Solarex Australia Pty Ltd, Ali Syed and Mohammad Syed Enforceable Undertaking

ENFORCEABLE UNDERTAKING – 8 of 8 – AUSTRALIAN CONSUMER LAW

CONSUMERAFFAIRSVICTORIA

SECTION218 of the AUSTRALIAN CONSUMER LAW (VICTORIA)

ENFORCEABLE UNDERTAKING

The commitments in this Undertaking are offered to the Director of ConsumerAffairs Victoria by:

SOLAREX AUSTRALIA PTY LTD

(ACN: 149 628 044)

of 25 Regan Street,

ST ALBANS VIC 3021

─and─

ALI SYED

─and─

MOHAMMAD SYED

The Director of Consumer Affairs Victoria

1. The office of the Director of ConsumerAffairsVictoria (“the Director”) is provided for under section107 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (“the ACLFTA”). The Director is responsible for the administration of the ACLFTA, the AustralianConsumerLaw, which has been enacted as a law of Victoria under Part2-2 of the ACLFTA and known as the AustralianConsumerLaw(Victoria) (“theACL(Vic)”), as well as Victoria’s other consumer protection legislation.

2. The Director is the Regulator for the purposes of the ACL(Vic), and pursuant to section 218 of the ACL (Vic), may accept a written undertaking from any person in connection with any matter involving a contravention of the ACL(Vic) in respect of which the Regulator has a power or function.

Solarex Australia Pty Ltd

3. Solarex Australia Pty Ltd (ACN: 149 628 044) (“Solarex”) is an Australian proprietary company limited by shares, which was registered on 2 March 2011. At all relevant times, Solarex’s registered office and principal place of business has been 25 Regan Street, St Albans VIC 3021.

4. Solarex carries on business, in trade or commerce, selling solar panels and systems to consumers. Solarex also arrange for the installation of these goods at consumers’ property.

5. Mr Ali Syed (“Mr A. Syed”) of 25 Regan Street, St Albans, VIC, 3021 has been a director of Solarex since 2 March 2011.

6. Mr Mohammad Syed (“Mr M. Syed”) of 25 Regan Street, St Albans, VIC, 3021 has been a director of Solarex since 2 March 2011 and secretary of Solarex since 23 July 2013.

Legislation

7. Under section 36(4) of the ACL (VIC), a person who, in trade or commerce, accepts payment or other consideration for goods or services must supply all the goods or services:

(a) within the period specified by or on behalf of the person at or before the time the payment or other consideration was accepted; or

(b) if no period is specified at or before that time – within a reasonable time.

8. In addition to all the other remedies available under the ACL (Vic), pursuant to section 224 of the ACL (Vic) a person who is found by a court to have contravened section 36 of the ACL (Vic) is liable to a civil pecuniary penalty, in respect of each contravention, of not more than:

(a) $220,000 in the case of an individual; or

(b) $1.1million in the case of a body corporate.

Meeting between Consumer Affairs Victoria and Solarex

9. On 12 June 2014, ConsumerAffairsVictoria met with Solarex, which was represented at the meeting by Mr A. Syed and Mr M. Syed. The purpose of this meeting was to address a number of complaints received in relation Solarex by Consumer Affairs Victoria, and to provide Solarex with an opportunity to provide an explanation for the alleged conduct. At this meeting, Consumer Affairs Victoria officers raised the following issues:

(a) Wrongly Accepting Payment – A number of consumers had not received the required compliance certificates and associated paperwork had not been sent to energy retailers. Mr A. Syed and Mr M. Syed asserted that the failures to provide the required paperwork were not deliberate, and were the result of a third party subcontractor of Solarex failing to provide the paperwork required to connect each solar system.

(b) Consumer Guarantees - Faulty installation of solar systems to consumers by a third-party subcontractor of Solarex.

(c) Unsolicited Consumer Agreements – Compliance assistance material was provided to ensure that Solarex understand their legal obligations with respect to unsolicited sales.

(d) False and Misleading Representations – Compliance assistance material was provided to ensure that Solarex understand their legal obligations with respect to representations made to consumers.

10. Following this meeting, Mr A. Syed and Mr M. Syed advised that they would endeavour to resolve all outstanding complaints relating to non-supply, delayed supply and issues regarding the provision of relevant compliance certificates and associated paperwork, as well as improve Solarex’s complaint handling processes and dispute resolution engagement with Consumer Affairs Victoria. Mr A. Syed and Mr M. Syed also advised that they intend for Solarex to comply with all applicable legislation, with particular attention to be paid to the issues raised at the meeting.

Contraventions of the ACL (Vic)

11. Consumer Affairs Victoria has received ongoing reports, both before and after meeting with Solarex, regarding non-supply or delayed supply of solar systems by Solarex. Numerous reports have also been received alleging that Solarex have not forwarded on the relevant compliance certificates and associated paperwork to the consumer’s energy retailer, meaning that Solarex have not supplied the systems in accordance with the contract.

12. By engaging in the conduct outlined in paragraph 9, the Director considers that Solarex, Mr A. Syed and Mr M. Syed are in breach of section 36(4) of the ACL (Vic).

Acknowledgment of the contraventions of the ACL (Vic)

13. Solarex and Mr A. Syed and Mr M. Syed acknowledge that Solarex engaged in the conduct outlined in paragraph 9 and in doing so, contravened section 36(4) of the ACL (Vic).

14. Solarex and Mr A. Syed and Mr M. Syed seek to address these acknowledged contraventions by offering this undertaking to the Director pursuant to section 218 of the ACL (Vic).

UNDERTAKING

15. Pursuant to section 218 of the ACL (Vic), Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, undertake to the Director to not do or cause, or permit any other person to do or to cause, whether by itself, its employees, its agents, its officers or otherwise howsoever, the following:

(a) Accept payment for goods or services if the goods or services cannot be supplied within a specified timeframe or within a reasonable time, or if the relevant compliance certificates and associated paperwork cannot be supplied within a specified timeframe or within a reasonable time.

(b) Make any false, misleading or deceptive representations in regards to the timeframe for the supply of goods or services, or in regards to the supply of relevant compliance certificates and associated paperwork as produced or published by Solarex, Mr A. Syed or Mr M. Syed.

16. Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, undertake to the Director, pursuant to section 218 of the ACL (Vic), to do either of the following for all consumers who do not have functional solar systems installed due to non-supply or delayed supply of relevant compliance certificates and associated paperwork to energy retailers:

(a) submit all relevant compliance certificates and associated paperwork to the consumer’s energy retailer; or

(b) provide refunds to affected consumers and uninstall the non-functional systems;

within 90 days of the commencement of this Undertaking.

17. Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, undertake to the Director, pursuant to section 218 of the ACL (Vic), that Solarex will, within 90 days of the commencement of this undertaking, implement a complaints handling system that is in line with the Australian Standard; “Customer satisfaction – Guidelines for complaints handling in organizations” (ISO 10002:2004) (“the compliance program”) to assist with future compliance with the ACL (Vic), and further will maintain the compliance program for the full term of this Undertaking.

18. Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, undertake to the Director, pursuant to section 218 of the ACL (Vic), that all Solarex employees, agents and officers will be trained in the complaints handling program referred to in paragraph 17 once it is implemented and will continue to ensure that its employees, agents and officers are acting in accordance with the compliance program for the full term of this undertaking.

Notice to the Director

19. Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, will notify the Director in writing, within 90 days from the commencement of this Undertaking that:

(a) Solarex has provided remedies to all consumers who do not have functional solar systems installed due to non-supply or delayed supply of relevant compliance certificates and associated paperwork to energy retailers, in accordance with paragraph 16 of this Undertaking; and

(b) Solarex has implemented a compliance program, in accordance with paragraph 17 of this Undertaking.

Extra-Territorial Effect if the Undertakings given under the ACLFTA and the ACL (Vic)

20. The undertakings that are provided for under paragraphs 15 to 18 above, apply to conduct occurring both within and outside the State of Victoria, to the full extent permitted by section 5 of the ACLFTA.

21. Section 5 of the ACLFTA provides that that both the Act and the ACL (Vic) apply to conduct that occurs both within and outside the State of Victoria, where there exists an appropriate nexus to the State. Accordingly, enforcement action may be taken by the Director for conduct occurring in any other State or Territory where there is a sufficient nexus to the State of Victoria.

This section specifies that the ACLFTA and the ACL (Vic) apply, but are not limited to, the following:

(i) the engaging in conduct in the State of Victoria by persons outside the State of Victoria and vice versa;

(ii) the supply of goods or services in the State of Victoria where the contact for the supply of goods or services is made in Victoria; and

(iii) where a contract for the supply of goods or services is made outside the State of Victoria, a supply of goods or services to a person normally resident in the State of Victoria or a body corporate whose principal place of business is in the State of Victoria.

22. In addition to the above, the undertakings that are provided for under paragraphs 15 to18 above, being the undertakings provided under section 218 of the ACL (Vic), apply to conduct occurring both within and outside the State of Victoria, to the full extent permitted by both sections 5 and 12 of the ACLFTA.

23. Pursuant to section 12(1) of the ACLFTA, the ACL (Vic) also extends and applies to:

(i) persons carrying on business within the State of Victoria;

(ii) bodies corporate incorporated or registered under the law of the State of Victoria; and

(iii) persons ordinarily resident in the State of Victoria; or

(iv) persons otherwise connected with the State of Victoria.

24. Pursuant to section 12(2) of the ACLFTA, the ACL (Vic) , in reference to the four groups specified above, extends and applies to conduct and other acts, matters or things, occurring or existing outside or partly outside Victoria (whether within or outside Australia).

Commencement of the Undertaking

25. This Undertaking commences on the day that the Undertaking, having been signed by Mr A. Syed and Mr M. Syed personally and on behalf of Solarex, is accepted and signed by the Director.

26. This Undertaking remains in effect for a period of 5years from the day it comes into effect, unless earlier varied or withdrawn by the Director.

Public Nature of Undertaking

27. Mr A. Syed and Mr M. Syed, personally and on behalf of Solarex, acknowledge that:

(a) pursuant to section 218 of the ACL, the Director will register this Undertaking in the Register of Undertakings on the ConsumerAffairsVictoria website and the Undertaking will be available for public inspection;

(b) the Director and/or the Minister for ConsumerAffairsVictoria may, from time to time, publicly refer to this Undertaking; and

(c) this Undertaking in no way derogates from the rights and remedies available to any other person arising from the alleged conduct.

EXECUTION

Signed by:

Mr Ali Syed

In the presence of: Witness:

(PRINT NAME)

Signed by:

Mr Mohammad Syed

In the presence of: Witness:

(PRINT NAME)

Accepted by the Director of ConsumerAffairsVictoria pursuant to section218 of the ACL (Vic).

Director of Consumer Affairs Victoria

DATED: