Azdajic v Jayasuriya
[2020] ACAT 15
•3 March 2020
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, 4th 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 Jayasuriya provided an independent building report to support her claim. Whilst there was some evidence that the drainage was completed, the original tribunal accepted and preferred the evidence of the independent building report. I do not think this was an error of law or fact.
6.I agree that this was and remains a harsh outcome for Mr Azdajic. As the original tribunal found Mr Azdajic did significant further work for Ms Jayasuriya at no cost. He also made significant efforts to remediate the work. But these factors do not of themselves give rise to an error of law or fact in the original tribunal’s decision. The appeal is therefore dismissed and the original decision confirmed.
Proceedings
7.Mr Azdajic lodged a civil dispute application on 12 February 2018. It stated that he had been contracted to build a retaining wall; he had invoiced the respondent for the amount of $5,800; but she had only paid $3,800, leaving about $2,000 outstanding.
8.The respondent filed a response on 13 March 2018 in which she admitted that she had failed to make the final payment, but alleged incomplete or defective items in the work.
9.The proceedings progressed somewhat erratically; the original decision summarises this; the key events are as follows. The matter was listed for conciliation but this was unsuccessful and orders were made for the filing of evidence.[1]
[1] Original decision at [16]
10.A hearing of the matter took place on 25 May 2018. Both parties appeared in person and Ms Griggs, a neighbour of Ms Jayasuriya, attended with her as a support person. The following orders were made at the end of that hearing:
1. The applicant will attend the respondent’s property at 10.00am on Monday 4 June 2018 to review the defect list and undertake any works that may be completed on the day.
2. Ms Griggs will be in attendance and is authorised to discuss and approve, on the respondent’s behalf, the works needed to be undertaken.
3. The Tribunal notes that: the applicant and Ms Griggs may arrange an additional meeting on another occasion prior to the meeting of Order 2.
4. The matter is relisted for directions on Tuesday 12 June 2018 at 9.00am.
5. The Tribunal notes that if the matter is resolved prior to 12 June 2018 the applicant will file a Notice of Discontinuance.[2]
[2] Original decision at [21]
11.It appears a meeting took place but that this did not resolve the matter. No notice of discontinuance was filed. Rather, the matter again came before the tribunal on 12 June 2018, with a further hearing on 15 June 2018. The transcript of that hearing clearly reveals that there was no settlement of the matter. What took place at the hearing is set out in the transcript and summarised in the original decision at [24]-[35].
12.At the end of that hearing, the following orders were made:
1. The matter is adjourned to 10am on 24 August 2018 for mention.
2. The applicant is to meet with Mr Griggs at 7.30am on Saturday 16 June 2018 to agree to the scope of the rectification and if possible to do the work then.
3. The parties agree that the applicant will carry out the agreed scope of rectifications to the satisfaction of Mr Griggs after which the respondent will pay the applicant outstanding balance within seven days of Mr Griggs’ certification to the respondent.
4. The applicant is to provide respondent with an invoice showing labour and materials.
5. If this agreement miscarries, either party may apply to the Registrar to relist before 15 August 2018.
13.It appears that the meeting took place. The applicant undertook some work, and Mr Griggs wrote that the works were completed in accordance with his instructions, as required by the tribunal, and that in his opinion the wall and steps were constructed to an acceptable standard.[3] The respondent then paid the moneys due.
[3] Original decision at [41]
14.But on 14 August 2018 the respondent filed an interim application seeking orders for the refund of money which she had paid. She also sought to have rectification at the applicant’s cost.[4]
[4] At [36]
15.At a hearing on 24 August 2018 the tribunal set aside the orders of 15 June 2018 on the basis that these were made without the respondent’s consent and listed the matter for hearing. On 2 October 2018 the respondent filed her counterclaim in the sum of $5,500. A statement in support of the counterclaim by the respondent indicated that some remedial works were carried out on 16 June, these were to the satisfaction of Mr Griggs, and the respondent then paid the applicant. But the counterclaim specifically raised the issue of the backfill and drainage behind the retaining wall, as well as issues with the steps, adjoining walls, a ramp, caps for the upper wall the height of the lower level wall, and rubbish removal. The respondent provided a report by Peter Leary of Peak Consulting dated 26 September 2018 (Peak Consulting Report).
16.At a hearing on 12 October 2018 the tribunal noted that the respondent had paid the applicant’s account in full, and that this left the respondent’s counterclaim to be determined.[5] This was then heard on that day and then on 15 January 2019.
[5] Transcript of proceedings on 12 October 2018 at page 5
17.In relation to the counterclaim, the original tribunal indicated that it found that the ramp did not form part of the agreement and was undertaken gratuitously by the original applicant. No compensation would be awarded for the alleged faults as the respondent had obtained an advantage without charge. The tribunal also found that the work on the steps was gratuitous.
18.The original tribunal found that the retaining wall was part of the agreement, and accepted the evidence of the Peak Consulting Report that some rectification was required for the wall. The cost of rectification of just the wall, in particular its drainage and support, was $1,540. I return to this issue below. In its summary the original tribunal stated:
72. The Tribunal came to the view that the applicant did the work which he was contracted to do and for a modest sum. He did additional gratuitous work, albeit not in the finished manner in which the respondent expected. The applicant’s work on the wall and particularly the draining was inadequate. He was given a chance to rectify this work and declined to do so. The respondent is entitled to the assessed cost of this rectification at $1,540.
19.The original tribunal noted that the resolution of the matter had been complicated by the unrepresented status of the parties and “the respondent’s repeated professed emotional concerns in dealing with the applicant”. The original tribunal found no basis for the respondent’s allegations against the applicant.[6]
Appeal
[6] Original decision at [69]
20.Mr Azdajic lodged an application for appeal dated 19 May 2019 and attached some relevant documents (application for appeal). There was no cross appeal by the respondent.
21.The appeal was heard on 30 October 2019. Mr Azdajic appeared for himself, and Ms Jayasuriya was represented by Adam Thompson of the Consumer Law Centre who provided written submissions on behalf of the respondent.
22.This appeal was dealt with under section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a review of the original decision. Mr Azdajic must therefore show an error of fact or law that justifies the original tribunal decision being varied or reversed. That is, Mr Azdajic must show some factual or legal error in the original tribunal’s decision. The appeal tribunal will not lightly substitute its own findings of fact for those of the original tribunal.[7]
Grounds of appeal
[7] See Mansour v Dangar [2017] ACAT 49 at [22]; Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [35]-[38]
23.The application for appeal contained four numbered grounds of appeal and then some further comments. The first ground is that when the applicant completed the job the respondent blocked the job site so that he could not totally clean the backyard as he wanted to. No finding was made against the applicant in this regard. I cannot see how this ground is relevant to the actual finding against him.
24.The second ground was that the respondent refused to give the applicant a defect list so that he could amend any part of the work. The respondent did raise a range of issues with the work on a number of occasions. From the commencement of these proceedings she asserted that there were defects. She did eventually make a counterclaim. There were numerous attempts to resolve this defects claim, all of which were unsuccessful. In the end the original tribunal upheld one aspect of the defects claim and this is discussed below. It does appear that aspects of the defects claim were specified at various times. Even if this were not the case, I do not think that this would be a basis for overturning the decision of the original tribunal in relation to the drainage for the wall after a hearing in which the original applicant fully participated.
Unfairness
25.The hearing focussed on the two remaining grounds. One was unfairness in the proceedings in that Ms Jayasuriya was allowed to bring the counterclaim notwithstanding that the proceedings had in effect already been resolved.
26.This issue relates to the conduct of these proceedings, which I have set out above, taken from the original decision. No issue was raised in the appeal as to the correctness of the summary in the original decision of the complicated history of these proceedings.
27.At the hearing on 15 June 2018 the tribunal member made the directions set out at paragraph [12] above. In that hearing the tribunal member did indicate that this was an attempt to resolve the dispute. Senior Member Anforth said, principally to Ms Jayasuriya:
…we’re arriving at this arrangement to facilitate your difficulties in dealing with the builder and to get the work finished so you get it how you like it in the backyard and he gets his money; and you can both get on with life.
If … [Mr Griggs] comes to an agreement on what’s to be done … and the builder does that, that’s it. Okay. That’s the end of it. … This looks like it will work. Mr Griggs … consenting to put his time and effort in. So you will be bound by what your agent, Mr Griggs, agrees. Okay. Do you understand that?
The respondent said “Yeah, okay”. The tribunal member confirmed that “Mr Griggs is going to make the final call on what the builder has to do to finish it off.” Again the respondent said “Okay”.[8]
[8] Original decision at [32]
28.The meeting apparently did take place, the applicant undertook some remedial works, and Mr Griggs wrote that the works were completed in accordance with his instructions. The respondent paid the balance of moneys due. Up to this point it is clear that the appellant had a significant basis for thinking that the matter had been resolved.
29.But then the respondent filed an interim application seeking orders for the refund of money which she had paid. And at the hearing on 24 August 2018 the tribunal set aside the orders of 15 June 2018 and the matter was listed for hearing, which occurred on 12 October 2018 and 15 January 2019. Were these further processes fundamentally unfair to the original applicant, and in effect a breach of the rules of procedural fairness or other legal principle, and therefore involved an error of law or fact on the part of the tribunal?
30.I do not think so. First, from the beginning this was a claim by the applicant builder with some form of counterclaim by the respondent owner. In order for the matter to be resolved, both claims needed to be agreed or resolved. Second, it was clear that the tribunal was trying to resolve this matter by agreement of the parties and without a hearing. The orders of 15 June 2018 suggest that there was some sort of agreement as to a process to resolve the matter without a hearing. The discussion in the hearing supports this, with the tribunal member saying in a number of ways: “If … [Mr Griggs] comes to an agreement on what’s to be done … and the builder does that, that’s it. Okay. That’s the end of it.” The applicant to his credit complied with this process. But the orders themselves provide that “if this agreement miscarries, either party may apply to the Registrar to relist before 15 August 2018”. It is not clear exactly what this means, but the respondent did have the matter relisted, suggesting that the matter did ‘miscarry’. This suggests that even if the orders were complied with, this did not of itself result in an inability to pursue the counterclaim.
31.Third, in any event the tribunal revoked the orders of 15 June on the basis that the respondent did not consent to them. Looking at the transcript in which the respondent on numerous occasions agreed with the course proposed by the tribunal, it is very difficult to believe that there was no consent. Notwithstanding this, the tribunal was convinced to revoke them.
32.Fourth, at any rate, there was then a hearing in relation to the counterclaim on 12 October 2018 and 15 January 2019 in which the appellant participated fully. He was given the opportunity to test the evidence of the respondent, in particular the Peak Consulting Report. He was given the opportunity to present his own evidence.
33.It was on the basis of this process that the original tribunal upheld the counterclaim of the respondent in relation to the backfill and drainage behind the wall. I do not think that the process amounted to a failure to provide procedural fairness.
34.Further, I do not think that the directions of the tribunal on 15 June 2018 gave rise to an estoppel (or res judicata), or brought the proceedings to an end (leaving the tribunal functus officio), thereby preventing the respondent from pursuing her counterclaim. It is unlikely that the relevant principles of estoppel operate in relation to administrative review proceedings in the tribunal, but they may in its civil claims jurisdiction. Further, in any case the statutory powers of the tribunal can be brought to an end by a final order.[9] But in my view the directions on 15 June 2018 did not fully resolve all the issues in the proceedings and bring them to an end.[10] Rather they attempted to set in place a process for an agreed resolution. No such agreed resolution eventuated, so the counterclaim could proceed.
Drainage
[9] Dennis Pearce, Administrative Appeals Tribunal (2015, 4th ed.) at [17.7]-[17.11]; Westlaw Australia, Victorian Administrative Law, online, Victorian Civil and Administrative Tribunal Act 1998 (Annotated), at [VCAT 116.80]
[10] See paragraphs [31]-[32] above
35.The second substantive ground of appeal was that the original decision contained an error of fact, namely that the retaining wall did not have appropriate drainage.
36.The finding of the original tribunal was that it generally accepted the evidence of the Peak Consulting Report. Mr Leary of Peak Consulting has 35 years building experience. He is a licensed builder and licensed building consultant. He inspected the relevant works, though the report does not say on what date. He provided a report dated 26 September 2018. The overall conclusion of the Peak Consulting Report was that rectification was required at the cost of $2,963.86. However, part of this sum reflected the need for work on the steps and ramp and the missing caps on the upper wall. As noted, the original tribunal found that the steps and ramp were not part of the agreement. It was also held that the respondent instructed the applicant that the caps on the upper walls were not required. It also held that the walls were built to the agreed height and look fine. It was determined that the cost of rectifying just the wall drainage was $1,540.[11]
[11] At [6]
37.The original decision makes it clear that the Peak Consulting Report found that the retaining wall had not been constructed with sufficient agricultural drainage.[12] The report had stated at page 26:
[12] At paragraphs [43]-[44]
Issue
Drainage of retaining wall.
Findings/Observations
I observe the retaining wall at the lower end of the allotment to be devoid of agricultural drainage and porous landfill.
The backfilled material is generally collapsing from the stepped earth.
I referenced the manufacturer’s installation manual and confirm that agricultural drainage and porous backfill is a requirement for this retaining wall system.
Opinion
The installer has failed to provide agricultural drainage and porous backfill as required by the retaining wall manufacturer.
…
Recommendation
Rectify the failure to install agricultural drainage by retrospectively installing agricultural drainage and coarse granular backfill as recommended by the retaining wall materials manufacturer.
…
Estimated rectification cost
Labour: 16 hours - $75 - $1200.00
Material –
Agricultural drainage line – 10 lineal metres - $120.00
Supply and deliver granular, free drainage backfill material – 1.5m2 - $220.00
Total - $1540.00
38.I note that this discussion suggests that it is only a part of the wall where there is a drainage problem; this may explain the conflicting evidence noted below. At page 28 of the report there is a picture which is described as: “Close-up view of back face of retaining wall showing no evidence of agricultural drainage or granular backfill required”.
39.The applicant indicated at the original hearing that he had read the Report.[13] But his position was that the work was ‘completely proper’ and that the agricultural pipe was there.[14] In the original hearing the tribunal repeatedly pointed out that the applicant’s views were not an independent assessment, and therefore did not rebut the Peak Consulting Report provided by the respondent.[15] The tribunal gave the applicant significant opportunity to obtain an expert report, but he did not do so. The tribunal made it clear to the respondent that she was required to allow an inspection for that purpose.[16]
[13] Transcript of proceedings 12 October 2018, page 4
[14] Transcript of proceedings 12 October 2018, page 4; transcript of proceedings 15 January 2019, page 36
[15] Transcript of proceedings 12 October 2018, pages 8-10
[16] Transcript of proceedings 12 October 2018, pages 8-9, 12-13, 16-17
40.But the applicant at the original hearing noted the report of Mr John Griggs, who was a neighbour of the respondent and a construction engineer.[17] The orders of 15 June at paragraph 12 above set out the role of Mr Griggs. He sent a message on 16 June 2018 as follows:
… this message is to confirm the works completed by Robert today were in accordance with my instructions, as required by the tribunal.
In my opinion the wall and steps are constructed to an acceptable standard. The steps and paver repair are considered to be safe.
A ramp was also constructed to permit transition between upper and lower levels.
Landscaping will be required to complete the works which I understand was outside of the agreed scope.
[17] Transcript of proceedings 12 October 2018, page 16
41.In my view this opinion should be given some weight. Mr Griggs had some relevant expertise. He and Mrs Griggs were, at least at one stage, friends of the respondent and provided her assistance, and this opinion was given in this context. It seems that this opinion was given after discussions between Mr Griggs and the Mr Azdajic, and Mr Azdajic had completed work in remedying the issues raised. (The author of the Peak Consulting Report apparently did not have the benefit of any discussions with Mr Griggs or Mr Azdajic, which is unfortunate.)
42.But Mr Griggs’ opinion does not specifically address the drainage issue. The Peak Consulting Report does in some detail. And the Peak Consulting Report was a detailed canvasing of the issues written by someone with clear qualifications and independent of the parties.
43.During the hearing of the appeal the appellant was asked on a number of occasions to set out the evidence in support of his position that the drainage works were properly done. He struggled to do this. At the end of the hearing he was given a further opportunity to do so. The direction was that he could file and serve references to the evidence which was before the original tribunal which showed that the drainage was put in. The respondent was given an opportunity to then reply to that.
44.The appellant put in a statement which said that he did install agi-pipe so the claim in the Peak Consulting Report was incorrect. There was no reference to any evidence in support of this position before the original tribunal.
45.The appellant also provided a new statement from Mr Griggs dated 3 November 2019. No direction or order had been made allowing this. Mr Thompson in submissions for the respondent noted that this was new evidence, that could have been obtained and presented to the original tribunal, was unsworn and was not able to be tested. This is accepted. But the respondent went on to address the statement, so I note its contents.
46.The statement set out Mr Griggs’ role in inspecting the appellant’s work, discussed above. Mr Griggs stated that he was not a builder, did not claim to be an expert at retaining wall construction, but had been a manager at a consulting engineering company and an electrical engineer, and as such had undertaken many routine inspections of electrical installations, and did not feel that his role in these proceedings was completely outside his comfort zone. He said he recalled that the appellant had agi-pipe and a pile of blue chip on the pavement; he recalled a discussion with the appellant about ensuring the agi-pipe connected with the storm water drain; when he “later inspected the installation of the agi-pipe behind the main wall, all the blue chip had been put in place”. He requested the appellant scrape away some of the blue chip, which he did, to reveal the agi-pipe in place.
47.This provides some more detail in relation to the role of Mr Griggs. But the substance of this was before the original tribunal, indeed had been arranged by it. The respondent’s photos attached to her statement themselves show some pipe and blue chip. The submissions by Mr Thompson also referred to material submitted in by the respondent in relation to retaining walls, which suggested that the pipe should have been installed at the base of the wall, which could not have been determined by the inspection undertaken by Mr Griggs.
48.Even if the new evidence of Mr Griggs were accepted, it primarily confirms the substance of his earlier statement. It is true that the new statement refers specifically to the drainage system. But I do not think it is sufficient to support rejection of the independent and detailed Peak Consulting Report.
49.In summary, the decision of the original tribunal was clearly based on an acceptance of the Peak Consulting Report, weighed against the comments of Mr Griggs and Mr Azdajic. This assessment of the evidence does not seem to me to amount to an error of law or fact. As noted, an appeal tribunal will not lightly substitute its own findings of fact for those of the original tribunal. Even if the new statement by Mr Griggs were accepted, I do not think this is sufficient to rebut the terms of the Peak Consulting Report. This ground of appeal is therefore not made out.
Conclusion
50.None of the grounds of appeal are therefore upheld, and the decision of the original tribunal is confirmed.
51.I do note that I agree with Mr Azdajic that this was, and remains, a harsh outcome for him. As the original tribunal found, Mr Azdajic did significant further work for Ms Jayasuriya at his own cost and no cost to her. Also, the original tribunal and Mr and Mrs Griggs made significant efforts to resolve the dispute by agreement of the parties. Mr Azdajic co-operated with these attempts and in good faith sought to remediate the work in consultation with Mr Griggs. Ms Jayasuriya nonetheless pursued her claim. But these factors do not of themselves give rise to an error of law or fact in the original tribunal decision.
………………………………..
Acting Presidential Member R Orr QC
52.
HEARING DETAILS
FILE NUMBER:
AA 15/2019 (XD 177/2018)
PARTIES, APPLICANT:
Robert Azdajic
PARTIES, RESPONDENT:
Chandrani Jayasuriya
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Adam Thompson
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
Consumer Law Centre
TRIBUNAL MEMBERS:
Acting Presidential Member R Orr QC
DATES OF HEARING:
30 October 2019
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