Azdajic v Jayasuriya

[2020] ACAT 15

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AZDAJIC V JAYASURIYA (Appeal) [2020] ACAT 15

AA 15/2019 (XD 177/2018)

Catchwords:             APPEAL – civil dispute – building dispute – retaining wall – alleged unfairness in the tribunal proceedings – alleged defect in relation to drainage

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 82

Cases cited:Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275

Mansour v Dangar [2017] ACAT 49

Texts:Dennis Pearce, Administrative Appeals Tribunal (2015, 4^th ed.)

Westlaw Australia, Victorian Administrative Law, online, Victorian Civil and Administrative Tribunal Act 1998 (Annotated)

Appeal Tribunal:      Acting Presidential Member R Orr QC

Date of Orders:  3 March 2020

Date of Reasons for Decision:         3 March 2020

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 15/2019

BETWEEN:

ROBERT AZDAJIC

Appellant

AND:

CHANDRANI JAYASURIYA

Respondent

APPEAL TRIBUNAL:       Acting Presidential Member R Orr QC

DATE:3 March 2020

ORDER

The Tribunal orders that:

1.The appeal is dismissed.

………………………………..

Acting Presidential Member R Orr QC

REASONS FOR DECISION

1.The original applicant and now appellant in these proceedings is Robert Azdajic (original applicant, appellant or Mr Azdajic), a builder. He agreed with Chandrani Jayasuriya (respondent or Ms Jayasuriya) to do some renovations to her backyard. An agreement was entered into in October 2017 and was at least partly in writing (the agreement). The principal work was described in the written contract as “install a retaining wall” at a cost of $5,800. As it turned out the applicant completed other tasks including constructing a ramp and stairs.

2.These complicated proceedings began when Mr Azdajic brought a claim in the tribunal to recover the balance of monies owed to him under the agreement. During the course of these proceedings it seems that Ms Jayasuriya paid the full amount under the agreement. But she also made a counterclaim in relation to the work for about $5,500.

3.In a decision of the tribunal on 24 April 2019 Senior Member A Anforth upheld one part of Ms Jayasuriya’s counterclaim and ordered that Mr Azdajic pay to her $1,540 to remediate the backfill and drainage behind the retaining wall (original decision of the original tribunal). Mr Azdajic now appeals that decision.

Summary of this decision

4.One principal ground of appeal was that the counterclaim proceedings were unfair, in that the matter was resolved by the remedial work undertaken by Mr Azdajic on about 16 June 2018. However, Ms Jayasuriya did not think they had been fully resolved and pursued her crossclaim at a hearing on 12 October 2018 and 15 January 2019, in which Mr Azdajic fully participated. I do not think this was an unfair process which failed to provide procedural fairness to the appellant, or otherwise involved an error of fact or law.

5.Another principal ground of appeal was that the original decision contained an error of fact, namely that the retaining wall did not have appropriate drainage. Mr Azdajic said that it did have appropriate drainage. Ms…