Federal Court of Australia

Greenbot Pty Ltd v Clean Energy Regulator [2025] FCA 369

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application filed on 8 November 2024 is dismissed.

2.    The costs of the respondent’s interlocutory application are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

1    In this proceeding, Greenbot Pty Ltd applies for judicial review of decisions made by the Clean Energy Regulator to suspend permanently Greenbot’s registration under the Renewable Energy (Electricity) Act 2000 (Cth) (REE Act), and to give a notice to terminate a “Deed to participate in the SPV Initiative as an installer app provider” by which Greenbot was entitled to participate in a government program known as the Solar Panel Validation Initiative (the SPV Initiative).

2    The proceeding was commenced by an originating application filed on 25 June 2024. On 3 July 2024, Neskovcin J made interlocutory orders by consent to stay the suspension decision and to prohibit the Regulator from acting on the notice of termination of the Deed, pending the determination of the proceeding.

3    The present issue for determination arises from those interlocutory orders made by Neskovcin J, and in particular order 2 which was in the following terms:

2.     The Respondent is prohibited from acting on the Notice of Termination of Deed to participate in the SPV Initiative as an installer app served on the Applicant on 14 June pending the determination of this proceeding.

4    By an interlocutory application filed on 8 November 2024, the Regulator seeks to vacate that order.

5    After the proceeding was commenced and the interlocutory orders were made by consent, the decision to suspend Greenbot’s registration under the REE Act was affirmed by the Regulator on internal review. While Greenbot also seeks judicial review of that decision, it has not sought to stay its operation pending the determination of the proceeding. Accordingly, at least until the outcome of this proceeding or an associated merits review proceeding currently before the Administrative Review Tribunal, Greenbot is no longer a registered person and cannot create renewable energy certificates under the REE Act.

6    Nevertheless, by reason of the order set out in paragraph 3 above, the Deed remains on foot between the parties. As explained below, the Deed enables Greenbot to provide a mobile phone application, referred to as an “Installer App”, which allows users to verify that solar panel systems are eligible for the creation of renewable energy certificates under the scheme established by the REE Act. Greenbot maintains that there is a commercial benefit in the ongoing operation of the Deed, notwithstanding that Greenbot can no longer create renewable certificates on its own account.

7    The Regulator claims that it is entitled to terminate the Deed for convenience on 30 days’ notice, and that Greenbot has not raised a serious issue to be tried in relation to its contention that the Regulator did not lawfully exercise its contractual right to terminate the Deed. In circumstances where the Regulator has found that Greenbot is not a fit and proper person for the purposes of the REE Act and has permanently suspended its registration under that Act, the Regulator submits that the balance of convenience does not favour the continuation of the interlocutory order prohibiting it from acting on the notice of termination of the Deed pending the determination of the proceeding. The Regulator argues that there has been a change in circumstances since the interlocutory order was made that warrants that order being revisited and vacated.

8    Greenbot has challenged the Regulator’s purported termination of the Deed, alleging that the Regulator breached an implied term requiring it to exercise the powers under the Deed in good faith and for proper purposes. In opposing the Regulator’s interlocutory application, Greenbot submits that the Regulator has already consented to an order that prohibits it from acting on the notice of termination until the proceeding is determined, and that there are no exceptional circumstances to justify revisiting or discharging that order. In any event, Greenbot submits that it has a good arguable case to restrain the allegedly wrongful termination of the Deed, and that the balance of convenience continues to favour the current interlocutory order.

9    For the reasons set out below, I have concluded that, while the Court’s power to vary an interlocutory order is enlivened, the balance of convenience does not favour setting aside the order prohibiting the Regulator from acting on the notice to terminate the Deed pending the determination of the proceeding. Accordingly, the Regulator’s interlocutory application is dismissed.

Procedural history

10    In order to explain the context in which this interlocutory application is made by the Regulator, it is necessary to recount briefly some aspects of the procedural history.

11    After commencing the proceeding for judicial review of the suspension decision and relief in relation to the purported termination of the Deed, and having obtained the interlocutory stay orders made by Neskovcin J, Greenbot proceeded to seek internal review of the suspension decision pursuant to s 66 of the REE Act. On 9 September 2024, a delegate of the Regulator confirmed the permanent suspension of Greenbot’s registration under the REE Act (the internal review decision). It was ultimately accepted by the parties that the internal review decision supersedes the interlocutory stay order made by Neskovcin J in relation to the initial suspension decision.

12    Greenbot then filed an interlocutory application seeking leave to amend its originating application in order to challenge the internal review decision, and seeking a stay of its operation pending the determination of the proceeding. The parties exchanged submissions and filed evidence in relation to the stay application. The Regulator did not oppose the grant of leave to amend the originating application, and such leave was granted on 11 October 2024. The stay application was listed for hearing on 18 October 2024, so as to give Greenbot an opportunity to file further material in response to various matters that had been raised by the Regulator in opposition to the stay.

13    In its reply submissions filed on 18 October 2024, Greenbot no longer pressed for a stay of the internal review decision. It may be noted that Greenbot had, in the meantime, commenced a proceeding in the Administrative Appeals Tribunal seeking merits review of the internal review decision. Greenbot’s reply submissions instead focused on a different issue arising from the written submissions filed by the Regulator in opposition to the stay of the internal review decision. In the concluding paragraphs of those submissions, the Regulator had contended that there was “no ongoing need” for order 2 of the orders made by Neskovcin J on 3 July 2024 (by which the Regulator is prohibited from acting on the notice of termination of the Deed relating to Greenbot’s participation in the SPV Initiative), and foreshadowed that this would be addressed by the Regulator at the next hearing before the Court. The Regulator’s submissions stated that it had earlier put Greenbot on notice of the Regulator’s intention to raise this issue. However, the Regulator had not at that stage filed an interlocutory application to vacate the order made by Neskovcin J in relation to its notice of termination of the Deed.

14    When the case management hearing resumed on 18 October 2024, Greenbot maintained that there was still practical significance in its continued participation in the SPV Initiative under the Deed, notwithstanding it was no longer registered to create renewable energy certificates under Part 2 of the REE Act (subject to the outcome of the proceedings for merits review or judicial review of the internal review decision). While no point was taken about the need for a formal interlocutory application to be filed by the Regulator seeking to vacate the order that prohibits it from acting on the notice of termination of the Deed, I did not consider that this question was ready for determination on the materials that were before the Court on 18 October 2024. Accordingly, orders were made for the parties to file further material and submissions in support of or in opposition to the application to vacate order 2 of the orders made by Neskovcin J on 3 July 2024, and the matter was listed for hearing on 6 December 2024.

15    This somewhat complicated procedural background leads to the issue that is now presented for determination, which concerns the interlocutory position that should prevail pending the final hearing and determination of the matter. As things stand, the previous consent order prohibits the Regulator “from acting on the Notice of Termination of Deed to participate in the SPV Initiative as an installer app”. The Regulator’s decision to permanently suspend Greenbot’s registration under the REE Act has taken effect, although it remains subject to review proceedings both in the Administrative Review Tribunal and in this Court. In such circumstances, the Regulator contends that, despite its earlier consent to the orders made by Neskovcin J, there should no longer be any stay on the termination of the Deed, bringing to an end Greenbot’s participation in the SPV Initiative.

The legislative scheme

REE Act

16    The REE Act establishes a scheme for the issue of certificates for the generation of electricity using eligible renewable energy sources. The objects of the scheme are to encourage the additional generation of electricity from renewable sources, to reduce emissions of greenhouse gases in the electricity sector, and to ensure that renewable energy sources are ecologically sustainable: REE Act, s 3.

17    Renewable energy certificates can be sold to “liable entities”, who are required to surrender a specified number of certificates for their wholesale acquisitions of electricity during a year, failing which they are required to pay a renewable energy shortfall charge. Thus, liable entities use renewable energy certificates to avoid or reduce the amount of shortfall charge they are required to pay. They generally acquire such certificates by purchasing them.

18    Part 2 of the REE Act provides for the creation, registration, trading and extinguishing of renewable energy certificates. There are two types of certificates that may be created under the REE Act — “large-scale generation certificates” created in relation to the generation of electricity by accredited power stations; and “small-scale technology certificates” (STCs) created in relation to the installation of solar water heaters and small generation units (such as solar panel systems). The present case is concerned with the operation of the REE Act in respect of STCs, which is commonly referred to as the Small-scale Renewable Energy Scheme.

19    Renewable energy certificates can only be created by persons who are registered under Division 2 of Part 2 of the REE Act. A person may apply to the Regulator to be registered: s 10. The Regulator may refuse the application if it is satisfied that the applicant is not a fit and proper person, having regard to the matters specified in reg 3L of the Renewable Energy (Electricity) Regulations 2001 (Cth) and such other matters (if any) as the Regulator considers relevant: s 11(2), (2A). The Regulator can also suspend the registration of a registered person on specified grounds, including if the Regulator is satisfied that the person is not a fit and proper person, having regard to the matters specified in reg 3L of the Regulations and such other matters (if any) as the Regulator considers relevant: REE Act, s 30A(5), (5A); Regulations, reg 20CL.

20    STCs are created under Subdivision B (solar water heaters) or Subdivision BA (small generation units) of Division 4 of Part 2 of the REE Act. The number of STCs that may be created for a particular installation is worked out in accordance with the Regulations, and generally depends on matters such as the volumetric storage capacity of the heater or the rated power output of the small generation unit: REE Act, ss 22, 23B; see Subdivs 2.3.2 and 2.3.3 of Div 2.3 of Pt 2 of the Regulations. The Regulations provide for the Regulator to establish a register setting out the brands and models of eligible solar water heaters for which STCs may be created, and prescribe the conditions for the creation of STCs in relation to small generation units, including the approval or accreditation of eligible models of inverters and photovoltaic (PV) modules: Regulations, regs 19C, 20AC.

21    In broad terms, the entitlement to create STCs is vested in the owners of solar water heaters and small generation units upon installation: REE Act, ss 23, 23C. However, as certificates can only be created by registered persons, the owners can assign the right to create STCs to another person: REE Act, ss 23(2), 23C(2).

22    In practice, the right to create STCs is often assigned by the owner of a solar water heater or small generation unit to a retailer, installer or third-party agent in exchange for some kind of financial benefit, such as a rebate or discount in relation to installation costs. Certificates must be registered by the Regulator, upon which they may be transferred to any person: REE Act, ss 26, 27. They can be sold or traded by the holder or assignee through a Clearing House established by the Regulator under Part 2A of the REE Act, or on the private market.

SPV Initiative

23    The following details of the SPV Initiative are taken from the recitals to the Deed entered into between Greenbot and the Commonwealth (as represented by the Regulator).

24    The SPV Initiative was established by the Regulator to support the Scheme under the REE Act. It is described in the Deed as a “collaborative effort” between the Regulator and industry that provides an alternative means of verifying that solar panel serial numbers correspond to models on the list of approved modules, “thereby facilitating the early identification of unverifiable Solar Panel Serial Numbers as well as streamlining the processing of STCs”.

25    The recitals to the Deed relevantly state as follows:

G.    The Initiative allows Users of a mobile app (Installer App) to check a Solar Panel’s serial number against a Database of verified manufacturer serial numbers for Solar Panels matching models on the Approved Modules List. The User submits Solar Panel information (Data Package) using the Installer App for checking by a Verification Service.

H.     If the Solar Panel Serial Numbers in the Data Package are verified against a Verification Service Database, the relevant Verification Service issues a digitally signed Verification Response to the Installer App.

I.     Upon receipt of a Verification Response from the Verification Service, the Installer App issues the User with a Signed Data Package containing a digital record of information about the installed Solar Panels together with a Customer Record. The Signed Data Package may be used by a Registered Person to support the processing of STCs as part of the Scheme.

J.     The integrity of the Scheme is crucial to ensuring its effective operation and for maintaining consumer confidence. It is expected that participants in the Initiative, including Installer App Providers, will at all times act in the best interests of the Initiative and the Scheme. Failure to act in the best interests of the Initiative may lead to suspension and/or termination of the Provider's participation in the Initiative.

K.     The CER is entering into standardised deeds with Installer App Providers and to implement the SPV Initiative and to ensure that these providers are subject to the same requirements and responsibilities.

Evidence and submissions on the interlocutory application

26    There has been a considerable volume of affidavit evidence filed in this proceeding. On the present interlocutory application, the Regulator relied on the following affidavits: two affidavits of Samantha Miranda affirmed on 7 October 2024 and 2 December 2024 respectively; an affidavit of Cassie-Lee Lister sworn on 7 October 2024; an affidavit of Guy Pelosi affirmed on 7 October 2024, an affidavit of Mark James Baker affirmed on 7 October 2024, and an affidavit of Mohamad Hamad affirmed on 7 October 2024. Greenbot filed an affidavit of Ali Syed affirmed on 17 October 2024, an affidavit of Omar Niyazi sworn on 17 October 2024, and an affidavit of Ali Syed sworn on 25 November 2024.

27    Before addressing the evidence, it is necessary to set out some background facts addressed in the affidavit of Ali Syed affirmed on 29 June 2024, which was filed in support of Greenbot’s initial application for interlocutory relief in relation to the suspension decision and the termination notice, resulting in the consent orders made by Nesckovin J that are the subject of the current application brought by the Regulator.

28    Greenbot was incorporated on 15 September 2016, and became a registered person under Division 2 of Part 2 of the REE Act with effect from 9 October 2017. Ali Syed is the Chief Executive Officer of Greenbot. The director, secretary and sole shareholder of Greenbot is Mohammad Syed, who also holds the position of “Manager – Environmental Markets” with the “Emerging Energy Solutions Group”. Most of Greenbot’s dealings with the Regulator have been conducted by Mohammad Syed.

29    In addition to carrying on a business involving the creation and trading of STCs on its own account, Greenbot also developed a “mobile installer app and online platform” which it licences to installers and retailers of solar panels and solar hot water systems. The installer app facilitates the online assignment of customers’ rights to create STCs at the point of installation. Thus, as the Regulator stated on 7 March 2024 in its statement of reasons for the proposed suspension decision:

Greenbot has taken upon itself two interconnected roles in the scheme, as a registered person who carries out the business of creating certificates, and as a provider of the Greenbot app which facilitates the transfer of information for the purpose of the creation of certificates.

30    On 14 November 2022, Greenbot and the Commonwealth (as represented by the Regulator) executed the Deed, by which Greenbot agreed to provide and make available to users (i.e. registered solar panel installers accredited by the Clean Energy Council Ltd) an installer app to access the “Verification Service” and to support the aims and objectives of the SPV Initiative and the Scheme. The Verification Service is an electronic database delivered and managed by an approved verification service provider through which information about solar panels and their serial numbers may be submitted for verification against the database in order to confirm their eligibility for the creation of STCs under the REE Act and the Regulations. Pursuant to the Deed, Greenbot entered into an agreement with an approved verification service provider.

31    On 7 March 2024, following several months of correspondence and dealings between the Regulator and Greenbot, the Regulator served on Greenbot a notice of intention to suspend its registration as a registered person under s 30A of the REE Act. The notice stated that the Regulator had formed a preliminary view that Greenbot was not a fit and proper person, based on “maladministration of the Greenbot app that adversely affected the scheme”, “various misrepresentations to the Regulator regarding the functioning of the Greenbot app”, and “improper creation of certificates in contravention of the Act”.

32    The notice contained an attachment setting out a statement of reasons for the proposed suspension decision. For present purposes, it is sufficient to note that the Regulator’s concerns related to the functionality of Greenbot’s installer app and the integrity of certificates created as a result of the assignment of rights to create STCs through Greenbot’s installer app. In particular, the Regulator formed the preliminary view that:

Greenbot, through the use of the Greenbot app, has systematically failed to comply with its obligation under the Act by creating certificates it was not entitled to create. This is because Greenbot has created certificates where the owner of the related solar panel or solar water heater systems has not assigned the right to create certificates to Greenbot. The improper creation of certificates is a criminal offence and also attracts a civil penalty under the Act.

33    Based on that preliminary view, the Regulator had declined to register a number of STCs that had been created by Greenbot until it could be determined that the certificates were eligible for registration. To address the issues arising from the incorrect issue of STCs, Greenbot was permitted to contact affected system owners in order to obtain a proper assignment of the right to create STCs so that it could then “re-create” those certificates for registration by the Regulator.

34    The statement of reasons for the notice of intention to suspend Greenbot’s registration relevantly concluded:

65.     Greenbot’s development and use of the Greenbot app was a voluntary, commercial decision made by Greenbot. The financial benefits of a registered person providing such a service are clear. The failure of the Greenbot app has had a catastrophic impact on the scheme; including a significant adverse financial impact borne by entities within the solar panel industry, as well as a reputational damage to the Commonwealth who administers the scheme. All of these outcomes are a direct result of Greenbot’s conduct as the administrator of the Greenbot app.

66.     Greenbot did not alert the Regulator to the fact of the failure of the Greenbot app. When confronted by the Regulator with the issue with the Greenbot app, Greenbot’s response was disingenuous and self‐serving. Greenbot chose to downplay the extent of the issue and repeatedly gave false assurances that the issue was resolved.

67.     A further consequence of Greenbot’s maladministration of the Greenbot app is that Greenbot created certificates where Greenbot has not been assigned the right to create certificates; thereby creating certificates improperly. The improper creation of certificates is a contravention of the Act and is a matter relevant to whether Greenbot is a fit and proper person under the Act.

35    On 18 April 2024, Greenbot’s legal representatives responded to the Regulator’s notice of intention to suspend Greenbot’s registration, attaching a written submission in response to the matters that had been raised in the Regulator’s notice and statement of reasons. In broad terms, Greenbot submitted that the Regulator’s preliminary conclusions had arisen from “confusion and misunderstandings” about software issues in relation to Greenbot’s installer app which had been the subject of discussions between Greenbot and the Regulator. Greenbot sought to characterise these issues as “largely historical” and submitted that they would not cause further disruption to the industry. Greenbot denied that the occurrence of the software errors established any systemic failure or maladministration on its part.

36    On 11 June 2024, a delegate of the Regulator made the suspension decision under s 30A(5) of the REE Act on the basis that the delegate was satisfied that Greenbot was not a fit and proper person for the purposes of the Act. The delegate stated that her conclusion was informed by Greenbot’s “mismanagement of the Greenbot platform that adversely affected the scheme”, “misrepresentations to the Regulator regarding the functioning of the Greenbot platform”, and “improper creation of certificates in contravention of the Act”.

37    On 14 June 2024, the Regulator served on Greenbot a written notice of termination of the Deed, by which Greenbot was notified that the Regulator would exercise its power to terminate the Deed under cl 11.1.1 with effect from 14 July 2024 (the termination notice). Clause 11.1 of the Deed provides as follows:

11.1.     Termination by either Party

11.1.1.    Either party may terminate this Deed and their participation in the Initiative by giving 30 days’ written notice to the other party. The termination will take effect on the date that is 30 days after the notice is given unless otherwise agreed, in writing, by the parties.

11.1.2.     The Provider agrees that no compensation will be payable to it for termination of the Deed under this clause 11.1.

The termination notice stated that “[a]s a result of the termination of the Deed, Greenbot must stop providing the Greenbot Installer App to new users from the effective date of termination”, and that the Regulator would “no longer accept signed data packages which have been created via the Greenbot Installer App”.

38    The termination notice also stated that, although cl 11.1.1 of the Deed did not require fault, the Regulator considered that reasonable grounds existed to terminate the Deed under cl 11.2.1 of the Deed, which provides:

11.2.     Termination for fault by the Provider

11.2.1.     The CER may terminate this Deed, the provision of the Installer App and the participation of the Provider in the Initiative immediately and without notice where the CER has reasonable grounds to believe:

a.     the Provider has breached a provision under this Deed, including without limitation the mandatory requirements of the Technical Specifications;

b.     the Provider has committed an offence under the REE Act or contravened civil penalty provisions or other relevant law, accreditation or licensing scheme;

c.     the Provider has failed to meet the requirements of the fit and proper person test under 3L of the REE Regulations;

d.     if the Provider is a body corporate or a body politic, and any office holder cannot provide acceptable proof of identity as required under this Deed;

e.     the integrity of the information provided by the Installer App has been comprised;

f.     a Signed Data Package issued using the Installer App or any other use of the Installer App poses a risk to the REC Registry or any CER IT system, including but not limited to data loss, inaccuracy or corruption, performance impacts, cyber security or threats

g.     the Provider has provided false or misleading information to the CER, an Verification Service Provider, Users or any other person in connection with the Scheme or Initiative or the use of its Installer App;

h.     that the Installer App, Data Package, Signed Data Package, Customer Record or Written Statement issued by the Installer App fails to comply with applicable requirements in this Deed or the Technical Specifications;

i.     the Provider has compromised the integrity of the Initiative and or Scheme as a result of its acts or omissions.

However, the Regulator stated that it had elected to exercise its rights under cl 11.1.1 (which requires 30 days’ written notice) so as “to allow for an ordered transition of existing Greenbot Installer App users from the platform”.

39    As discussed above, Greenbot commenced this proceeding by originating application filed on 25 June 2024, which was subsequently amended by leave granted on 18 October 2024 to encompass the internal review decision.

(a)    By Part A of the originating application, Greenbot seeks judicial review of the suspension decision and the internal review decision on the grounds that there was a breach of the rules of natural justice and that each of the decisions was an improper or unreasonable exercise of the power conferred by s 30A of the REE Act.

(b)    By Part B of the originating application, Greenbot seeks injunctive, declaratory and other relief (including specific performance and damages) in respect of the termination notice, on the ground that the Regulator breached an alleged implied term requiring it to exercise its powers under the Deed in good faith, and for the purposes of and consistent with the lawful discharge of its functions and powers under the REE Act. Greenbot alleges that the Regulator breached the implied term by purporting to terminate the Deed as a consequence of the suspension decision, and by declining to undertake to withdraw the termination notice in the event that a stay of the suspension decision was ordered by the Court. Greenbot also alleges that:

By reason of those breaches, Greenbot has suffered and will continue to suffer loss or damage, including but not limited to loss of profits caused by the impact of the SPV termination notice on the functionality and commercial appeal of the Greenbot installer app, and from the consequent impact on Greenbot’s ability to acquire STCs through the operation of the app.

40    On 9 September 2024, the Regulator made the internal review decision, by which the original decision to suspend Greenbot’s registration under s 30A(5) of the REE Act was confirmed. The delegate found that the technical errors in the Greenbot platform in mid to late 2023 were serious, with significant adverse effects on the Scheme and its stakeholders “not least due to the improper creation of numerous certificates”. The delegate also made adverse findings against Greenbot and Mohammad Syed in relation to manner in which they had addressed those issues in their dealings with the Regulator. The delegate formed the view that the “persistent poor behaviour” of Greenbot over a sustained period of time meant that it was not a fit and proper person under the REE Act.

41    On 23 September 2024, the Regulator filed a response to Part B of the originating application, in which it denies that there is an implied term in the Deed as alleged by Greenbot and, in the alternative, denies that it breached any such implied term by terminating the Deed or by declining to undertake to withdraw the termination notice in the event that the suspension decision was stayed.

42    In his affidavit affirmed on 29 June 2024, Mr Syed deposed that the termination of the Deed would “render Greenbot’s installer app ineffective, as the [Regulator] will prohibit verification service providers from verifying data supplied through the Greenbot installer app”, and that “the installer app will become commercially useless, and Greenbot will be deprived of its licensing revenue with respect to the installer app”. In this regard, Mr Syed deposes that, as at 29 June 2024, Greenbot had licensed its installer app and retailer platform to approximately 6,500 active solar installers and approximately 5,900 active solar retailers.

43    The installer app was made available to installers free of charge, in circumstances where Greenbot obtained a commercial benefit from the use of the installer app to assign owners’ rights to create STCs to Greenbot. As Greenbot is no longer entitled to create STCs on its own account, I assume that this commercial benefit will no longer be enjoyed by Greenbot unless and until the suspension decision is set aside.

44    Nevertheless, it appears that Greenbot is still able to derive revenue from its installer app notwithstanding that it is no longer registered under the REE Act. Mr Syed stated in his affidavit affirmed on 29 June 2024:

29.     In addition, Greenbot licences its retailer platform to retailers for a fee. The Greenbot retailer platform enables solar panel and solar hot water retailers to manage the assignment and creation of STCs arising from installations of their products. The retailer platform is designed to interoperate seamlessly with the Greenbot installer app. If the Greenbot installer app is effectively made inoperative by the SPV termination notice, then it would remain possible, but commercially impractical, for retailers to continue to use the Greenbot retailer platform. That is because the turnaround time for creation and registration of STCs assigned using the Greenbot installer app is around 1-2 days, whereas if the assignment, creation and registration are processed manually, the turnaround time may be up to 6 weeks.

…

31.     Together, the suspension of Greenbot as a registered person under the REE Act, and the termination of the SPV Deed for the Greenbot installer app will be commercially catastrophic for Greenbot’s business. I expect that Greenbot will lose substantially all of its current revenue, if its business continues to be viable at all.

32.     As at 11 June 2024, there were approximately 50 staff working in the Greenbot business. If the business is to remain viable, it will at a minimum require a complete restructure of its staff and resources, likely requiring the loss of a very substantial number of existing roles.

45    In his affidavit affirmed on 30 September 2024, Mr Syed gave further evidence about the damage to Greenbot’s business that he says was caused by the suspension decision and the termination notice, prior to the stay orders made by Neskovcin J on 3 July 2024. This affidavit was filed in support of Greenbot’s application for an extension of the stay of the internal review decision, which was not ultimately pressed by Greenbot. It is therefore of little if any relevance to the present application.

46    Mr Syed’s affidavit sworn on 25 November 2024 is in response to the Regulator’s interlocutory application to vacate order 2 of the orders made on 3 July 2024. Mr Syed referred to the paragraphs of his previous affidavit in which he “described the consequences that the [Regulator’s] termination of the SPV Deed would have on Greenbot’s offering of the installer app and retailer platform”. Mr Syed relevantly states:

Since the initial suspension, in response to the loss of revenue through creating and trading STCs in its own name, Greenbot has intensified its efforts to market the installer app and retailer platform to other registered persons, who are unrelated to Greenbot. This part of Greenbot’s business is referred to “software as a service” (SaaS). At the same time, Greenbot has also increased its charges for use of Greenbot’s SaaS offering.

47    Mr Syed deposes that, as a result, Greenbot’s monthly revenues from “software as a service” have increased significantly since June 2024. He states that, over that period, the proportion of users of Greenbot’s installer app who are unrelated to Greenbot — that is, registered persons who are not related entities to Greenbot — has grown.

48    The evidence on which the Regulator relied in support of its interlocutory application can be summarised as follows:

(a)    Affidavit of Samantha Miranda affirmed on 7 October 2024: Ms Miranda is employed by the Regulator as an Assistant Manager in the Compliance Branch. Among other things, Ms Miranda addresses the relationship between Greenbot and Emerging Energy Solutions Group Pty Ltd (in liquidation), the number of STCs created by Greenbot in each month between January and September 2024, and records of complaints made to the Regulator by members of the public about the conduct of Greenbot, Emerging Energy and NetZero Environmental Group Pty Ltd. Ms Miranda also refers to emails received by the Regulator from retailers or installers concerning money that has not been paid to them by Greenbot or associated companies in respect of the creation of STCs.

(b)    Affidavit of Samantha Miranda affirmed on 2 December 2024: Ms Miranda responds to matters raised in Mr Syed’s affidavit of 25 November 2024 in relation to the creation of STCs by entities that are unrelated to Greenbot using its installer app. Ms Miranda states that, since April 2024, there has in fact been a decrease in the number of STC applications submitted by entities unrelated to Greenbot, both in nominal and percentage terms, which has been accompanied by a commensurate increase in STC applications by another related entity, Hello Solar Pty Ltd. Ms Miranda also states that only three agents have started using Greenbot’s installer app from July 2024 onwards.

(c)    Affidavit of Cassie-Lee Lister sworn on 7 October 2024: Ms Lister works for a business involved in the installation of solar PV systems. Between December 2017 and March 2024, she used Greenbot’s installer app and web platform to submit applications for STCs. Ms Lister states that, since around October 2023, she has experienced issues and delays in payments for STCs from entities related to Greenbot, and is still owed money for the assignment of STCs to one such entity, NetZero. The business for which she works has stopped using NetZero and no longer has access to the Greenbot web platform.

(d)    Affidavit of Mark James Baker affirmed on 7 October 2024: Mr Baker is the director of a business involving the installation of solar PV systems, solar water heaters and energy storage systems. He has submitted applications for STCs to Emerging Energy, a related entity of Greenbot, since 2016, initially by email and then using Greenbot’s installer app and web platform. Mr Baker states that he has experienced issues and delays in payments from Emerging Energy from around August 2023. He has not submitted any jobs using Greenbot’s platform since September 2023, and is still owed money by Emerging Energy for STCs in respect of installations completed between August and October 2023. Mr Baker’s access to the Greenbot platform was removed in around September 2024.

(e)    Affidavit of Guy Pelosi affirmed on 7 October 2024: Mr Pelosi is an electrician who conducts a business of solar PV installations and maintenance. He has submitted applications for STCs to Greenbot and related entities using Greenbot’s installer app and web platform. Mr Pelosi gives evidence of delays in payments for STCs from Greenbot since around September 2023, and states that he is still owed money for the assignment of STCs to Greenbot for installations completed in December 2023. Mr Pelosi’s access to the Greenbot web platform was removed sometime after July 2024.

(f)    Affidavit of Mohamad Hamad affirmed on 7 October 2024: Mr Hamad is an electrician who conducts a business involving solar PV systems maintenance and inspections, with the occasional installation of solar PV systems. He last submitted an application for STCs using Greenbot’s web platform in June 2024 for an installation that was completed in December 2023. Mr Hamad stated that this application was submitted to NetZero. He stated that when he subsequently viewed the audit log for the STC application, it showed that the handwritten “Certificate of Compliance – Electrical Work” (CCEW) that he had uploaded had been removed and replaced with a new digital copy that appeared to display his signature, even though he had not signed or placed his signature on that document. Mr Hamad stated that he was still owed payment for the installation in December 2023.

49    The affidavit of Mr Syed affirmed on 17 October 2024 addressed the complaints and other matters regarding outstanding payments that were raised in the affidavits of Ms Miranda, Mr Baker and Mr Pelosi. Mr Syed stated that, where those complaints relate to STCs created by Greenbot, the reason for the non-payment was “because STCs for a previous installation for that installer or retailer were failed by the [Regulator], and the installer or retailer has not provided Greenbot with the documentation or information necessary to enable Greenbot to re-create the STCs”.

50    In response to the matters raised in Mr Hamad’s affidavit concerning the audit log and the online copy of the CCEW, Greenbot filed an affidavit of Omar Niyazi, a compliance manager for NetZero, sworn on 17 October 2024. Mr Niyazi relevantly explains that he added the online CCEW after Mr Hamad had uploaded additional information about the installation (an updated customer phone number and the national metering identification (or “NMI”) number), which was necessary to enable the STC to be created. Mr Nayazi also stated that an installer’s access to the Greenbot installer app would be automatically suspended after they failed to use the web platform for 60 days, but that such access could be reinstated on request.

The parties’ submissions

51    The Regulator submitted that r 39.05 of the Federal Court Rules 2011 (Cth) confers power on the Court to vary a judgment or order, and that such a power is more readily exercisable where the order is interlocutory, referring to Re Trust Company (Nominees) Ltd (No 4) [2016] FCA 1240 at [28]–[33] (Beach J). The Regulator submitted that it may be appropriate to vary an interlocutory order in circumstances where “new facts come into existence or are discovered which render its enforcement unjust” (Trust Company at [29]) and that the overriding principle is what the interests of justice require in the particular circumstances of the case (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J)).

52    The Regulator submitted that the prevailing circumstances in July 2024, when the Regulator consented to the interlocutory orders made by Neskovcin J, had changed in significant respects. In particular, the orders had been made in the context of an urgent application in circumstances where it was contemplated that the application for judicial review of the suspension decision would be heard together with the claim in relation to the termination of the Deed. However, the suspension decision has since been overtaken by the internal review decision. The order staying the suspension decision has no ongoing effect, and Greenbot no longer seeks a stay of the permanent suspension of its registration under the REE Act.

53    The Regulator submitted that the claims in Part B of the originating application have “negligible” prospects of success, on the bases that: (i) an obligation to act in good faith could not be implied and would be inconsistent with and excluded by the express terms of the Deed; (ii) the Regulator had not breached any implied duty to act in good faith; and (iii) the termination of the Deed was justified in any event.

54    Finally, the Regulator submitted that the balance of convenience did not favour the maintenance of the interlocutory injunction.

(a)    The Regulator argued that a significant factor in its conclusion that Greenbot is not a fit and proper person under the REE Act arose from its “mismanagement” of the Greenbot installer app and retailer platform. The recitals to the Deed state that it is expected that the providers of installer apps “will at all times act in the best interests of the Initiative and the Scheme”, and that failure to act in the best interests of the SPV Initiative may lead to suspension or termination of the provider’s participation in the SPV Initiative. By cl 3.1.1(b) of the Deed, Greenbot warrants and represents that it is a fit and proper person in accordance with reg 3L of the Regulations and, by cl 3.3.11, “acknowledges that it is responsible for ensuring that use of the Installer App does not compromise the integrity of the Initiative”. The Regulator submitted that its concerns about Greenbot’s mismanagement of the installer app and web platform are not confined to the ability to create STCs, but bear directly on the Regulator’s confidence in Greenbot’s participation in the SPV Initiative pursuant to the Deed, rendering it “impracticable and undesirable for the Deed to remain in effect”.

(b)    The Regulator also contended that the evidence from Ms Miranda and from users of the Greenbot platform gave rise to “serious and mounting concerns about [Greenbot’s] participation in the Scheme, and the capacity of the Regulator to protect the Scheme and its users”.

(c)    The Regulator submitted that “the fact that a stay is in place is not a matter to be taken for granted”, and that “[c]onfidence in the SPV Initiative and the integrity of apps provided pursuant to that initiative is obviously essential to the Scheme, to confidence in the Scheme, and to confidence in the Regulator itself”.

55    Greenbot submitted that the Regulator is required to demonstrate exceptional circumstances to justify discharging the interlocutory injunction, referring to Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] (Gordon J) and Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652; 152 IR 352 at [4]–[5] (Young J). Greenbot submitted that the injunction was expressed to continue until the determination of the proceeding, and that the prohibition against acting on the termination notice was not ancillary to or contingent upon the stay of the suspension decision. In Greenbot’s submission, it could not be suggested that the Regulator had been unable properly to consider the orders to which it consented, and the Court should not give the Regulator an opportunity to revisit its previous forensic decision not to contest the interlocutory injunction.

56    Greenbot submitted that it has a good arguable case that the Deed had been wrongfully terminated, and that this was implicitly recognised by the Regulator when it consented to the interlocutory injunction. Greenbot argued that the discontinuance of the stay of the suspension decision did not alter the balance of convenience, and that the Regulator’s submissions “wrongly conflate the creation of STCs under the statutory STC Scheme with [Greenbot’s] provision of the installer app under the contractually-regulated SPV Initiative”. Greenbot pointed to evidence that the software errors and issues with its installer app had been addressed, and that it was continuing to grow its “software as a service” business by offering the installer app for use by unrelated third parties. Further, Greenbot submitted that most of the complaints on which the Regulator relied were related to the creation of STCs by Greenbot or related entities, as opposed to the operation of Greenbot’s installer app or web platform.

Consideration

The power to set aside an interlocutory order

57    Rule 39.05(c) of the Rules provides that the Court may vary or set aside an order if it is interlocutory. The power arises even where such an order was “made by consent and pursuant to an agreement between the parties”: see Trust Company at [27] (Beach J).

58    The principles governing the exercise of the power to vary or set aside an interlocutory order have been considered in numerous cases. It goes without saying that every case will depend on its particular circumstances, including the nature of the interlocutory order in question and the circumstances in which it was made.

59    Some interlocutory orders are expressly made “until further order”. Even where not so expressed, including where the order is made “pending the determination of the proceeding”, it remains subject to the Court’s power to vary or set aside an interlocutory order if and when warranted by the circumstances.

60    In my view, the power to vary or set aside an interlocutory order under r 39.05(c) is not conditioned by any universal requirement or preclusive rule that the applicant must establish special or exceptional circumstances before the power can be exercised. It is nevertheless relevant to have regard to the circumstances in which the previous interlocutory order was made. If the order resulted from the determination of a contested application, the interests of finality in litigation might require a party who wishes to reopen that outcome to point to a material change in circumstances or the discovery of new material which renders the continued operation of the order unjust or inappropriate. If the order was made by consent, it may be relevant to consider whether the order reflects an underlying agreement or concession regarding the position that should prevail until the final hearing or determination of the proceeding, as opposed to an interim position until further order (for example, in order to avoid or defer contesting an interlocutory application). If the consent order was intended to establish the position until the determination of the proceeding, have the circumstances changed in a way that warrants that agreed position being revisited?

61    As has been recognised in the authorities, the overriding principle is that the Court should do what is required by the interests of justice in the particular circumstances of the case: see Brimaud at 46 (McLelland J); see also, e.g., Liu v The Age Co Ltd (2016) 92 NSWLR 679 at [13] (Beazley P), [199] (McColl JA), [292] (Ward JA).

62    The applicable principles were conveniently summarised in Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 at [26] (Jagot J):

The question whether the interlocutory orders should now be varied in light of the true factual position has to be determined by reference to the relevant principles. Those principles were not in dispute.

•    A court has jurisdiction to vary or set aside any interlocutory order but the re-litigation of issues already decided, even on an interlocutory basis, is undesirable having regard to the need for finality (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).

•    The “overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case” (Brimaud at 46).

•    The interests of justice should be assessed having regard to the nature of the interlocutory order in question. Interlocutory orders that are merely procedural or made by consent without any contest are different from substantive orders made after a contested hearing and intended to operate until the final hearing. In the latter case the general rule is that there must be a material change in circumstances or the discovery of new material which could not reasonably have been put before the court on the earlier application (Brimaud at 46).

•    There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

… one or more of the following factors has occurred or is satisfied:

(a)    there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made …;

(b)    there has been a material change in the circumstances since those orders were made;

(c)    there are exceptional circumstances which warrant re-consideration of the matter…; and

(d)    as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter. …

63    The particular concerns regarding re-litigation that were identified by McLelland J in Brimaud arose in the context of “an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings”, in contrast to an interlocutory order of a “merely procedural nature” or an injunction or undertaking “made or given by agreement and without contest ‘until further order’”: Brimaud at 46. It was only in the former case that McLelland J considered that “the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application”: Brimaud at 46; see also Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 at [11]–[13] (Hely J); Cantarella Bros Pty Ltd v Lavazza Australia Pty Ltd (No 2) [2021] FCA 894 at [30] (Yates J). Thus, repeated interlocutory applications which have been previously determined can potentially engage the principles of abuse of process (see e.g. Food Channel Network Pty Ltd v Television Food Network, GP [2010] FCA 372 at [16], [21] (Jagot J)) and, more generally, require consideration of the overarching purpose of the civil practice and procedure rules in s 37M(1) of the Federal Court of Australia Act 1976 (Cth).

64    In some cases, an interlocutory order made by consent might give rise to analogous considerations, at least in circumstances where the order “was made in contemplation that it would preserve the position until the final disposition of the hearing of the action in which it was made”, such that “[i]n that sense, it established the status quo for the parties to the litigation pending the trial”: CIP Group Pty Ltd v So (No 5) [2024] FCA 1373 at [16] (Derrington J). On the other hand, such considerations will be less apposite where an interlocutory order is procedural in nature or where it was otherwise contemplated that subsequent variations to the order might become necessary.

65    In so far as Greenbot relied on cases such as ActiveSuper at [6] (Gordon J) and Paras at [4] (Young J) in support of its submission that the power to vary or set aside an interlocutory order under r 39.05 should ordinarily be exercised only in exceptional circumstances, I consider that those cases were addressing situations in which interlocutory orders were made following a contested hearing and were intended to govern the position between the parties until the trial and determination of the proceeding. Accordingly, I do not accept that the authorities support any universal rule requiring exceptional circumstances to be shown before an interlocutory order may be set aside or varied.

66    In the present case, the order made by Neskovcin J on 3 July 2024 prohibits the Regulator from acting on the notice of termination of the Deed “pending the determination of this proceeding”. The order does not itself contemplate or envisage any further interlocutory application or order, and does not appear to have been made on an interim basis. Nevertheless, the order was made by consent between the parties, rather than as the result of a contested hearing. Further, at the time that the interlocutory orders were made, the “proceeding” involved an application for judicial review of the initial suspension decision made by a delegate of the Regulator on 11 June 2024 and for relief in relation to the purported termination of the Deed.

67    It might be possible to regard the Regulator’s consent to the interlocutory order prohibiting reliance on the termination of the Deed as having been connected to the stay of the suspension decision. Thus, in circumstances where Greenbot would continue to be a registered person under the REE Act pending the determination of its challenge to the validity of the suspension decision, it was agreed that Greenbot should also be able to continue its provision of the installer app pursuant to the Deed. Even assuming that the SPV Initiative is separate from participation in the Scheme, in that a person does not need to be a registered person under the REE Act in order to provide an installer app pursuant to the SPV Initiative, it does not necessarily follow that the interlocutory injunction restraining the termination of the Deed was completely independent of the stay of the suspension decision.

68    In any event, since the orders were made by Neskovcin J, the initial suspension decision has been superseded by the internal review decision affirming the permanent suspension of Greenbot’s registration under the REE Act, and Greenbot has sought and obtained leave to amend its originating application to seek judicial review of the internal review decision. There has therefore been a change in the nature or scope of the proceeding pending the determination of which the consent orders were made.

69    Further, as Greenbot did not ultimately pursue an application for a stay of the internal review decision pending the determination of the amended originating application, the suspension has taken effect and Greenbot is no longer a registered person under the REE Act. To the extent that there was any link between the interlocutory orders made in relation to the suspension decision and the termination of the Deed respectively, that connection has been broken.

70    I therefore consider there has been a sufficient change in the circumstances that prevailed at the time the consent orders were made by Neskovcin J as to warrant an application now being made by the Regulator to vary or set aside the order prohibiting reliance on the termination of the Deed. That does not itself dictate a conclusion that it in the interests of justice to set aside that order. Rather, it requires the Court to reconsider whether the order should be continued until the determination of the proceeding, having regard to matters such as whether there is a serious issue to be tried and the balance of convenience.

Serious issue to be tried

71    As to whether Part B of the originating application raises a serious issue to be tried whether, by purporting to terminate the Deed, the Regulator contravened an implied term requiring it to exercise powers under the Deed in good faith and for lawful purposes, Greenbot relies on authorities such as Hughes Aircraft Systems International v Airservices Australia (No 3) (1997) 76 FCR 151 at 196–197 (Finn J) and GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at [753] (Finn J).

72    In Kellogg Brown & Root Pty Ltd v Australian Aerospace Ltd [2007] VSC 200 at [49] (Hansen J), it was conceded that there were serious questions to be tried as to whether a term of good faith and fair dealing was implied in a subcontract for work to be performed in connection with the supply of helicopters to the Commonwealth Government, and whether a notice of termination of that subcontract for convenience was in breach of any such implied term. Nevertheless, after referring to some of the authorities, Hansen J accepted that such a concession was “understandable” and that the case for the implied term and its breach was “well arguable”: Kellogg Brown at [61].

73    The Regulator denies that power to terminate for convenience under cl 11.1 of the Deed is subject to any implied requirement of good faith or fair dealing, and further denies that it acted in contravention of any such implied term. The Regulator submitted that “[t]he authorities do not support the proposition that an implied term to act in good faith is one of universal application”, referring to Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at [40] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), [156] (Callinan J) and Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [42] (French CJ, Bell and Keane JJ), [107] (Kiefel J), and that the Deed did not belong to any particular class of contract into which such a term might be implied by law. Further, the Regulator submitted that the implied term for which Greenbot contends would contradict the express terms of cl 11.1 of the Deed, which allows termination for convenience and without fault on 30 days’ notice, and thereby excludes any obligation of good faith. Alternatively, the Regulator submitted that the alleged invalidity of the suspension decision was not itself sufficient to amount to a breach of any implied duty to act in good faith, and that there was no suggestion that the Regulator had acted “dishonestly or exploitatively” or out of self-interest.

74    The passages from Royal Botanic Gardens and Barker on which the Regulator relies do not resolve whether or not there is any general obligation to act in good faith in the performance of contracts, including in the exercise of contractual powers and discretions. Such questions remain open, as does the question whether an obligation of good faith can be implied into the particular contract embodied in the Deed. For the purposes of the present interlocutory application, I am prepared to accept that there is a serious issue to be tried as to whether cl 11 of the Deed is subject to an implied obligation requiring the powers to terminate the Deed to be exercised in good faith and consistently with the lawful discharge of the Regulator’s functions and powers under the REE Act.

75    The principal basis on which Greenbot alleges that the Regulator breached an implied term of good faith is that that the power to terminate the Deed was purportedly exercised by the Regulator as a consequence of the suspension decision, and that the Regulator declined to withdraw the notice of termination in the event of a stay of the suspension decision: see the Amended Originating Application, Part B, paras 13–15. Although the suspension of Greenbot’s registration is no longer stayed, Greenbot essentially alleges that the “unlawful purported exercise” by the Regulator of the power to suspend its registration amounted to a breach of the implied term requiring good faith in the exercise of the power to terminate the Deed: Part B, paras 15, 17. Greenbot also appears to rely on matters immediately preceding the service of the termination notice by the Regulator, by which Greenbot’s verification service provider had given notice that it was terminating its agreement with Greenbot: Part B, paras 11–12.

76    In its Response to Part B, the Regulator maintains that the termination of the Deed was a valid exercise of the power to terminate for convenience under cl 11.1.1. The Regulator says that the termination was not “consequent upon” the suspension decision and that, although each was surrounded by the “same factual circumstances”, they are “two distinct issues that must each be considered separately”: Response, para 5. The Regulator submits that cl 11.1 permits either party to terminate the Deed for convenience on 30 days’ notice, and further that there was justification to terminate the Deed “immediately and without notice” under cl 11.2.1 based on its belief on reasonable grounds that Greenbot was not a fit and proper person pursuant to reg 3L of the Regulations.

77    While issue has been joined between the parties on the question whether there was a breach by the Regulator of any implied term of good faith, I consider that there is a serious issue to be tried concerning the lawfulness of the Regulator’s exercise of the power conferred by cl 11.1.1 to terminate the Deed. I refrain from expressing any views about the strength of that case, which will ultimately turn on the evidence and submissions at trial.

The balance of convenience

78    Accordingly, the Regulator’s application to vacate the interlocutory injunction restraining it from acting on the termination of the Deed ultimately turns on whether the balance of convenience favours the continuation of that injunction.

79    On the one hand, the suspension of Greenbot’s registration under the REE Act arose from the Regulator’s concerns about the “mismanagement” by Greenbot of its installer app and web platform, which led to irregularities in the creation of STCs through the installer app. This appears to have resulted in delays and inconvenience to owners, retailers and installers, which in turn has implications for the integrity of the Scheme and public confidence in its proper operation. Thus, while Greenbot’s participation in the SPV Initiative is distinct from its registration and ability to create certificates under the REE Act, there is a connection between these two matters. The Regulator’s finding that Greenbot is not a fit and proper person for the purposes of the REE Act has obvious implications for its participation in the SPV Initiative pursuant to the Deed.

80    On the other hand, Greenbot submits that the problems with its installer app were the result of software errors that have since been rectified, and were concerned with the creation of STCs by Greenbot or its associated entities. Greenbot contends that there is no evidence of ongoing problems with the installer app, particularly in relation to the creation of STCs by unrelated third parties. Similarly, Greenbot argues that the evidence adduced by the Regulator about outstanding amounts owed to installers arise from the past creation of STCs by Greenbot and associated entities, and do not relate to the operation of the installer app since Greenbot’s suspension and the expiry of the stay. Greenbot relied on the affidavit of Mr Niyazi to explain the issues raised in Mr Hamad’s affidavit regarding changes in the digital CCEW that was uploaded to the Greenbot platform in relation to one particular installation, and to explain the reasons why certain installers were unable to access the Greenbot platform as a routine security measure resulting from their failure to use that platform for more than 60 days. Accordingly, Greenbot submits that the Regulator has not demonstrated any real concern about the continued operation of the installer app or web platform.

81    In its originating application, Greenbot alleges that the licensing of its installer app constitutes a substantial part of its business, and that the termination of the Deed has caused and will continue to cause loss and damage, including a “loss of profits caused by the impact of the SPV termination notice on the functionality and commercial appeal of the Greenbot installer app, and from the consequent impact on Greenbot’s ability to acquire STCs through the operation of the app”: Part B, paras 9, 16. In response to the Regulator’s interlocutory application, Greenbot relied on the evidence of Mr Syed regarding its revenues from licensing the installer app to retailers of solar panel and solar hot water systems, and the recent growth in that aspect of Greenbot’s business. I note that the latter was disputed by the Regulator, based on the evidence of Ms Miranda that most of the increase in the use of Greenbot’s installer app was attributable to STC applications from a company (Hello Solar) with whom it was suggested Greenbot had a relationship. However, the evidence of any relationship or association between the two companies was indirect at best, based on the fact that Hello Solar leases business premises from several companies that have a director in common with Greenbot.

82    Ultimately, there is unrebutted evidence of Mr Syed that Greenbot derives revenue from the installer app, independently of its registration under the REE Act, and that such revenue depends on Greenbot’s continued participation in the SPV Initiative pursuant to the Deed. I have had regard to the Regulator’s legitimate concerns about public confidence in the integrity of the Scheme in the light of its findings that Greenbot is not a fit and proper person for the purposes of the REE Act. However, there is no evidence that Greenbot’s continued participation in the SPV Initiative pending the determination of its challenge to the suspension decision and the termination of the Deed will lead to any apprehended loss, harm or other prejudice to industry participants or members of the public. Greenbot is not currently a registered person and remains unable to create STCs under the REE Act. Further, Greenbot has given the usual undertakings to pay compensation to any persons affected by the operation of the interlocutory injunction.

83    In the circumstances, I am satisfied that the balance of convenience is in favour of the continuation of the interlocutory injunction prohibiting the Regulator from acting on the termination notice pending the determination of the proceeding.

Conclusion

84    The interlocutory application filed by the Regulator on 8 November 2024 is dismissed. I will reserve the costs of the application.

Associate:

Dated:    17 April 2025