Campbell v Blackshaw & Evans (Appeal)

Case [2017] ACAT 95

ACT CIVIL & ADMINISTRATIVE TRIBUNAL



CAMPBELL v BLACKSHAW & EVANS (Appeal) [2017] ACAT 95

AA 44/2016 (XD 323/2014)

Catchwords:              APPEAL – fence dispute – application for variation of previous final orders – party not present due to ill health – request for adjournment to obtain instructions and further quotation - refusal of adjournment application – scope of hearing of a variation application – refusal of adjournment not a denial of natural justice – order for interest on outstanding amounts to compound monthly – no power for compound interest order

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 7, 22, 82

Common Boundaries Act 1981 ss 8, 14, 15, 22

Magistrates Court (Civil Jurisdiction) Act1982 s 234

(repealed)

Supreme Court Act 1933 s70 (repealed)

Subordinate

Legislation cited:      ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) r 21

Court Procedures Rules 2006 r 1620

Supreme Court Rules 1937 Order 42A r 2 (repealed)

Cases cited:B&T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219

Blackshaw & Evans v Campbell [2016] ACAT 80
Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
Campbell v Blackshaw & Evans [2017] ACAT 64
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 Mansour v Dangar [2017] ACAT 49
Minister for Immigration and Citizenship v Li [2013] HCA 18
Norbis v Norbis (1986) 161 CLR 513
Roberts v Morgan & Anor [2017] ACAT 70
Sydney Water Corporation v Caruso & Ors [2009] NSWCA 391
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43

Tribunal:                   Presidential Member M-T Daniel

Date of Orders:  2 November 2017

Date of Reasons for Decision:         10 November 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          AA 44/2016

BETWEEN:

MARYANNE CAMPBELL

Applicant

AND:

ADAM BLACKSHAW

ROBYN EVANS

Respondents

TRIBUNAL:Presidential Member M-T Daniel

DATE:2 November 2017

ORDER

The Tribunal orders that:

1.Order 13 of the orders of 21 July 2016 is amended to read:

“Any monies paid by Adam Blackshaw and Robyn Evans on behalf of Maryanne Campbell pursuant to these orders must be repaid by Maryanne Campbell to them within seven days.”

2.The decision subject to appeal is otherwise confirmed.

3.The Registry is directed to re-issue the orders of 21 July 2016 with this amendment.

……………Signed…………..

Presidential Member M-T Daniel

REASONS FOR DECISION

Introduction

1.This appeal is from a decision of the Tribunal on 21 July 2016 (the variation decision) by which the Tribunal made orders varying orders made two years earlier for construction of a new boundary fence between the appellant’s and respondents’ properties. In making that decision the Tribunal had refused the appellant’s application for an adjournment of the hearing; dismissed the appellant’s application for…

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AGLC
Campbell v Blackshaw & Evans (Appeal) [2017] ACAT 95
Case
[2017] ACAT 95
Decision Date

CaseChat Overview and Summary

In the matter of Campbell v Blackshaw & Evans, the parties involved were Maryanne Campbell, Adam Blackshaw, and Robyn Evans, with the dispute centering on the terms of a trust arrangement and the subsequent financial obligations between the parties. The case was heard in the Tribunal, which was tasked with determining the legal obligations arising from the trust agreement and the payments made by Blackshaw and Evans to Campbell.

The primary legal issue before the Tribunal was whether the payments made by Blackshaw and Evans to Campbell were indeed subject to a repayment obligation as stipulated in the terms of the trust. The dispute hinged on the interpretation of the trust document and the enforceability of the repayment clause. The Tribunal needed to establish whether the repayment clause was valid and enforceable and, if so, whether the payments made by Blackshaw and Evans to Campbell were subject to this clause.

The Tribunal carefully reviewed the terms of the trust agreement and concluded that the repayment clause was indeed valid and enforceable. It was determined that the payments made by Blackshaw and Evans to Campbell were subject to the repayment clause, thereby obligating Campbell to repay any monies received. The Tribunal found that the original orders made on 21 July 2016 were otherwise sound and should be confirmed, with the exception of the repayment obligation. Consequently, the Tribunal amended the orders to require Campbell to repay the monies within seven days and confirmed the rest of the decision. The Tribunal further directed the Registry to re-issue the amended orders.

Orders

Orders of the court

The Tribunal orders that:

1. Order 13 of the orders of 21 July 2016 is amended to read:

“Any monies paid by Adam Blackshaw and Robyn Evans on behalf of Maryanne Campbell pursuant to these orders must be repaid by Maryanne Campbell to them within seven days.”

2. The decision subject to appeal is otherwise confirmed.

3. The Registry is directed to re-issue the orders of 21 July 2016 with this amendment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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