for the purpose and usesthe contractor’s (tradesperson’s) skill andjudgement.TThe HBAA 2014 adds duties to the consumerhaving the benefit of the s 18Bstatutory warranties.Section 18BA of the HBAA 2014 requiresthe consumer to:• notify the contractor (tradesperson) inwriting within six months of becomingaware of a defect• allow reasonable access to the tradespersonto fix such defects• mitigate their losses in relation to thedefects.

398 The Law Handbook[11.840] Limitation periodsLimitation dates are set out in s 18E of theHBA.For contracts entered into after the commencementof the HBAA 2014, a consumermust apply to NSW Civil and AdministrativeTribunal (NCAT), (or a court) withinsix years, if the defective work relates tomajor defects and for other works, withintwo years.For contracts entered into after 12 February2012 but before the HBAA 2014, aconsumer must apply to NCAT withinsix years, if the defective work relates to anissue that is structural in nature, ortwo years, if the issue is other than structuralin nature.These time frames start from when thework is completed.[11.850] CompletionCompletion is defined in the HBA in s 3Bwhich states that completion is:• as defined by the contract• if the contract is silent, upon “practicalcompletion” (defined below).Practical completion is defined (in HBA,s 3B(3)) as the event that occurs earliest ofthe following:• the contractor handing over possession ofthe work to the consumer• the contractor’s last attendance on site tocarry out the building work• the date of issue of the occupation certificateto the consumer• in the case of owner builder works, 18months after the issue of the ownerbuilder permit for the work.[11.860] NSW Fair TradingNSW Fair Trading deals with disputes aboutdefective and incomplete works, and damagecaused by builders and tradespeople asa result of carrying out residential buildingwork. NSW Fair Trading will attempt tonegotiate a suitable settlement between aconsumer and the tradesperson (NSW FairTrading Dispute Resolution). If there isdefective and/or incomplete work the consumershould contact NSW Fair Trading andlodge a home building complaint. The consumerand tradesperson can meet onsitewith a NSW Fair Trading building inspectorand discuss the issues raised in thecomplaint. NSW Fair Trading may issue arectification order, which is an order (notlegally binding) to rectify or complete workwithin a specified timeframe.If the consumer does not achieve anoutcome to their satisfaction with NSW FairTrading Dispute Resolution they may bedirected to seek some telephone advice fromMacquarie Legal Centre’s Home BuildingAdvocacy Service (HoBAS) about proceedingto NCAT to resolve their buildingdispute. In most cases of incomplete anddefective work, NCAT requires the consumerto undertake NSW Fair TradingDispute Resolution.

11 Consumers 399[11.870] The NSW Civil and AdministrativeTribunal (NCAT)Home Building matters are heard in theConsumer and Commercial Division of theNSW Civil and Administrative Tribunal(NCAT). NCAT is the preferred jurisdictionfor home building claims under $500,000.See earlier in this chapter [11.220] Consumerprotection laws – Resolving consumerdisputes.The NCAT website has factsheets on mostaspects of NCAT procedures, from lodgingan application through to the final hearing.The website provides procedural directionson how to organise evidence, as well asprocedural directions for expert witnesses.[11.880] Lodging anapplicationConsumers can obtain a home buildingapplication form from the NSW Civil andAdministrative Tribunal’s website, or fromNSW Fair Trading. Particular attentionshould be paid to the guide to complete theform. Note that there is a filing fee.[11.890] Transfers ofproceedingsIf a consumer receives a Statement of Claimfrom a NSW court with respect to a homebuilding matter, there is the option (apreferred option) of applying to have thematter transferred to NCAT. In order totransfer proceedings from the NSW Court toNCAT, the defendant should complete aNotice of Motion. The defendant must setout in the orders sought, that they wish tohave the proceedings transferred from thecourt to NCAT. The defendant should alsoinclude an affidavit setting out the reasonsfor the transfer.[11.900] Directions hearingThe first hearing is generally a directionshearing and/or a conciliation hearing, howeverthe letter that the consumer receiveswill be titled Notice of Hearing (Conciliationand Group List), which can be alarming tothe consumer. The consumer and tradespersonwill be encouraged to conciliate with theother party. If the conciliation is notsuccessful, directions will be given as towhen evidence needs to be lodged. Thesedirections are referred to as “proceduraldirections”. They are typed up by theTribunal Member (Member) and includeinformation for the parties as to due datesand what their evidence should include. Theconsumer must be aware that the evidencelist is not exhaustive and below is a short listof the type of pieces of evidence that shouldbe included.[11.910] EvidenceThe documents that the consumer shouldinclude in evidence to NCAT in support of ahome building claim could include (but isnot limited to):• the home building contract• certificates of insurance• any types of records of payments (bills,invoices, receipts, bank statements etc)• written quotes for rectification of thedefective work• an expert building report• a Scott Schedule completed by the abovementionedexpert• statutory declarations,• photographs,• a chronology.

400 The Law HandbookThe consumer must submit the evidence asper the procedural directions issued by themember as evidence submitted after thisdate is rarely accepted.[11.920] Expert buildingreportsAn “expert” is any professional person whohas specialised knowledge, skills or qualificationsand the ability to provide an expertopinion. An expert is not an advocate for theparty who employs them. The expert has aduty to the Tribunal to remain neutral andprovide independent evidence for the Tribunalvia their report and through giving oralevidence in the Tribunal. Some of the mostimportant aspects an expert report shouldaddress include:• giving an opinion about why the work isdefective or incomplete work• the need for repair• the method of repair• the cost of repair.The expert usually needs to complete a ScottSchedule which is a summarised table ofthese main issues whereby the expert alsobreaks down the defective (or incomplete)items and gives each item a cost.[11.930] Before engaging anexpertBefore engaging an expert, questions as totheir experience should be asked to ensurethe report is admissible as evidence and isgiven strong weight. Examples of the type ofquestions that should be asked are:1. Has the expert completed reports for theTribunal before?2. Does the expert report comply with theTribunal’s Code of Conduct as describedin procedural direction 3?3. Can the expert complete a Scott Schedule?4. Will the expert report include a resumestating that they are qualified to report onthe type of defects in dispute?If they answer yes to all the abovequestions, it is likely that the expert theconsumer is employing is the correct expertfor the Tribunal. In order to ensure nomisunderstanding occurs it may be better toobtain these answers from the expert inwriting, ie email or letter.Expert building reports can be expensive.An expert report can vary from $500-$5000depending on the circumstances. Consumersshould note that NCAT is classified as a “nocosts jurisdiction” and recovery of costsfrom the other party in the instance ofwinning, only applies in some limitedcircumstances.[11.940] ConclavesA conclave is a joint meeting betweenexperts engaged by the applicant and therespondent. The conclave is usually held onsite and is run by the member. Generallyonly the member and experts attend theconclave. The results of the conclave areeither signed off by the experts at theconclave or combined into a final report.[11.950] Final hearingA final hearing is when a member listens toboth sides of the case, considers the evidencepresented and then makes a legallybinding order. The final hearing is conductedlike an informal court. There may beother people in the hearing room as hearingsare open to the public.[11.960] NCAT appealsGenerally, a party has the right to appeal adecision of NCAT. The appellant has 28 daysto lodge an appeal.Internal appeals are required to be heardby the NCAT Appeal Panel. Parties need toseek leave of NCAT unless the appeal isbased on a question of law. If leave needs tobe sought, the applicant (appellant) mustprove to NCATs Appeal Panel, that theyhave suffered a substantial miscarriage ofjustice because:(a) the decision was not fair and equitable(b) the decision was against the weight ofevidence, or(c) significant new evidence has arisen (thatwas not reasonably available at the timeof the original hearing).

11 Consumers 401There is no simple test as to whether theissue to be appealed is “a question of law”.It is recommended that legal advice besought in this regard and to read the “NCATGuideline 1: Internal Appeals” factsheet thatis available on the NCAT website (www.ncat.nsw.gov.au) for further information.External appeals to the District Court orSupreme Court (in limited circumstances)are also available from NCAT decisions.External appeals are costly and complicatedand it is recommended that legal advice besought before commencing proceedings.In limited circumstances, an NCAT decisionmay be able to be set aside as analternative to an appeal.[11.970] InsuranceThe consumer protection that is currentlyknown as “Home Warranty Insurance”(HWI), will be renamed “Home BuildingCompensation” with the commencement ofthe HBAA 2014. The change of name isintended to let consumers know that it isdifferent from other types of insurance andonly provides compensation for some losseswhen the tradesperson is dead, has disappearedfrom Australia or is bankrupt or(been deemed) insolvent. The consumermay make a claim for defective and/orincomplete works. The industry likely willfor some years still refer to this insurance asHWI. HWI is required when the contractprice is over $20,000, (or the reasonablemarket cost of the labour and materialsinvolved is over $20,000). It is an offence notto provide HWI. A tradesperson cannothave the consumer sign two contracts thatcome to a sum of $20,000 or more in order toavoid HWI.Within six months of a consumer becomingaware of any defective or incompletework, the consumer must notify their HWIprovider in writing of the potential claim.This notification must be done within theperiod of insurance. The consumer shouldread the insurance policy carefully to checkthe period of cover, the time limits fornotifying of a loss and any other requirementof the provider.From 1 February 2012, HWI policies mustprovide cover of at least $340,000. Theprevious level of minimum cover was$300,000.HWI policies issued from 19 May 2009enabled homeowners to claim on the insurancepolicy where the licence had beensuspended under HBA, s 42A for failing tocomply with a money (compensation) ordermade by a Tribunal or Court (HBA, s 99(5)).This is because HBA, s 99(3) includes aprovision in the contract of insurance thatthe tradesperson is deemed to be insolventfor the purpose of the application of thepolicy.Cover for loss arising from defective workis provided for a period of:• six years from the date of completion ofthe work or the end of the contract for thework (whichever is the later) for lossarising from a structural defect (“majorworks”) (HBAA 2014), and• two years for loss arising otherwise thanfrom a structural defect (being worksother than major works (HBAA 2014)).Cover is also provided for loss arising fromnon-completion of work for a period of12 months after the failure to commence, orcessation of, the work.An additional six months cover applies incases where the loss becomes apparent inthe final six months of the period ofinsurance.The commencement of the HBAA 2014will see the introduction of a Public Registerof insurance certificates. This will help consumerscheck that their insurance exists, is

402 The Law Handbookgenuine and let home purchasers know ifthere have been previous claims on theproperty.The consumer should always check theinsurance certificate against the contract andmake sure that all aspects match, specifically,the licensed contractor’s name and address,the consumer’s name and address, the addressof the property and the contract dollaramount.Telephone and the internet[11.980] IntroductionCommunications systems – the telegraph,the telephone and more recently, access tothe internet – are nationally regulated. Formost of the twentieth century, inter-personalcommunications – the post, the telegraphand later the phone – were provided by thePostmaster General’s (PMG) Office – a FederalDepartment. In 1989, telecommunicationswere liberalised, with the provision ofinfrastructure and services fully open tocompetition by 1997. However, the formerPMG, later Telecom and now Telstra, stillretains the lion’s share of the telecommunicationsmarkets.[11.990] The regulatoryframeworkThe Telecommunications Act 1997 (Cth) (TA)and the Telecommunications (Consumer Protectionand Service Standards) Act 1999 (Cth)(T(CPSS)A) are the two pieces of legislationthat provide industry specific consumerprotections. General consumer protectionsare provided by the Australian ConsumerLaw, in Schedule 2 of the Competition andConsumer Act and the Privacy Act 1988 (Cth).Some of the consumer protections discussedbelow are provided by either the TAor the T(CPSS)A. However, most of theconsumer protections are provided by industrycodes, particularly the TelecommunicationsConsumer Protection Code (TCP Code).All codes are available on the ACMA’sRegister of Codes available at: www.acma.gov.au/theACMA/Library/Corporatelibrary/Forms-and-registers/register-ofcodesPart 6 of the TA, sets out the process to befollowed in the development of “registered”codes. While codes are developed by whatthe legislation calls “a section of theindustry”, at least one consumerorganisation, the ACCC and, in codes thatimpact on privacy, the OAIC, must beconsulted in their development. Once thecommunications regulator, the AustralianCommunications and Media Authority(ACMA) is satisfied that the legislativerequirements for the development of thecode have been met, it “registers” the code.Once a code is registered, the ACMA thenhas the power to issue a “formal warning”to a service provider(s) for non-compliancewith provision(s) of the code, followed ifnecessary by a direction to comply, whichcan be enforced in the Federal Court. Codesdiscussed in this chapter are all registeredcodes. The ACMA can also request industryto develop a code to address issues thatprovide “appropriate communitysafeguards” or otherwise, the performanceof participants in the industry (TA, s 118).The ACMA can also then develop a mandatoryindustry standard either if industryfails to respond to the ACMA’s formalrequest for a code, or a registered code is, insome way deficient (TA, s 123, 125).Some definitions:• Customer in this chapter refers to customerswho acquire a service(s) primarilyfor domestic purposes, or a business ornon-profit organisation that acquires theservice(s) under a standard contract, witha maximum annual spend estimated on

11 Consumers 403reasonable grounds to be less than$20,000 and does not acquire the service(s)for resale.• Carriage service providers (CSPs) meansthe retail providers of telecommunicationsservices to the public• Fixed line service is a telecommunicationsservice (phone and/or Internet access)that is provided through a telephonesocket in the premises. The communicationssystem (phone and/or Internet) isprovided by a device(s) plugged into thesocket and connected to the communicationsdevice (telephone handset, Internetmodem, etc)• Internet is a transmission system that letsthe customer(s) access a range of communicationsservices (emails, the web, aVoice over IP – VoIP – service such asSkype, apps etc) using specific transmissionprotocols• Wireless service is a communications serviceprovided by radio communicationstechnology and the communications device(s)not “plugged into” a wall socketin the premises[11.1000] Getting a serviceMost companies offer a “bundle” of servicesthat can include a standard telephone service(fixed line or wireless) to the premises,a mobile phone service, an Internet accessservice and/or a pay TV service. The“bundle” may also offer communicationsequipment such as a handset and/or amodem as part of the package.Generally, the cost to consumers of the“bundled” package will be cheaper than ifthe customer had acquired each serviceand/or piece of equipment individually.However, such “bundles” are more commonlyavailable under a contract for aminimum period, with penalties for earlytermination of the contract.Before signing up to a telecommunicationscontract, customers should be advisedto carefully consider what communicationsservices they use and how much of eachservice is used on a regular basis. Lookingover past accounts will help customersdetermine what their specific communicationsneeds are.CSPs are required to provide a “criticalinformation summary” that allows customersto compare products and services offeredby various providers. Each summary mustinclude a description of the service(s) provided(including whether it is offered as partof a “bundle”), the minimum term applicableand any exclusions or limitations onthe offer. Under pricing information, thesummary must include minimum monthlycharges as well as any minimum spend overthe life of the contract, any terminationcharges, and any limitations on the offer.CSPs must also provide a range of informationon pricing, including standard chargesthat allows customers to compare the offerwith service offers from other CSPs (TCPCode, cl 4.1.2).[11.1010] AdditionalinformationCustomers living outside of city areas shouldalso ask about mobile phone coverage if thatservice is included in the package. CSPs arealso required to tell customers with a disabilityabout any features of telecommunicationsequipment they provide that has featuresthat will assist the customer to use theequipment (TCP Code, cl 3.3.2). If customerstravel, they should also ask about anyroaming charges for use of a phone orinternet service overseas. Customers withparticular privacy needs should also askabout any charges to have a silent orunlisted number.[11.1020] Credit assessmentBefore providing post-paid services to acustomer, CSPs must undertake a creditassessment of the customer and advise themof the financial implications of the service(s).If, as a consequence of the credit assessment,the CSP will provide restrictions on theirservice, the CSP must provide reasons for

404 The Law Handbookthat decision, the nature of the restrictionsand the circumstances under which restrictionswill be removed (TCP Code, s 6).[11.1030] Managingexpenditure ontelecommunicationsAll CSPs must provide their customers withinformation about the “spend managementtools” they offer. Those tools help customersto take timely action to manage and/or limittheir expenditure on a telecommunicationsproduct. Such tools can include usagenotifications, barring of access to particulartypes of services, or, for Internet services,reducing download speeds.[11.1040] ConnectionThe timeframes that CSPs should meet forthe connection of fixed line service are asfollows:Connection type Community Community size (no. of people) Connection time (after receipt oflocationcustomer’s application)In-place All All Within two working daysconnectionNo in-place Urban Equal to or more than 10,000 Within five working daysconnection people(close to Major rural Between 2,500 and 10,000 people Within 10 working daysavailableinfrastructure)Minor rural and Up to 2,500 people Within 15 working daysremoteThere are also requirements for CSPs tomake, and keep, appointments for the connectionof standard phone services. If a CSPmakes an appointment with a customer forconnecting a service, the appointment periodmust be no longer than five hours (ie,either for the morning or afternoon of anagreed date). The company must keep thisappointment unless it gives the customerreasonable notice. The timelines do notapply where a customer has agreed toaccept an alternative or interim service orwhere there are situations beyond the CSP’scontrol, such as natural disasters. UnderT(CPSS)A, s 115, the Minister directed theACMA to set service standards onconnections, fault repair and appointmenttimes. They were set by the ACMA in theTelecommunications (Customer Service Guarantee)Standard 2011. However, the Governmentis currently considering repeal oflegislation on this topic.[11.1050] During the life of aservice(s)BillingItemised chargesCSPs must provide itemised bills for allcharges relating to the provision of a “standardtelephone service”. The obligation doesnot include itemisation of all local (untimed)calls unless requested by the customer (TA,Sch 2 Pt 5).The billCustomers who are not using a prepaidservice must be offered a choice of whetherto receive a paper bill through the mail, byemail or online. Customers can, instead,agree to having their account paid throughdirect debit, but unless the amount debitedis the same charge each billing period, orwithin 10% of an agreed fixed charge,customers must receive a bill in the agreedformat.

11 Consumers 405In most cases, CSPs cannot bill a customerfor charges older than 160 days from thedate that the charge was incurred. CSPsmust ensure that customers have access toitemised details of all charges includedincluding all timed call charges, unlessadvised by the customer otherwise (TCPCode s 5).[11.1060] Financial hardshipCSPs must have a financial hardship policyto assist customers experiencing difficultiesin meeting their financial obligations. Thepolicy must be easily accessible and informationabout it made available in anyreminder notices. If a customer is assessedas eligible for the policy, options will includeflexible repayment options to meet customerneeds. Any credit management action mustbe suspended while discussions about theapplication of a financial hardship policy areunder way (TCP Code, cl 6.11, 6.12).[11.1070] RepairsCSPs must repair a service within timelines,as set out below unless, again, the CSP hasagreed to provide an interim or alternativeservice. CSPs must also keep agreedappointments, as set out above for serviceconnection times (TCP Code, cl 3.3.2).Community Community size (no. of people) Repair timeUrban Equal to or more than 10,000 people End of next working day after reportRural Between 200 and 10,000 people End of second working day after report*Remote Up to 200 people End of third working day after report*[11.1080] Making a complaintThe first point of call if a customer has acomplaint is their CSP. All CSPs must have aprocess to handle complaints that is easy touse and accessible. The CSP must provide aphone number on which complaints can bemade that is either free or at low cost, andthe actual complaint handling process, free.The exception is when the complaint relatesto matters over two years old or involvesextensive processing or copying of material,in which case the customer must be informedof the potential costs and providedwith information on external dispute resolutionmechanisms.The CSP must try to resolve urgentcomplaints within two days and withinthree weeks for non-urgent matters. If thecustomer is happy with a solution to thecustomer’s problem, the CSP must carry outwhat they have undertaken to do within10 working days.[11.1090] TelecommunicationsIndustry Ombudsman (TIO)The TIO handles complaints made by residentialand small business customers.Complaints can be made online, by phoneusing a toll free number, by mail or inperson and are at no cost to the customer(www.tio.com.au has details for all the waysin which customers can make a complaint).Before handling a complaint, the TIO willask that the customer try to resolve thecomplaint with their CSP if they have notalready done so. The customer will referredback to the CSP, but generally to a moresenior level within the CSP organisation.Most complaints are resolved at this stage. Ifthe customer is disputing a bill and hastaken the matter to the TIO, any debtcollection action by the CSP must be put onhold while the matter is being resolved.If the complaint is still not resolved to thecustomer’s satisfaction, the TIO will investigatethe complaint, seeking first to conciliatethe matter. If still unresolved, the complaintmay be fully investigated and/or the matterarbitrated. On completion of an investigationinto a complaint, the TIO can makebinding decisions on its members to do (orrefrain from doing) actions and pay compensationof up to $50,000. It can makefurther recommendations for payment of upto $100,000. For information on TIO pro­

406 The Law Handbookcesses and powers, see the TIO website,including the TIO Constitution, Annexure A,Clause 6.The T(CPSS)A requires all carriers andCSPs that provide a standard telephoneservice, a mobile service or an Internetaccess service to be members of the TIOscheme and, additionally, they are requiredto comply with the scheme (T(CPSS)A Pt 6).[11.1100] PrivacyThere are several aspects to privacy in thecontext of telecommunications. The generaldata retention protections are provided inthe Australian Privacy Principles of thePrivacy Act 1988 (Cth). They cover thetraditional issues of collection, use andsecure storage of personal information, aswell as specific provisions relating to the useof personal information for marketing purposesand an individual’s access to theirown personal information.Part 13 of the TA also contains provisionsprotecting the collection and use of personalinformation by carriers, CSPs and theiremployees and contractors. This includesnot only the personal information necessaryfor the installation, service, billing, etc ofservices but other personal informationgained in the performance of the carrier/CSP’s employees’ duties – potentially thecontent of communications.The TA also provides for the establishmentof what is called the integrated numberdatabase (IPND). Each CSP must providethe IPND manager with the name,service address, billing address, and publicnumbers (fixed line, mobiles etc) for all theircustomers (TA, Sch 2, Pt 9). The use of IPNDdata is restricted to emergency services, andunder certain circumstances, law enforcementagencies and listed governmentregulators. IPND data, with the exception ofunlisted numbers, may also be used bydirectory producers and for research purposes(TA, ss 277 – 78, 285).The final relevant piece of legislationproviding privacy protection in communicationsis the Telecommunications (Interceptionand Access) Act 1979 (Cth) (TIAA). The TIAAprohibits the interception of a communicationspassing over a telecommunicationssystem. The exceptions to the prohibitioninclude any interception carried out in thecourse of the installation, maintenance andrepair of the communications system, foremergency purposes or when lawful undera warrant (TIAA, s 7). The other offence isaccessing (or authorising access) stored communicationswithout the knowledge of eitherthe recipient or sender (TIAA, s 108).Stored communication is defined in s 5 tomean a communication that is not passingover a telecommunications system, is heldon equipment operated by and in thepossession of a carrier and cannot be accessedby a person who is not a party to thecommunication without the assistance of thecarrier. Two examples would be emails orSMS messages.The other important privacy protection iscontained in the industry code on callingnumber display that requires providers of astandard telephone service to ensure theircustomers have the option of blocking callingnumber display on both a permanentand call by call basis (ACIF C522:2007Calling Number Display, s 3).[11.1110] Changing providersIf customers want to change their CSP, thenew CSP must ensure that the customer isinformed of timelines for the transfer, possibleinterruption of service, possible incompatibilityof equipment for that service, aswell as full details of the terms, conditionsand pricing of the new service (TCP Code,chapter 7).[11.1120] Special tips aboutthe InternetSpamThe Spam Act 2003 (Cth) prohibits sendingunsolicited commercial electronic messageswith an “Australian link” through, forexample, emails or text messages. See ss 5 – 7for definitions of commercial electroniccommunications, and Australian link, andSch 2 to determine if the message wasunsolicited, or the customer’s consent wasexpressly given or can be inferred. The Act

11 Consumers 407also requires that commercial electronicmessages must contain an “unsubscribefacility” that consumers can use to stopreceiving any further commercial electronicmessages from that sender (Spam Act 2003,s 18).Security – Stay safe onlineThe ACMA website provides a range ofinformation on cyber safety, safe passwords,Internet security, information particularlyfor children and security, and a facility forhandling Internet complaints.Compromised computersThe Internet Industry Association developeda voluntary code, the “icode” on howInternet service providers can detect anddeal with compromised computers. It alsocontains information on steps customersshould take when informed that their computermay be compromised.

408 The Law Handbook The Law Handbook[11.1130] Contact pointsIf you have a hearing or speech impairment and/or you use a TTY, you can ring anynumber through the National Relay Service by phoning 133 677 (local and chargeable calls)or 1800 555 677 (free calls) or 1300 555 727 (Speak and Listen calls). For more information, seewww.relayservice.com.au.Non-English speakers can contact the Translating and Interpreting Service (TIS) on 131 450to use an interpreter over the telephone to ring any number. For more information or to bookan interpreter online see www.tisnational.gov.au.Attorney-General’s Department(NSW)www.justice.nsw.gov.au/Australasian Legal InformationInstitute (AustLII)www.austlii.edu.auAustralian Communications andConsumer Action Networkwww.accan.org.auph: 9288 4000Australian Communications andMedia Authority (ACMA)www.acma.gov.auBroadcasting enquiries: 1800 226667Other enquiries: 1300 850 115“Stay Safe Online” information:www.acma.gov.au/Home/Citizen/Stay%20protected/My%20online%20world/Staying%20safe%20onlineAustralian Competition andConsumer Commissionwww.accc.gov.auph: 9230 9133Infocentre: 1300 302 502Australian Consumer Lawwww.consumerlaw.gov.auAustralian ConsumersAssociation (Choice)www.choice.com.auph: 1800 069 552 or 9577 3399Australian Direct MarketingAssociationwww.adma.com.auph: 9277 5400Australian InformationCommissioner, Office of the (Cth)www.oaic.gov.auph: 1300 363 992Translating and InterpretingService: 131 450Australian Retailers’ Associationwww.retail.org.auph: 1300 368 041Australian Securities andInvestments Commissionwww.asic.gov.auph: 9911 2000infoline: 1300 300 630Builders and ContractorsAdvisory Serviceph: 1300 100 285Communications, Department ofwww.communications.gov.auph: 1800 254 649Communications Alliancewww.commsalliance.com.auph: 9959 9111Do Not Call Register (Cth)www.donotcall.gov.auph: 1300 792 958Energy & Water OmbudsmanNSW (EWON)www.ewon.com.auph: 1800 246 545Interpreter services: 131 450National Relay Service: 133 677Environment and Heritage, Officeof (NSW)www.environment.nsw.gov.auph:131 555 or 9995 5000Financial Ombudsman Servicewww.fos.org.auph: 1300 780 808Financial Rights Legal Centrewww.financialrights.org.auCredit and debt hotline: 1800 007007Telephone interpreting service: 131450Administration: 9212 4216GreenPowerwww.greenpower.gov.auph: 8281 7777Home Building Advocacy Service(HoBAS) – Macquarie LegalCentrewww.macquarielegal.org.au/HoBAS.htmlph: 8833 0911Housing NSW (Family andCommunity Services)www.housing.nsw.gov.auph: 1300 468 746 (24 hours, 7 days)Internet Industry Associationwww.iia.net.auph: 9959 9111Law and Justice Foundation ofNSWwww.lawfoundation.net.auLaw Society Solicitor ReferralServicewww.lawsociety.com.au/community/findingalawyer/solicitorreferralserviceph: 9926 0300 or 1800 422 713(regional areas)Legal Aid NSWwww.legalaid.nsw.gov.auph: 1300 888 529

11 Consumers 409Macquarie Legal Centre’s HomeBuilding Advocacy Service(HoBAS)www.macquarielegal.org.au/HoBAS.htmlph: 8833 0911NSW Civil and AdministrativeTribunal (NCAT)www.ncat.nsw.gov.auph: 1300 006 228NSW Fair Tradingwww.fairtrading.nsw.gov.auph: 133 220 or 9895 0111Aboriginal Enquiry Officer: 1800500 330 (Freecall)Language Assistance: 13 14 50Fair Trading Centres (metropolitan)Blacktown: 9853 0150Hurstville: 8567 0055Liverpool: 8778 4099Parramatta: 9895 0077Penrith: 4702 5300Sydney:13 32 20Fair Trading Centres (regional)Albury: 6043 9300Armidale: 6773 8100Bathurst: 6333 1413Broken Hill: (08) 8088 0100Coffs Harbour: 6653 0700Dubbo: 5804 5000Gosford: 4320 0600Goulburn: 4822 1933Grafton: 6641 0900Lismore: 6627 6500Newcastle: 4925 7000Orange: 6360 6300Port Macquarie: 5525 3400Queanbeyan: 6229 7750Tamworth: 6761 9000Tweed Heads: (07) 5523 7000Wagga Wagga: 6933 9500Wollongong: 4220 5454NSW Public Guardianwww.publicguardian.justice.nsw.gov.auph: 8688 6070 or regional NSW1800 451 510NSW Trade and Investment(Resources and Energy)www.resourcesandenergy.nsw.gov.auph: 1300 736 122 or 8281 7778Parliamentary Counsel’s Officewww.pco.nsw.gov.auph: 9321 3333Public Interest Advocacy Centrewww.piac.asn.auph: 8898 6500Roads and Maritime Services(formerly Roads and TrafficAuthority (RTA))www.rta.nsw.gov.auph: 132 213Standards Australiawww.standards.org.auph: 1800 035 822 or 9237 6000Sustainability, Environment,Water, Population andCommunities (Cth)www.environment.gov.auph: 6274 1111Telecommunications IndustryOmbudsmanwww.tio.com.auph: 1800 062 058Interpreter service: 131 450Tenants’ Union of NSWwww.tenants.org.auph: 1800 251 101Water, Office of (Department ofPrimary Industries, NSW)www.water.nsw.gov.auGeneral enquiries: 8281 7777