Carpenter v Garling

[2004] NSWSC 811

CITATION:	Carpenter & Anor v Garling [2004] NSWSC 811
HEARING DATE(S):	26/08/04
JUDGMENT DATE:	3 September 2004
JUDGMENT OF:	Hoeben J at 1
DECISION:	Plaintiffs' summons dismissed.
CATCHWORDS:	Point of law appeal - adequacy of reasons.
LEGISLATION CITED:	Local Courts ( Civil Claims) Act 1970
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Devries v Australian National Railways Commissioner (1993) 177 CLR 472 Makita (Australia) Pty Limited v Sprowles (2000-2001) 52 NSWLR 705 R v District Court Ex parte White (1966) 116 CLR 644 Shorey v PT Limited (as trustee for McNamara Property Trust) (2003) 77 ALJR 1104 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Waterford v The Commonwealth (1987) 163 CLR 54 at 77
PARTIES :	Kenneth James Carpenter and Christa Schaber - Plaintiffs Eugenia Garling - Defendant
FILE NUMBER(S):	SC 12730/2003
COUNSEL:	Ms J Merkel - Plaintiffs Mr R Quickendon - Defendant
SOLICITORS:	Jennifer E Darin - Plaintiffs John Ryan - Defendant

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	364/2001
LOWER COURT JUDICIAL OFFICER :	C Longley LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 3 September, 2004

12730/03 - Kenneth James CARPENTER & Christa SCHABER v Eugenia GARLING

JUDGMENT

1 HIS HONOUR: This matter comes before the Court by way of summons pursuant to s69 of the Local Courts (Civil Claims) Act 1970. The summons challenges a decision of Mr Longley LCM (the magistrate) delivered on 19 September 2003. Section 69 limits such appeals to point of law only.

2 The plaintiffs rely upon six grounds of appeal. Ground of appeal (2) was abandoned in the written submissions.

3 The grounds of appeal relied upon were as follows:-

(1) His Honour erred in law in concluding that the reports of Mr Jaroszewicz and Mr Taylor were of little weight bearing in mind the bases on which each of the reports are factually based.

(3) His Honour erred in law by inferring that the plaintiff knew or ought to have known of incursion of tree roots onto the defendant’s land before July 2003.

(4) His Honour erred in law in failing to have regard to evidence that cracking to the north western wall of the defendant’s home was apparent in August 2000.

(5) His Honour erred in law in failing to have regard to the plaintiffs’ evidence that the measures proposed by the defendant for repair to her home were unreasonable and potentially ineffective.

(6) His Honour erred in law in failing to address the relevant issues and evidence and failed to make the necessary and relevant findings of fact.

(7) His Honour erred in law in failing to give reasons or sufficient reasons for preferring the evidence of the experts called by the plaintiffs over the evidence of experts called for the defendant.

4 At the hearing of the matter and in the written submissions relied on by the plaintiffs the grounds of appeal could be reduced to three propositions:

(i) Grounds of appeal (1) (6) and (7) – that the magistrate had incorrectly analysed the competing expert evidence and in preferring the expert opinion led on behalf of the defendant to that of the plaintiffs, he had provided inadequate reasons.

(ii) Grounds of appeal (3) and (4) – it was not open to the magistrate to find that complaints had been made by the defendant to the plaintiffs nor was it open to him to find that damage caused by tree roots was reasonably foreseeable.

(iii) Ground of appeal (5) – that damages were calculated on an incorrect basis and that the magistrate failed to provide adequate reasons for preferring the damage calculations put forward by the defendant to those provided by the plaintiff.

5 The response by the defendant in her written submissions and argument was as follows:

(i) The appeal did not raise proper points of law but only challenged issues of fact which had been found against the plaintiffs.

(ii) The real issue was not so much the competing reasoning of the experts but rather the fundamental premise upon which the competing opinions were based ie was the damage to the defendant’s property caused by the incursion of tree roots or construction defects, in particular the depth of the footings of the dwelling.

(iii) Damages were a proper remedy in a claim based on nuisance where damage had actually occurred. Once the magistrate had found that the cause of the damage was the incursion of tree roots, it was open to him to accept the damages calculations put forward on behalf of the defendant since these were the only calculations which dealt with that finding. This was particularly so since the builder who provided those calculations had been cross-examined.

Factual background

6 The plaintiffs owned a property at 81 Alexandra Parade, Wahroonga. They had moved into that property in 1988. The defendant owned an adjoining property at 83 Alexandra Parade. She and her family had moved into that property in 1994.

7 Along the eastern boundary, between the plaintiffs’ premises and the defendant’s premises were three large melaleuca (paperbark) trees. It was the evidence of the defendant that she and her husband had noticed a progressive deterioration of their paved pathway, pebblecrete area and north-west corner wall of their dwelling immediately adjacent to the paperbark trees between about 1995 and 2000.

8 The defendant had arranged for an area of path and pebblecrete to be removed, which exposed tree roots apparently coming from the plaintiffs’ paperbark trees and encroaching onto the defendant’s property. The defendant communicated her concerns to the plaintiffs. The plaintiffs ignored the defendant’s protests. The question of complaint was an issue before the magistrate.

9 The defendant commenced proceedings in the Hornsby Local Court relying upon trespass negligence and nuisance. The proceedings were heard between February 2003 and October 2003 over a period of four days.

10 On behalf of the plaintiffs, evidence was provided by Mr Taylor a geotechnical engineer, by Mr Jaroszewicz a structural engineer, Mr Gatenby an arborist and Mr Redman a geotechnical engineer. All provided reports. On behalf of the defendant evidence was given and reports were provided by Mr Manley, a structural engineer, Mr Venner, a structural engineer, Mr Rosser, a licensed builder and Mr Leake, an expert in soil and trees.

11 The plaintiffs’ and defendant’s experts were at odds as to the cause of the damage to the defendant’s property. On behalf of the defendant the evidence was that the roots of the trees had caused the damage and on behalf of the plaintiffs it was that the damage had been caused as a result of inadequate footings being provided when the house was constructed.

12 The magistrate accepted the opinion of the defendant’s experts and found that the roots from the paperbark trees had caused the damage to the pathway, to the pebblecrete and had materially contributed to the damage to the north west corner wall.

Findings of fact/issues not in dispute

13 In the written submissions of the defendant a useful summary of findings of fact, or matters not in dispute, is set out.

(a) On the plaintiffs’ eastern boundary there were a number (at least three) paperbark trees growing within two metres of the defendant’s dwelling, pathway and pebblecrete area. The trees were high (15 metres) and had extensive root systems (Exhibits 7, 13, 15, 16 and 17).

(b) The tree roots from the paperbark trees had grown onto the defendant’s property along the western boundary. (Exhibit 2 Manley reports, judgment para 22).

(c) The defendant’s property at its western side had damaged pavers (cracking and lifting) on a pathway, damaged pebblecrete (cracking and lifting) and damage to the north-western wall in the nature of cracking of the defendant’s dwelling (judgment para 22, 27).

(d) Between 1994 and 2000 the defendant and her husband observed the pathway between the residences had lifted and cracked. As a result the pathway became unusable for their children and skateboards and a pathway was repaved in 1997. In 1999 the concrete path was lifted showing tree roots under the path which had to be removed so the path could be re-laid.

(d) In 2000 the defendant and her husband observed tree roots below the north-western wall (judgment para 4).

(e) Hornsby Shire Council officers (Albert Schweiber and Prudence Trollope) had spoken to a female resident of No 81 about the paperbark trees (Exhibits 36 and 37).

(f) The plaintiffs were aware of the concerns of the defendant relating to the tree roots from conversations with her as early as 1994 – 1995 and the allegation that they were causing damage. They failed to respond. (Judgment para 25)

Grounds of appeal (3) and (4)

14 These grounds can be shortly dealt with. They do not raise issues of law. They raise issues of fact. These issues were found against the plaintiffs (judgment 5-6, 23). The rejection of the plaintiffs by the magistrate on this issue was credit based, was fully explained and involved an acceptance of the defendant’s evidence in preference to theirs. Those grounds of appeal fail.

Grounds of appeal (1) (5) and (6)

15 It was these grounds which represented the thrust of the appeal. By way of illustration it was submitted on behalf of the plaintiffs that the magistrate had not analysed the competing expert opinion in sufficient depth. It was pointed out that there was unchallenged evidence that cracks existed in other parts of the defendant’s dwelling which could not possibly have been caused by tree roots and that these cracks were similar in type to those in the north-western wall. The reason for these cracks was attributed by the plaintiffs’ experts to a combination of inadequate footings (250 mm instead of 800 mm) together with reactive soil of a particular type. No mention of this line of reasoning by the plaintiffs’ experts had been made by the magistrate.

16 The argument was further developed by reference to the magistrate’s reliance upon the decision in Makita (Australia) Pty Limited v Sprowles (2000-2001) 52 NSWLR 705. It was submitted that the magistrate had misunderstood the ratio of the Makita decision, had consequently misapplied it and had also wrongfully confused his rejection of the plaintiffs’ experts on demeanour/credit based grounds with his application of the Makita decision.

17 In order to test the correctness of this submission, it is necessary to look more closely at what the magistrate in fact did in relation to the competing expert evidence and how he resolved that conflict. The nature of the expert evidence before the magistrate is also relevant.

18 The magistrate commenced his review of the competing expert evidence at para 8. Having read the reports of Messrs Venner and Leake, together with that of Mr Manley (Exhibit 2), I am of the opinion that not only was it open to the magistrate to find that roots from the paperbark trees had intruded onto the defendant’s property causing pavers and pebblecrete to lift but that the evidence was overwhelmingly to that effect. The physical digging up of the damaged areas to reveal the intruding roots is most persuasive.

19 The magistrate dealt with the evidence of Mr Taylor in paras 10, 11 and 13. Mr Taylor was the geotechnical expert employed by Douglas Partners.

20 I have read the reports of Mr Taylor and his evidence. Insofar as his reports are concerned, they are relatively uncontroversial. His conclusions as to the soil type and its effect may be correct. What the reports fail to address is the actual discovery of tree roots after digging up pavers on the defendant’s property, in particular in the vicinity of the footings at the north-west corner of the dwelling.

21 When this proposition was put to Mr Taylor under cross-examination, it did not affect his overall conclusion. That is surprising. It was open to the magistrate on the basis of that evidence to treat the conclusions of Mr Taylor with considerable reservation.

22 The magistrate’s other reason for not accepting the opinion of Mr Taylor where it conflicted with that of the defendant’s experts was because Mr Taylor had failed to make allowances for the fact that his inspections had taken place after a considerable rainfall event. The significance of such a rainfall event was put to Mr Taylor in cross-examination and was explained in the reports of Mr Leake. (Judgment para 12).

23 In relation to Mr Taylor I can find no error in the approach of the magistrate. He was not satisfied with the way that Mr Taylor dealt with a significant issue (of which he had been previously unaware) under cross-examination and preferred the scientific opinion of Mr Leake to his in relation to the moisture content of the soil on which the defendant’s dwelling was built. His reasons for reaching that conclusion are clearly set out. That conclusion was open to him. There is also, of course, the unexpressed effect of demeanour and the advantage of the magistrate in seeing and hearing Mr Taylor give his evidence (Abalos v Australian Postal Commission (1990) 171 CLR 167, Devries v Australian National Railways Commissioner (1993) 177 CLR 472).

24 A useful statement of principle as to what constitutes adequate reasons where an appeal lies on point of law only is that of McHugh JA in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281:

“In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If for example the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turns simply on the plaintiff’s credibility. But, if, in addition to the issue of credibility, other matters were relied upon as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough …
Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because as Asprey JA pointed out in Pettit v Dunkley (at 302), the learned judge “has not properly fulfilled the function which the law calls upon a judicial person to exercise.” However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the court into holding that the learned judge has failed to give reasons for his finding.”

25 A corollary to that statement of principle is the proposition that in providing reasons a tribunal of fact does not have to deal with every disputed issue of fact if the basis for its decision is clear (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430).

26 As a result of the above analysis I am of the opinion that the magistrate’s reasons for rejecting the opinion of Mr Taylor were adequate and do not reveal an error of law.

27 The magistrate dealt with the opinion of Mr Jaroszewicz at paras 14-16 and 21. The magistrate formed an unfavourable opinion of Mr Jaroszewicz based on his performance when giving evidence.

28 While I have not had the advantage of hearing and seeing Mr Jaroszewicz give his evidence, a reading of the transcript does indicate a basis for the magistrate’s dissatisfaction. Mr Jaroscewicz refused to come to grips with the proposition that the uncovering of the roots at the very location where the path had been forced upwards meant that the roots were at least in part contributing to the damage. His approach seemed to be that the presence of the roots was incidental and that the real cause of these problems were a combination of the inadequate footings in the dwelling and the reactive qualities of the soil upon which the dwelling was constructed. He sought to establish this by assertion rather than by identifying why the alternative theory was incorrect.

29 It may well have been that the other cracking in the dwelling in areas not affected by the tree roots was due to the footings and the soil. That was not a matter in relation to which the magistrate had to make a decision. What he had to do was to determine whether the roots of the paperbark trees were a cause of the damage which had been described, not the cause. (Shorey v PT Limited(as trustee for McNamara Property Trust) (2003) 77 ALJR 1104).

30 As to whether or not the dwelling had been constructed in accordance with good building practice was largely a red herring unless the tree roots could be excluded as a cause of the damage. The evidence of Mr Jaroszewicz seemed directed at the former issue whilst ignoring the latter.

31 The magistrate’s reasons for rejecting the evidence of Mr Jaroszewicz were the unfavourable impression which he had formed of him as he gave his evidence, his assertion of his opinion rather than justifying it, and his failure to come to grips with the consequences to his theory of the fact that the roots had been found at the precise location of much of the damage. Those reasons were clearly expressed and were open on the evidence. There was no need for the magistrate to deal with the question of other cracks in the dwelling once he had concluded as a matter of fact that the tree roots had caused the specific damage being considered by him.

32 The challenge to the magistrate’s use of the Makita decision misunderstands how the magistrate approached that question. It is clear from judgment para 21 that there was no such confusion of thought as was submitted, but rather the approach was entirely orthodox and consistent with Makita.

33 The opinions of Messrs Jaroszewicz and Taylor were based on the premise that the tree roots had nothing to do with the damage and that consequently the only explanation was a combination of inadequate footings to the dwelling and the particular characteristics of the earth on which the dwelling was constructed. Once it was found as a matter of fact that the tree roots were the cause of the damage the basis for the opinions of Messrs Jaroszewicz and Taylor fell away. Judgment para 21 makes it clear that the Makita decision was being used in that way. There is no error in such an approach.

Ground of appeal (5) - damages

34 It was formally submitted on the hearing of the matter that damages were not a proper remedy for the nuisance found by the Court. No arguments were addressed to that question. I reject the submission. It is clear from Proprietors Strata Plan No 14198 v Cowell (1991) ATR 81-083 that where actual damage occurs and such damage is reasonably foreseeable by the persons responsible for the nuisance, damages for rectification of that damage and abating the nuisance are recoverable. At judgment para 23 the Court made the necessary factual findings to justify an award of damages.

35 The real challenge under this ground of appeal was the choice by the Court of the defendant’s calculation of rectification and abatement costs in preference to the much cheaper alternative put on behalf of the plaintiffs without adequate reasons being given.

36 The difficulty with that submission is that the report of Mr Jaroszewicz as to rectification costs (Exhibit 19 – report 13 December 2002) assumes as its start point that the cause of the cracking was a combination of inadequate footings and the reactivity of the soil. Consequently the report talks in terms of filling in relatively minor cracks. The report is of little assistance once a finding was made that a cause of the damage was the intrusion of the tree roots onto the property.

37 The only damages calculation which dealt with rectification and abatement costs in such a situation were those of Mr Rosser (Exhibit 35). The calculations of Mr Rosser were tested under cross-examination (8 September 2003 T.44-52). In the course of that cross-examination the alternative theory was put to him but was essentially rejected by him. His answer at T.45.29 is instructive:

“A. It seems to me that the man is recommending no underpinning. That’s his opinion, of no underpinning. I’ve come to do a quotation on a job, met the engineer on site and under his supervision I’ve come to do the quotation. I’m not an engineer. I don’t deem myself to be an engineer. I’m a master builder. That’s all I am, OK. So I’ve come here to do the quotation on the work as set out from the engineer I met on site.”

38 Given the way in which the matter proceeded before him, there was no error in the way in which the magistrate provided reasons for preferring the assessment of damages made on behalf of the defendant to that made on behalf of the plaintiffs. It followed from his primary finding of fact that a cause of the damage was the intrusion of tree roots.

39 I have spent some time analysing and reviewing the reasons provided in the court below. This is in deference to the detailed oral and written submissions made on behalf of the plaintiffs. There is, however, considerable force in the primary submission made on behalf of the defendant that this appeal does not raise any issues of law and that the issues actually argued were in reality questions of fact.

40 When measured against the test outlined by the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-56 it is clear that there were not issues of law raised on appeal.

“The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law.
But it is said that “there is no error of law simply in making a wrong finding of fact”. ( Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J). Similarly, Menzies J observed in R v District Court Ex parte White (1966) 116 CLR 644 at 654:
“Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law.”
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

Conclusion

41 For the above reasons, I am of the opinion that the appeal does not raise any error of law and I dismiss the plaintiffs’ summons.

42 The question of costs was not argued before me. I do not know whether any special orders are sought in relation to costs. I grant the parties leave to approach the Court on 2 days’ notice if they wish to argue the question of costs. If no such application is made within 21 days, I order that the plaintiffs pay the defendant’s costs of and associated with the summons, including the hearing on 26 August 2004.

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Last Modified: 09/06/2004