Chen v Ghildyal; Ghildyal v Chen
[2019] ACAT 25
•21 February 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHEN v GHILDYAL & ANOR; GHILDYAL & ANOR v CHEN (Civil Dispute) [2019] ACAT 25
XD 325/2018
Catchwords: CIVIL DISPUTE – fence dispute – subsidence of land – follow-on litigation – no trespass – nuisance – negligence – damages for interference with enjoyment of land
Legislation cited: Civil Law (Wrongs) Act2002 ss 35, 42, 43, 44, 46, 141
Common Boundaries Act 1981 ss 6, 10, 11
Subordinate
Legislation cited: Excavation Work Code of Practice (March 2015)
Territory Plan 2008 Single Dwelling Housing Development Code
Work Health and Safety (Excavation Work Code of Practice) Approval 2015
Cases cited:Chen v Ghildyal [2018] ACTCA 52 (unreported)
Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSWLR 486
Holbeck Hall Hotel Ltd & Anor v Scarborough Borough Council [2000] QB 836
Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWC 230
March v Stramare (E & MH) Pty Ltd [1991] HCA 12
Munro v Southern Dairies Ltd [1955] VLR 332
NSW v Ibbett [2005] NSWCA 445
Royall v The Queen (1991) HCA 27Schenker AG and Schenker (NZ) Limited v Commerce Commissions [2013] NZCA 114
List of
Texts/Papers cited: Allan Anforth, Peter Christensen & Christopher Adkins, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017)
Caron Beaton-Wells, ‘Private Enforcement of Competition Law in Australia – Inching Forwards’ (2016) 39(3) Melbourne University Law Review 681
Justice James Edelman, ‘Understanding Causation and Attribution of Responsibility’ (Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015)
Tribunal:Senior Member L Beacroft
Date of Orders: 21 February 2019
Date of Reasons for Decision: 21 February 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 325/2018
BETWEEN:
YIJUAN CHEN
Applicant (Fence Dispute Application)
Respondent (Civil Dispute Application)
AND:
AMIT GHILDYAL
First Respondent (Fence Dispute Application)
First Applicant (Civil Dispute Application)
REENA GHILDYAL
Second Respondent (Fence Dispute Application)
Second Applicant (Civil Dispute Application)
TRIBUNAL:Senior Member L Beacroft
DATE:21 February 2019
ORDER
The Tribunal orders that:
1.In relation to the Fence Dispute Application dated 20 March 2018:
a)Mr Chen will build a replacement fence along the common boundary of 11 Bellbird Loop and 13 Bellbird Loop, Lawson, ACT as shown in the survey by Brian Milburn and Associates Land Surveyors dated 9 April 2018 (at Attachment A) by close of business on Friday 19 April 2019.
b)The fence will be 1.8 metres high, lapped paling timber, metal capped, with the steel posts of the fence facing the Ghildyals’ property.
c)As far as practically achievable, the centre of the fence palings will be on the surveyed boundary line, and the fence will be no more than 11cms on either of the properties as measured from the centre of the palings (the surveyed boundary line) until close of business 19 April 2020.
d)The fence gate and the back fence on the Ghildyals’ property will be
re-fastened to the replacement fence once it is installed.
e)Mr Chen will arrange for a surveyor to re-survey the fence to check that it is positioned correctly and within the tolerance specified in this Order and provide a copy of this survey to the Ghildyals within 24 hours of Mr Chen receiving it.
f)Mr Chen will pay the full cost of the replacement fence materials and its installation, and also the full cost of the survey.
g)The Ghildyals will allow Mr Chen, any contractors and the surveyor reasonable access to their property to allow all aspects of Order 1 to be met.
2.In relation to the Civil Dispute Application dated 24 May 2018:
a)Mr Chen will pay to Mr and Mrs Ghildyal the sum of $12,778.38 by close of business on Friday 19 April 2019.
b)Mr Chen will arrange to have any temporary fencing, temporary props and other temporary structures on the Ghildyals’ property removed at his own expense by close of business on Friday 19 April 2019.
c)The Ghildyals will allow Mr Chen and his contractors reasonable access to their property to allow all aspects of paragraph (b) of Order 2 to be met.
3.Mr Chen will arrange for the report of ACT Geotechnical Engineers Pty Ltd dated 2 May 2018 to be amended, as set out in the Ghildyals’ email and attachment to Mr Chen’s solicitor dated 16 November 2018, and provide that amended report to the Ghildyals by close of business on 19 April 2019.
4.Mr Chen is to pay to the Tribunal the fee for the second day of the hearing, being $153, by close of business on 19 April 2019.
5.The Registrar is directed to refer the applicant’s certifier, Mr Joseph Fekete, to the Construction Occupations Registrar for consideration of the question of whether disciplinary or other action should be taken in relation to Mr Fekete in respect of the advice allegedly given to the applicant by Mr Fekete to the effect that the application for development approval was exempt from compliance with Rule 20 of the Single Dwelling Housing Development Code (as outlined in paragraph 38 of the attached reasons for decision).
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
1.The reasons for the order above are set out below.
Background
2.In summary, the case is a dispute between neighbours. Mr Chen owns a property in Lawson (Chen property) and the Ghildyals own a neighbouring property (Ghildyals’ property). The Ghildyals had built their house some months before Mr Chen began work on his house. Mr Chen was concerned about a common fence with the Ghildyals (the disputed fence), in that he contended that it encroached on to his property. He filed a Fence Dispute Application with the ACT Civil and Administrative Tribunal (the tribunal), dated 20 March 2018 (XD 325/2018).
3.Mr Chen was a licensed owner builder, having completed a course and “passed the exam with a score 97 (out of 100).”[1] He engaged Richard Kozjak of Sentient Pty Ltd, a licensed builder, to be the principal contractor to assist him.[2] Mr Chen undertook work to construct his house, having obtained planning approvals with the assistance of a certifier. His works involved excavating on the common boundary with the Ghildyals’ property. The Ghildyals became concerned about undermining of the disputed fence and encroachment onto their land, and sent an email to Mr Chen stating their concerns and reminding him of his fence dispute application before the tribunal.[3] On 27 March 2018, the face of the excavation area collapsed such that the Ghildyals’ property was affected, and remediation was necessary.
[1] Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 2, [5]
[2] Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 2, p[6]
[3] Transcript of proceedings 9 November 2018, page 345
4.The Ghildyals notified WorkSafe ACT, and WorkSafe ACT first inspected the properties on 28 March 2018.[4] WorkSafe ACT relied on the geotechnical engineer engaged by Mr Chen to remediate the situation.[5] WorkSafe ACT contacted Mr Chen on 2 May 2018 advising him that they had no remaining concerns about the situation.[6] WorkSafe ACT emailed the Ghildyals on 15 October 2018 advising them similarly,[7] however WorkSafe ACT did not require the builder to remove the temporary fence or props because of the ongoing litigation.[8]
[4] Transcript of proceedings 8 November 2018 page 136
[5] Transcript of proceedings 8 November 2018 page 141
[6] Exhibit C17
[7] Exhibit C4
[8] Transcript of proceedings 8 November 2018 pages 141-142
5.Mr Chen contended that he promptly and fully implemented the recommendations in the geotechnical report dated 28 March 2018[9] to fully make safe and remediate the situation.[10] He said that this was confirmed by a report dated 2 May 2018 from ACT Geotechnical Engineers Pty Ltd that states “[i]t is assessed that the batter has now been stabilised in accordance with our recommendations, with a structural retaining wall constructed and backfilled based on our advice”.[11]
[9] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018
[10] Amended Civil Dispute Application 10 August 2018, Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 6-8
[11] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 2 May 2018 – Final Certification’ 2 May 2018 page 2
6.The Ghildyals obtained a copy of Mr Chen’s plans under freedom of information laws[12] and raised questions with the relevant regulatory areas about planning approval issues. The Investigations Team, Access Canberra, first inspected the properties on 4 March 2018, and an investigation was undertaken which concluded that Rule 20 of the Single Dwelling Housing Development Code was not complied with, due in part to the wall being “2.15m and 1.65m from natural ground level” compared to the allowable 1.5m.[13] As a result, a ‘Stop [work] Notice’ dated 31 August 2018 was issued to Mr Chen because the building work was “without development approval.”[14] Notice was given to Mr Chen on 27 September 2018 by the ACT Government that “the stop work notice is no longer in force.”[15]
[12] Transcript of proceedings 9 November 2018 page 332
[13] Access Canberra ‘Investigations Team Inspection Record’ completed 4 September 2018 12:07pm page 3
[14] ACT Government Stop Notice dated 31 August 2018
[15] Exhibit C15
7.On 6 April 2018 the Ghildyals successfully obtained an injunction from the ACT Supreme Court that required Mr Chen to stop work on the common boundary of the properties and to take remediation action. A later decision of the Supreme Court awarded costs to the Ghildyals, with the Chief Justice stating “there is no doubt in my mind on the basis of albeit limited material before me that there was a trespass and that [the Ghildyals] had a good reason to seek relief … justice requires that [Mr Chen] pay [the Ghildyals’] costs of the injunction proceedings”.[16] The cost decision was appealed unsuccessfully, with Justice Loukas-Karlsson noting that the primary judge had found “there appears to have been a significant trespass” and the Ghildyals had found the “collapse … most distressing.”[17]
[16] Transcript of proceedings in the Supreme Court of the Australian Capital Territory 30 July 2018 page 14 (SC No 151 of 2018)
[17] Chen v Ghildyal [2018] ACTCA 52 (unreported) [19] and [39]
8.The Ghildyals filed a Civil Dispute Application with the tribunal on 24 May 2018, later amended on 10 August 2018. The initial application claimed trespass, nuisance and negligence and compensation of $53,554.08 (capped at the tribunal’s jurisdictional limit of $25,000) plus reimbursement of tribunal fees; this claim for compensation was later amended to $25,000 plus reimbursement of tribunal fees. Interest was claimed in the Amended Civil Dispute Application dated 10 August 2018, from “the date of cost incurred”. Mr Chen seeks an order for a new fence in his Amended Fence Dispute Application filed on 10 August 2018, and denies liability for payment of any damages to the Ghildyals in his Response to the Civil Dispute Application filed on 14 June 2018.
Issues and law
Fence Dispute Application - issue
9.What is the most appropriate order to be made by the Tribunal under the Common Boundaries Act 1981 (the Act)? The Tribunal notes that the parties agree on most elements of the replacement fence and the Tribunal has been asked to make a determination to this effect, and about the disputed elements.
Civil Dispute Application - issue
10.Is Mr Chen liable to pay the Ghildyals damages as they claim and, if so, on what basis and in what sum?
Fence Dispute Application - law
11.The fence dispute is made under the Act. The tribunal has powers under the Act to determine if a fence should be replaced/repaired, the nature of any replacement fence and arrangements between the parties for paying for and doing the fence works.[18]
Civil Dispute Application - law
[18] Common Boundaries Act 1981 section 11
12.Trespass, nuisance, and negligence are separate actions. Trespass can be summarised as intentionally or negligently entering or remaining on land, or directly causing any physical matter to come into contact with land, the land being in the possession of another person. It is a defence to trespass if the trespass was because of negligence and the trespasser “made a reasonable offer to make amends … before the action was brought.”[19]
[19] Civil Law (Wrongs) Act 2002 section 141(b) and (c)
13.Nuisance is essentially an action concerning loss of enjoyment of land, and substantial interference must be shown.
14.Negligence is a breach of duty that results in damages. Under the Civil Law (Wrongs) Act2002, in deciding the standard of care the test is that of “a reasonable person in [Mr Chen’s] position who was in possession of all the information that [Mr Chen] either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”[20] A person is not negligent for not taking precautions unless the risk “was foreseeable” and “was not insignificant” and “in the circumstances, a reasonable person in the person’s position would have taken those precautions.”[21] The Civil Law (Wrongs) Act2002 sets out considerations when determining if a reasonable person would have taken precautions: probability that the harm would happen without precautions; the burden of taking precautions; and the social utility of the activity creating the risk of harm.[22]
[20] Civil Law (Wrongs) Act 2002 section 42
[21] Civil Law (Wrongs) Act 2002 section 43(1)
[22] Civil Law (Wrongs) Act 2002 sections 43(2) and 44
15.In this case, the issue about whether any or all of these actions is made out largely rests with whether Mr Chen caused the subsidence of the Ghildyals’ land and, if so, whether the subsidence of the land has been fully remedied so that no damages are payable. The Ghildyals bear the burden of proving on the balance of probabilities any fact relevant to the issue of causation[23] and their case as a whole.
[23] Civil Law (Wrongs) Act 2002 section 46
16.If any of these causes of action are successful the issue of damage arises. The general principle is that the harmed person is restored to the position they would have been in had the wrong not been committed. Damages includes financial loss, such as the cost of remediation or loss of market value, and it also includes non-financial loss such as interference with the enjoyment of land.[24] Aggravated damages can be awarded where the person who commits the harm has behaved poorly and, while generally not available for negligence actions, are available for trespass. Exemplary damages may be awarded, usually for actions where intention to do harm is proven. In some circumstances, damages can include an award for inconvenience.[25]
[24] Munro v Southern Dairies Ltd [1955] VLR 332 [335]
[25] Allan Anforth, Peter Christensen & Christopher Adkins, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017) [2.187.5]
17.In this case there were concurrent proceedings in the Supreme Court of the Australian Capital Territory for a period of time that traversed some issues of relevance to the tribunal proceedings. There are very limited circumstances where follow-on litigation such as that before the Tribunal can rely on findings from earlier or other proceedings, in the absence of a statutory basis to do so.[26] The Tribunal notes that the proceedings in the Supreme Court were for an urgent injunction initially heard ex-parte, followed by appeal proceedings on costs only. Given this, the Tribunal does not adopt the findings made by the Supreme Court (referred to at paragraph 7 above). However, the Supreme Court findings are considered in the Tribunal’s assessment of evidence.
Mr Chen’s contentions
Fence issue
[26] Caron Beaton-Wells, Private Enforcement of Competition Law in Australia – Inching Forwards’ (2016) 39(3) Melbourne University Law Review 681; Schenker AG and Schenker (NZ) Limited v Commerce Commissions [2013] NZCA 114
18.In his Amended Fence Dispute Application dated 10 August 2018, Mr Chen sought an order to repair the fence in terms that were largely agreed to by the parties (refer to paragraph 20 below). Mr Chen’s amended application attached a survey dated 9 April 2018 (second Milburn survey), by Brian Milburn and Associates, Consultant Surveyors, and Mr Chen proposed that the “center of the fence panel is at the surveyed boundary line” as shown in that survey, which was agreed to at the hearing by the Ghildyals. However, the Ghildyals had concerns about a similar fence dispute arising in the future, and at the hearing sought amended and further terms about the replacement fence to avoid this occurring, as set out later below (see paragraphs 30 to 31).
Damages issue
19.Mr Chen denied any liability for damages. His contentions are detailed in his written submissions and in his submissions made at hearing, including in his oral evidence. In short, Mr Chen contended that he had not trespassed, there was no nuisance, and that he had not been negligent. He contended that there was no “direct entry by the excavator” on to the Ghildyals’ land and it was “caused by the slippage of rock structures underneath the subsurface.”[27] Mr Chen contended that there was not an interference with the Ghildyals’ enjoyment of their land that was “substantial and unreasonable”.[28] In regard to the claim of negligence, Mr Chen contended that he did not cause the subsidence, that it was not foreseeable, and that he had taken reasonable measures to prevent it. In any case, Mr Chen contended that in having fully remedied the subsidence at his cost, no damages are due, and damages are not payable for mere inconvenience.
The Ghildyals contentions
Fence issue
[27] Exhibit C1 (Mr Chen’s Amended Response undated) page 1
[28] Exhibit C1 (Mr Chen’s Amended Response undated) page 2
20.By the hearing, the placement and nature of the replacement fence was agreed to by the Ghildyals, and Mr Chen agreed to re-survey the replacement fence at his expense once fully erected to ensure that it was on the boundary and within the required tolerance.[29] The single disputed issue in the fence dispute was the allowable tolerance for any replacement fence, so that the parties did not find themselves returning to the tribunal with a similar fence dispute in the near future.
Damages issue
[29] Transcript of proceedings 8 November 2018 pages 15-19
21.The Ghildyals’ Civil Dispute Application dated 10 August 2018 claimed damages in the sum of $25,000 which is the tribunal’s maximum limit for a damages award, plus interest from “the date of cost incurred” and reimbursement of any tribunal fees such as the (paid) fees for issue of subpoenas totalling $129 and the (unpaid) fee of $153 for the second day of hearing. The Tribunal determined at the hearing that the cost of the second day of hearing, being $153, was a cost payable by the Ghildyals since it was their damages claim that led to the expanded hearing time,[30] and that if successful this cost would be paid by Mr Chen to the tribunal. The Ghildyals claimed damages for loss of enjoyment of the deck and their land from 27 March 2018 to date, and also the costs of reports,[31] economic loss including the costs of alternative accommodation,[32] “stress, grief and suffering”,[33] and their time in dealing with the matters before the Tribunal.[34]
[30] Transcript of proceedings 8 November 2018 pages 6-7
[31] Amended Civil Dispute Application 10 August 2018 Attachment 29
[32] Amended Civil Dispute Application 10 August 2018 Attachment 30
[33] Amended Civil Dispute Application 10 August 2018 Attachment 31
[34] Amended Civil Dispute Application 10 August 2018 page 7, [51]
22.The report costs that they sought reimbursement for were as follows: [35]
(a)geotechnical work done by Douglas Partners Pty Ltd –– $2,612.50 including for Dilapidation Report (Invoice 166127) and $1,650 including for reporting (Invoice 165911);
(b)Lonergan Surveying Pty Ltd –– $1,034 including for Report (Invoice 0412) and $1,320 including for survey (Invoice 0411);
(c)John W Foxlee and Associates –– $440 for survey and certificate (Invoice 2280); and
(d)Tony Gray Building Services Pty Ltd $275 for building advice (Invoice 9 July 2018)
[35] Amended Civil Dispute Application 10 August 2018 Attachment 29
being a total of $7,331.50.
23.The costs of other accommodation they claimed were for three nights from 31 March 2018 to 3 April 2018 in the sum of $546.50 and another night in late May 2018 for $80,[36] being a total of $626.50. They claimed for parking while dealing with various aspects of the situation in the sum of $88.71,[37] and for their time. They also claimed the cost of the disputed fence that they had fully paid for, which appears to be the sum of $1,070.30.[38]
[36] Amended Civil Dispute Application 10 August 2018 Attachment 30
[37] Amended Civil Dispute Application 10 August 2018 Attachment 30
[38] Amended Civil Dispute Application 10 August 2018 Attachment 30
24.The basis for the damages claim was negligence and/or trespass and/or nuisance. The Ghildyals contended that Mr Chen had excavated into their property and/or caused an encroachment into their property without their consent. They contended that at its maximum the encroachment was 1.42 metres vertically and 3.95 metres deep.[39] They claimed that Mr Chen did not have the necessary planning approvals to undertake the excavation, and that the work Mr Chen undertook breached work safe requirements and standards,[40] including the Excavation Work Code of Practice approved under the Work Health and Safety (Excavation Work Code of Practice) Approval 2015.
Findings
Fence issue
[39] Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying ‘Partial Identification Survey 9 April 2018)
[40] Amended Civil Dispute Application 10 August 2018 pages 5-6, [47]-[51]
25.What is the most appropriate order to be made by the Tribunal under the Act? –– noting the parties agree on most elements of the new fence and the Tribunal has been asked to make a determination to this effect and about the disputed elements.
26.The survey prepared for the Ghildyals by John Foxlee, Registered Surveyor (Foxlee survey) advised that the existing fences, “[e]xcept for some minor regularities [sic] … are generally on the boundary line within accepted tolerances.”[41] The survey prepared for Mr Chen by Brian Milburn, Registered Land Surveyor, dated 10 January 2018 (first Milburn survey) concluded that the fence “encroached on [Mr Chen’s] property by approximately 10 centimetres.”[42] A third survey prepared by Lonergan Surveying did not dispute the surveyed boundary between the parties, and was prepared to identify the extent to which the excavated area encroached on the Ghildyals’ property.[43] It emerged during the hearing that the difference between the conclusions of the Foxlee survey and the first Milburn survey about whether the disputed fence was correctly located on the boundary concerned the acceptable tolerance for a fence of that nature (the disputed fence was capped lapped timber palings).[44]
[41] John W Foxlee & Associates Surveyor’s Certificate 29 March 2018
[42] Affidavit of Brian Milburn 1 November 2018 [4]-[5]
[43] Amended Civil Dispute Application 10 August 2018 Attachment 9 (Email from Lonergan Surveying 4 April 2018 6:52pm)
[44] Transcript of proceedings 8 November 2018 pages 70-71
27.Mr Chen raised that the ACT Planning & Land Authority provided information about regulations that allow a “boundary fence” to “have the centre of its panelling up to 25mm either side of the boundary”[45]: the Tribunal understands this information (a fact sheet dated August 2008) to refer to requirements under Schedule 1A of the Planning and Development Regulation 2008. That Schedule specifies tolerances to determine whether a development is exempt from requiring development approval or whether a development approval requires amendment.[46] However the application before the Tribunal concerns the repair of an existing fence and whether it should be replaced due to an alleged defect in its positioning in respect of the boundary, under the Act.[47] The Tribunal does not accept that the allowable tolerance for all fences as a matter of law is 25mm under the Act.
[45] Attachment to Fence Dispute Application 20 March 2018 (ACT Planning and Land Authority ‘Changes to the planning system’ August 2008 available at Planning and Development Regulation 2008 sections 20 and 35
[47] Amended Fence Dispute Application 10 August 2018; Common Boundaries Act 1981 sections 6 and 11
28.By the date of the hearing, the fence in dispute was no longer standing – it had either fallen down or been removed, and a temporary portable fence was in place.[48] At the date of the hearing a ‘block wall’ was completed on Mr Chen’s property near the boundary, and Mr Chen sought to have the replacement fence erected at his expense adjacent to this block wall on the boundary as shown in the second Milburn survey.[49] At the hearing, the placement and nature of the replacement fence was agreed to by the Ghildyals, and Mr Chen agreed to re-survey the replacement fence at his expense once fully erected to ensure that it was on the boundary and within the required tolerance.[50] The single disputed issue in the fence dispute was the allowable tolerance for any replacement fence so that the parties did not find themselves again in tribunal proceedings.
[48] Respondent’s Closing Submissions 10 December 2018 [8]
[49] Amended Fence Dispute Application Attachment A 10 August 2018
[50] Transcript of proceedings 8 November 2018 pages 15-19
29.In finding that the allowable tolerance for all fences is not 25mm in matters under the Act, it is illogical for the Tribunal to determine in these proceedings the exact tolerance for the life of a replacement fence not yet erected. The Tribunal’s order therefore sets out the tolerance of the replacement fence applicable to close of business 19 April 2020.
30.To provide guidance for the parties for any future fence disputes, the Tribunal finds that it would not have made an order to have the disputed fence, now not in place, be replaced, and would have dismissed Mr Chen’s initial Fence Dispute Application. Even if the tolerance for planning purposes is used as a guide, then the encroachment of the disputed fence was only 1.5cms beyond this tolerance and this is only in a part of the disputed fence: assuming the fence is 14cms wide and a tolerance of 2.5cms either side, then the fence could be 9.5cms over on Mr Chen’s property. Even though a part of the disputed fence was 11cms over into Mr Chen’s property (assuming a fence of 14cms width, then 3cms in the Ghildyals’ property) as measured from the centre of the capped lapped palings, in another part it was only 4cms over into Mr Chen’s property (so 10cms on the Ghildyals’ property). Mr Foxlee explained that the disputed fence was “running at a bit of an angle.”[51] Mr Foxlee also said that a timber fence has no set tolerance due to its ability to change,[52] as set out in more detail below. The Tribunal finds that the disputed fence presented a situation where the parties each suffered an advantage and disadvantage in its angled placement, and the deviation from the boundary of the disputed timber fence was not significant for either party.
[51] Transcript of proceedings 8 November 2018 page 76
[52] Transcript of proceedings 8 November 2018 page 69
31.Considering now the tolerance to be stated in the orders for the replacement fence, and applicable to 19 April 2020, the Tribunal notes that Mr Foxlee said that the tolerance for a timber fence is not set because it isn’t a robust structure like a brick wall –– it can move and warp, and indeed another survey on another day might find a different measurement of its proximity to the boundary line. It was on this basis that Mr Foxlee concluded that the disputed fence was generally on the boundary and within allowable tolerances.[53] Accepting Mr Foxlee’s evidence and given the agreed replacement fence will be a metal capped lapped timber paling fence of approximately 14cms width, the Tribunal orders that the parties work to a tolerance of approximately 11cms as measured from the centre of the lapped palings (7cms being approximately half of the fence width, plus 4cms being a tolerance suited to a non-robust fence, meaning that up to 11cms can be on each of the parties’ properties). The Tribunal notes that environmental circumstances can lead to a fence moving or changing over time and therefore does not make a determination that this is the tolerance for the replacement fence forever in the future, only to close of business 19 April 2020.
Damages issue
Trespass
[53]Transcript of proceedings 8 November 2018 pages 69-71
32.The Ghildyals must prove on the balance of probabilities that Mr Chen trespassed on their land. This requires proof that Mr Chen intentionally or negligently entered the Ghildyals’ property or directly caused a physical matter to come into contact with their property. In the Tribunal’s view, this test in this case can be reduced to the question of whether the excavator entered the Ghildyals’ property. The Tribunal finds that there is insufficient evidence that the encroachment onto the Ghildyals’ property was a result of an entry by the excavator onto the Ghildyals’ property.
33.The principal contractor, Mr Richard Kozjak of Sentient Pty Ltd, and the excavator operator, Mr Edmund Krizaic of Ortus Projects Pty Ltd, both said that they did not excavate beyond Mr Chen’s boundary, or indeed under the fence.[54] Mr Chen also stated this in his oral evidence.[55] His email to the Ghildyals dated 26 March 2018 appears to be contradictory to this evidence[56] but he provided some explanation of this.[57] In any case, the email does confirm Mr Chen’s intention to only excavate to the survey line –– so, within his property –– even if it is provocative, given the fence dispute remained unresolved at that time. The fact that Mr Chen thought he had planning approval to excavate to the common boundary supports a finding that his intention was not to trespass, just to do what he thought he lawfully was approved to do on his own property. It turned out that he was not approved to excavate but this does not prove trespass; however it is relevant to the issue of whether there was negligence as set out later (see paragraphs 36 to 46, below). The propping of the disputed fence does not provide evidence of trespass, since this propping was required even to excavate on the fence line.[58] None of the experts were able to identify the exact line of excavation due to the effects of the slippage and the passage of time when they attended, and so were not able to contradict Mr Chen’s submission that the excavator did not enter the Ghildyals’ property.[59]
[54] Transcript of proceedings 9 November 2018 pages 263 and 297
[55] Transcript of proceedings 9 November 2018 page 342
[56] Exhibit C16
[57] Transcript of proceedings 9 November 2018 pages 344-346
[58] Transcript of proceedings 9 November 2018 page 312
[59] Transcript of proceedings 8 November 2018 page 59
34.While the Supreme Court stated that it found there was a trespass (refer to paragraph 7, above), it is significant that this finding was made on the limited evidence before it for the purposes of an urgent injunction, which was initially heard ex-parte. The Tribunal is not bound by this finding.
35.While not finding trespass, the Tribunal accepts that the survey conducted by Matt Stevenson on 4 April 2018[60] shows that face of the excavation area by then was over into the Ghildyals’ property at a depth of 3.95 metres and a distance of 1.42 metres at its maximum.[61] Also, it shows that the face of the excavation area was over into the Ghildyals’ property along most of the boundary –– for example, 43cms at one end of the common boundary.[62] This latter fact, in the Tribunal’s view, shows that the effects of any slippage were not just concentrated in one part of the excavation.[63] Mr Murray said that the slippage happened on a “portion” of the excavation line,[64] but the Tribunal finds that its effects were more widespread than that one portion, given the encroachment on to the Ghildyals property is along almost the entire face of the excavation area, even allowing for any trimming. In regard to the level of trimming, the report of ACT Geotechnical Engineers Pty Ltd dated 28 March 2018 recommended significant care, for example batter cleaning on a daily basis,[65] which the Tribunal finds on the evidence did not occur (refer to paragraphs 54 to 55 below). All of the matters raised in this paragraph do not prove trespass, but are relevant to whether there was negligence.
Negligence
[60] Transcript of proceedings 8 November 2018 page 58 [11]
[61] Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying ‘Partial Identification Survey’ 9 April 2018)
[62] Transcript of proceedings 8 November 2018 page 60
[63] Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying Partial Identification Survey 9 April 2018); Transcript of proceedings 8 November 2018 page 60
[64] Transcript of proceedings 8 November 2018 page 92
[65] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2
36.Negligence is a breach of duty that results in damages. The Tribunal finds that Mr Chen breached his duty of care which caused harm to the Ghildyals, and that he owes damages to them.
37.The test is that of a “reasonable person in [Mr Chen’s] position who was in possession of all the information that [Mr Chen] either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.”[66] As a neighbour, and in his capacity as a licensed owner/builder, Mr Chen owed a duty of care to the Ghildyals. Mr Chen completed the owner/builder course and indeed he stated that he excelled in this course.[67] Mr Chen had experts advising him. Mr Chen owed a standard of care above that of the ordinary person, above that of a mere customer of a building company. As the licensed owner/builder, he had a duty to exercise sound judgment in managing the development which involved complying with requirements and seeking further advice from experts as required. Mr Chen is liable for the work undertaken by his contractors.
[66] Civil Law (Wrongs) Act 2002 section 42
[67] Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 2
38.The Tribunal finds that he breached his duty of care in that he excavated on the common boundary contrary to Rule 20 of the Single Dwelling Housing Development Code. As the building inspector advised in the letter to Mr Chen dated 27 September 2018 upon lifting the stop notice, the stop notice dated 31 August 2018 was issued because Mr Chen was undertaking “building work … without development approval [under] s53(1)(f) of the [Building Act 2004]”.[68] Mr Chen said in his oral evidence that he has come to realise that his original certifier, Mr Joseph Fekete of Canberra Region Building Certifiers, had incorrectly shown the application for development approval as exempt when it was subject to compliance with Rule 20: “The maximum cut or fill within 1.5m of side and rear boundaries is 1.5m.”
[68] Exhibit C15
39.After replacing his certifier, Mr Chen said that his amended plan was compliant, and it was works consistent with this compliant plan that had been done in recent months. While it is unfortunate if Mr Chen received a poor service from his certifier, he cannot use this as a defence to the Ghildyals’ claims against him. As the licensed owner/builder, Mr Chen is legally responsible for the work on his property: any liability in this case that arises from those work, and it is a matter for Mr Chen whether he pursues contractors for any liability they may have to him.
40.Mr Chen contended that the interference with the Ghildyals property was due to a natural occurrence –– that is, the slippage of the rock –– and not caused by Mr Chen’s actions. The legal test for causation in Australia has been well summarised by Justice Edelman writing extra-judicially. In summary, as he explains:
An event will only ever be a cause of an outcome if the event is necessary for the outcome. That is, causation requires that the outcome would not have occurred ‘but for’ the event.[69]
[69] Justice Edelman, “Understanding Causation and Attribution of Responsibility”: Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015 page 1
41.Justice Edelman explains that the ‘but-for’ test is moderated by the common-sense approach set out by Mason CJ in March v Stramare (E & MH) Pty Ltd[70] who regarded the ‘but-for test’ as inadequate in some situations: for example, where there are “two or more acts or events each of which would be sufficient to bring about the plaintiff’s injury.”[71] As Justice Edelman points out, a majority of the High Court adopted this ‘common-sense’ approach in Royall v The Queen (1991) HCA 27 and held that causation is a “question to be determined by [the jury] applying their common sense to the facts as they find them.”[72] He points out that overall, across Australia, statute law is incorporating the ‘but-for’ test into law: for example, see the Civil Law (Wrongs) Act 2002, where the ‘necessity’ test for causation is to be applied in negligence actions in the Australian Capital Territory.
[70] March v Stramare (E & MH) Pty Ltd [1991] HCA 12 [21]
[71] March v Stramare (E & MH) Pty Ltd [1991] HCA 12 [22]
[72] Royall v The Queen (1991) HCA 27 [17] quoting Campbell v The Queen (1981) WAR 286 per Burt CJ [290]
42.In this case, Mr Chen is responsible for a non-compliant excavation being undertaken, without adequate precautions, which resulted in a foreseeable slippage of soil and rock which caused harm to the Ghildyals. Rule 20 of the Single Dwelling Housing Development Code is stated above (at paragraph 38), and the associated criterion requires that “[c]ut and fill is limited so that [amongst other things] stability of the block and adjoining blocks” is achieved. A consequence of Mr Chen’s development being non-compliant with Rule 20 is that stability of the land being excavated was not achieved: no geotechnical report was done before the excavation began to guide the excavation works, and neither Mr Chen nor any of his witnesses could demonstrate that an adequate risk assessment of the excavation works had occurred. The slippage occurred on the same day that the excavation of the boundary was completed, so was proximate in time. ‘But for’ this non-compliant excavation, the slippage would not have occurred on the common boundary.
43.A person is not negligent for not taking precautions unless “the risk was foreseeable”, the risk was “not insignificant” and “in the circumstances a reasonable person in the person’s position would have taken those precautions.”[73] The Civil Law (Wrongs) Act2002 sets out further considerations when determining if the absence or nature of precautions supports a finding of negligence.[74] The Tribunal finds that the slippage was foreseeable, and that Mr Chen did not take reasonable precautions.
[73] Civil Law (Wrongs) Act 2002 sections 43 (1)(a), (b) and (c)
[74] Civil Law (Wrongs) Act 2002 sections 43 (2) and 44
44.The non-compliant excavation was substantial in its height and width, and undertaken on unstable land – “siltstone or silty sandstone” of “low and medium strength”.[75] It was undertaken without “adequate” risk assessment[76] as the WorkSafe ACT Commissioner pointed out. A reasonable person of Mr Chen’s skills and knowledge, and being advised by expert contactors, would have taken precautions. Mr Murray agreed that “there was no way of knowing” the slippage would occur,[77] and the Tribunal concludes from this that therefore preventive action was necessary. Presumably this is why Rule 20 exists, to prevent such slippages. Mr Murray stated that he was only involved after the slippage, and a slippage can be avoided by various means such as “reinforced shotcrete or bolting”, by installing “some sort of retaining structure”, and cutting further away from the boundary would “give yourself a bit of margin for … something potentially [happening]”.[78] Mr Renfrey stated that when the cut was proposed “geophysical advice” would be normally obtained, and various forms of preventative action taken: in the absence of these, he stated that “a steep high cut in fractured rock, which is prone to collapse, you just don’t do that sort of thing.”[79]
[75] Douglas Partners ‘Geotechnical Inspection Report’ 6 April 2018 page 4
[76] Transcript of proceedings 8 November 2018 page 126
[77] Transcript of proceedings 8 November 2018 page 107
[78] Transcript of proceedings 8 November 2018 page 87
[79] Transcript of proceedings 8 November 2018 page 111
45.The excavator operator appeared to the Tribunal to have limited skills for such a complex excavation. He said he had done cuts similar to the one done at Mr Chen’s property before;[80] yet Mr Renfrey stated that such a cut would normally be done differently.[81] The operator stated that he didn’t read geotechnical reports and didn’t read those available for Mr Chen’s work but relied on instructions from Mr Kozjak.[82] Mr Kozjak said that he was familiar with the Excavation Work Code of Practice which includes assessing and controlling for risks. Demonstrating his limited skills for an excavation of this nature, he said that he did a “visual risk assessment”[83], a “quite minimal” [84] assessment, before starting the excavation, which he incorrectly thought was adequate given the building had planning approval and he had the engineer’s drawings.[85] At best, Mr Kozjak made workers aware of the cut, the operator was in an enclosed cabin and he monitored the excavation as it was done.[86] In the Tribunal’s view, Mr Chen demonstrated poor judgement and a lack of common sense about the excavation, in that he blindly relied on others when he was the owner/builder. He said that he did not think he had to be familiar with the Code covering excavation,[87] and that he could not tell if there would be a slippage.[88] He thought that the planning approval gave him licence to proceed and he relied on “the system … the architect, the certifier and the government authority.”[89] He also obtained guidance from “[t]alking to my building friends.”[90]
[80] Transcript of proceedings 9 November 2018 page 257
[81] Transcript of proceedings 8 November 2018 pages 111-112
[82] Transcript of proceedings 9 November 2018 pages 257-258
[83] Transcript of proceedings 9 November 2018 page 300
[84] Transcript of proceedings 9 November 2018,page 301
[85] Transcript of proceedings 9 November 2018 page 302
[86] Transcript of proceedings 9 November 2018 page 292
[87] Transcript of proceedings 9 November 2018 page 330, [11]-[12]
[88] Transcript of proceedings, 9 November 2018, page 339
[89] Transcript of proceedings 9 November 2018 page 330
[90] Transcript of proceedings 9 November 2018 page 347, [22]-[23]
46.For the reasons above the Tribunal finds that Mr Chen was negligent. If the Tribunal is wrong about there being negligence by Mr Chen, damages are payable by Mr Chen because he caused a nuisance as set out below.
Nuisance
47.The Tribunal finds that Mr Chen caused a nuisance to the Ghildyals’ land in that Mr Chen caused subsidence of the Ghildyals’ land. The usual principles of law on causation apply in a nuisance action and, as set out above, Mr Chen caused the subsidence (see paragraphs 40 to 43). Even in the absence of a trespass, in doing the non-compliant excavation on the boundary Mr Chen removed the support for the Ghildyals’ land which caused it to subside: this is a common law nuisance of long-standing. This common law nuisance includes a removal of support for the Ghildyals’ land by the forces of nature which Mr Chen ought to have foreseen and guarded against.[91] In the case of Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSWLR 486 nuisance was found on the latter basis even though excavation work was carried out “in accordance with proper practice”,[92] it was not the sole cause of the subsidence, and there was no trespass: “the withdrawal of lateral support from land is an actionable nuisance for which strict liability attaches without proof of negligence.”[93]
[91] Holbeck Hall Hotel Ltd & Anor v Scarborough Borough Council [2000] QB 836
[92] Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSW LR 486 [489]
[93] Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSWLR 486 [493] citing Dalton v Angus (1881) 6 App. Cas. 740 [791]
48.The encroachment on to the Ghildyals’ land is not trivial. At 4 April 2018 it was 1.42 metres vertically, and a depth of 3.95 metres, and there was an encroachment along almost the entire excavation line –– a substantial encroachment.[94] Even on Mr Chen’s evidence it is 1 metre at its maximum distance –– Jeremy Murray in his oral evidence agreed with Mr Chen’s legal representative that the face of the cut was cleaned and trimmed as part of the remediation and this increased the encroachment on to the Ghildyals’ land.[95] The Tribunal finds that the batter cleaning and monitoring was not done as recommended (see paragraph 35, above); however even if one accepts that it was done as recommended, the encroachment remains substantial.
[94] Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying Partial Identification Survey 9 April 2018)
[95] Transcript of proceedings 8 November 2018 page 97
49.If the Tribunal is wrong about there being a nuisance caused by Mr Chen, damages are payable due to Mr Chen’s negligence as set out in paragraphs 36 to 46, above.
Damages
50.As set out above, in paragraphs 21 to 24, the Ghildyals claimed damages for interference with their enjoyment of the deck and their land from 27 March 2018 to date, economic loss being costs of reports totalling $7,331.50, the costs of alternative accommodation totalling $626.50 and parking costs of $88.71, “stress, grief and suffering”,[96] the cost of their time in dealing with the matters (unitemised), plus interest and any tribunal fees. They claimed the cost of the disputed fence that they had fully paid for. They also claimed that they lost $10,000 for landscaping that was delayed due to the subsidence and then the landscaper went in to liquidation without the Ghildyals receiving a refund.[97]
[96] Amended Civil Dispute Application 10 August 2018
[97] Transcript of proceedings 9 November 2018 page 236
51.In regard to interference with their enjoyment of their land, the disputed fence was observed to be missing in parts by the Ghildyals on 27 March 2018,[98] and the temporary fence was restricting their “access to the backfilled area [of their property]”, according to the Ghildyals.[99] The geotechnical engineer on 28 March 2018 recommended a 3 metre exclusion zone for workers, which he said in his oral evidence was short-lived.[100] But the temporary fencing establishing the 3 metre exclusion zone remained in place because WorkSafe ACT did not conclusively advise the Ghildyals that this was no longer required until the hearing.[101] There was evidence that the Ghildyals had workers at times within the exclusion zone and on the deck,[102] however the Tribunal does not regard such minimal and necessary access as overcoming the interference with their enjoyment of the land suffered by them. The report of ACT Geotechnical Engineers Pty Ltd dated 28 March 2018 stated that the deck was potentially undermined, and Mr Jeremy Murray explained in his evidence that this was because the slippage was within the zone of influence of one of the footings for the deck:[103] subsequently Mr Murray stated in his oral evidence that the deck, at the hearing date, was not undermined. [104] Mr Renfrey agreed that “[o]n the work I’ve done to date … there’s no structural damage” [105] to the deck or the house. Mr Kozjak stated that the remediated wall was better than the original planned wall because it is “tied back through into the building, it’s really strong.”[106] Mr Chen confirmed that some aspects of the remediation were above the standard of what was required.[107] So, on the evidence the Tribunal finds that the deck is now safe, and the props to the deck can be removed. But it remains the case that the Ghildyals have made limited use of their deck since 27 March 2018. The loss of the use of their land near the common boundary that was to be landscaped but was instead an excavation and works site, and the loss of the normal use of their deck, for nearly 10 months is not a trivial loss of enjoyment of their land.
[98] Amended Civil Dispute Application 10 August 2018 page 2, [21] and Attachment 12
[99] Amended Civil Dispute Application 10 August 2018 page 3, [46] and Attachment 28
[100] Transcript of proceedings 8 November 2018 page 89
[101] Transcript of proceedings 9 November 2018 pages 142 and 217-220
[102] Transcript of proceedings 9 November 2018 pages 237-240 and 289
[103] Transcript of proceedings 8 November 2018 page 98
[104] Transcript of proceedings 8 November 2018 page 101
[105] Transcript of proceedings 8 November 2018 page 90
[106] Transcript of proceedings 9 November 2018 page 317
[107] Transcript of proceedings 9 November 2018 page 342
52.Another aspect of the interference with their enjoyment of their land is that it is, at some level, ongoing. This results from it not being clear that the remediation work has been done as required. Mr Kozjak said that he had followed up with all the recommendations in the report of ACT Geotechnical Engineers Pty Ltd dated 28 March 2018, including trimming the face of the excavation on 31 March 2018.[108] He stated that cleaning the face meant that he “monitored it, and if I saw … any rocks that may have been loose … I would de-stabilise it and it would fall. But it … didn’t change that much, except for that one slippage.”[109] He completed the wall on 8 April 2018 and the backfill on 16 April 2018. He said that he called the geotechnical engineers about an extra slippage on 13 April 2018,[110] and that he ensured that the backfill left no voids around the material that fell due to the extra slippage.[111] He agreed that the geotechnical engineer did not witness him do this backfill, but thought it was not necessary for them to supervise this.[112]
[108] Amended Civil Dispute Application 10 August 2018 Attachment 27 (Affidavit of Richard Kozjak 11 July 2018) pages 6-8
[109] Transcript of proceedings 9 November 2018 page 290
[110] Transcript of proceedings 9 November 2018 page 287
[111] Transcript of proceedings 9 November 2018 pages 288-289
[112] Transcript of proceedings 9 November 2018 page 296
53.However, Mr Renfrey disputed that all the recommendations in the report by ACT Geotechnical Engineers Pty Ltd dated 28 March 2018 had been followed up. When considering whether all the recommendations were followed, the Tribunal notes that they included “[r]egular inspections by a geotechnical engineer of the batters … must be conducted on a weekly basis”,[113] but Mr Chen’s geotechnical engineers only attended, according to their own evidence, on 28 March 2018 and on 13 and 24 April 2018.[114] Mr Renfrey observed no spoon drain or bund as recommended,[115] the recommendation being “[a] spoon drain or bund should be constructed along the top edges of the batter.”[116] Mr Renfrey also disputed that the face was trimmed as recommended, the recommendation being “trimmed back at 1(H):1(V)” and “cleaned of loose material on a daily basis.”[117] He stated that he attended on 4, 9, 13 and 17 April 2018 and did not find what he expected, which would be “the existing face … not vertical anymore, had been cleaned enough that there was actually a slope on the face [and] the block in the face … tight, not … bits that were loose and half detached.”[118]
[113] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2
[114] Affidavit of Jeremy Murray 1 November 2018
[115] Transcript of proceedings 8 November 2018 page 146
[116] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2
[117] ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2
[118] Transcript of proceedings 8 November 2018 pages 146 and 148
54.Mr Renfrey stated that based on his observations “it was clear that the batters … hadn’t been properly cleared of material … a lot of rock … was never cleaned out from the back of the wall”,[119] and he was particularly concerned about material from the extra slippage that he observed on 13 April 2018 as shown in photos he and the Ghildyals had taken.[120] He described this material as “two tonnes of material, of boulder size, sitting in the gap between the wall and the rock face.”[121] This material was described as “nothing major” by Mr Kozjak when he emailed ACT Geotechnical Engineers Pty Ltd about inspecting it.[122] Mr Renfrey stated that this rock was not cleared out, which meant this material was buried in the backfill and in his view this raised a question about whether there were voids in the backfill. He explained that some of the areas to backfill were very narrow, so difficult to backfill; different backfill was used in different parts; it was “a tricky job”.[123] He said “I wouldn’t comment on the backfill placement, if I never witnessed it” and that, in reference to ACT Geotechnical Engineers Pty Ltd, “they’ve been given a drawing or they’ve been advised that that was done but haven’t been there to witness and confirm that.”[124] On this basis he raised a query about the effectiveness of the remediation and did a dilapidation report.[125] The Tribunal accepts the evidence of Mr Renfrey on this point, and finds that there is a reasonable doubt that the remediation work has been done as required. The Tribunal also notes that the Ghildyals may have no warranties available to them for the remediation work.
[119] Transcript of proceedings 8 November 2018 pages 147 and 148]
[120] Transcript of proceedings 8 November 2018 page 145, referring to Exhibit G1
[121] Transcript of proceedings 8 November 2018 page 145
[122] Exhibit C13 ( Email from Mr Kozjak to Jeremy Murray 12 April 2018 8:44am)
[123] Transcript of proceedings 8 November 2018 page 145
[124] Transcript of proceedings 8 November 2018 page 149
[125] Exhibit G2 (Douglas Partners Dilapidation Report, Douglas Partners 3 May 2018)
55.Mr Murray said that the slippage happened on a “portion” of the excavation line,[126] but the Tribunal finds that its effects are more widespread than that one portion, given the encroachment onto the Ghildyals’ property is along almost the entire face of the excavation area (see paragraphs 35 and 48). If Mr Chen submits he didn’t excavate into the Ghildyals’ property, which the Tribunal accepts, then the encroachments along the rest of the excavation line must be due to the effects of the slippage. Yet Mr Murray stated that the focus of remediation was only on one portion, with different backfill being used in other parts of the remediation,[127] which raises further concerns about the effectiveness of the remediation.
[126] Transcript of proceedings 8 November 2018 page 92
[127] Transcript of proceedings 8 November 2018 pages 93-94
56.The Tribunal awards $2,000 compensation to each of the Ghildyals for interference with the enjoyment of their land.
57.The Tribunal accepts the Ghildyals claim for the costs of reports totalling $7,331.50, the costs of alternative accommodation totalling $626.50 and parking costs of $88.71. Mr Chen raised that the reports were costs associated with the proceedings. However, the Tribunal finds that they are costs associated with the Ghildyals engaging with Mr Chen about remediation works, having lost trust in Mr Chen and his experts and contractors. Mr Murray disagreed with Mr Renfrey that a dilapidation survey was required because he disputed that anything further would happen due to the slippage and remediation; however he acknowledged that the report would assist if “you’re worried that there’s going to be subsidence from the backfill.”[128] The Tribunal finds that the Dilapidation Report was required (refer to paragraph 54, above).
[128] Transcript of proceedings 8 November 2018 page 106
58.The cost of the Ghildyals’ time in dealing with the remediation and related issues is unspecified, with no details of the basis for this claim provided,[129] and is not supported by the Tribunal. Likewise, the claim that they lost $10,000 for landscaping is not evidenced, so is not supported by the Tribunal.
[129] Transcript of proceedings 9 November 2018 page 251
59.It is clear from the evidence that the Ghildyals suffered inconvenience and distress from 27 March 2018 due to what has occurred, and the Supreme Court also made a similar finding. Mr Kriziak said that he observed Mr Ghildyal “trying to stop the trucks”[130] and “yelling out ‘Stop’”,[131] and Mr Kozjak gave evidence that Mr Ghildyal “blared out music”,[132] all of which the Tribunal regards as signs of inconvenience and distress. The Ghildyals said that they had tried to discuss their concerns with many of the workers on the site, but this was not effective, which added to their inconvenience and distress. The WorkSafe ACT officer advised Mr Kozjak that Mrs Ghildyal was taking Mr Ghildyal for medical assistance on 29 March 2018.[133] The Ghildyals organised alternative accommodation on two occasions to assist manage their distress. The Tribunal notes that the Ghildyals lost trust in Mr Chen and his contractors and felt they were in a hostile situation, which added to their inconvenience and distress. The Tribunal can understand this, given Mr Chen’s refusal to show them his plans (he said for personal reasons): in the Tribunal’s view it is remarkable, given the scale of Mr Chen’s development, that the Ghildyals were reduced to making a freedom of information application to obtain the plans. Also of concern to the Ghildyals was that Mr Chen began the excavation and undermined the disputed fence, leaving it vulnerable to collapse, while his fence dispute application was before the Tribunal. Another understandable concern of the Ghildyals is that the experts Mr Chen was relying on to meet the Ghildyals’ concerns were being paid for by Mr Chen and were not independent.
[130] Transcript of proceedings 9 November 2018 page 261
[131] Transcript of proceedings 9 November 2018 pages 265
[132] Transcript of proceedings 9 November 2018 page 296
[133] Amended Civil Dispute Application 10 August 2018 Attachment 27 (Affidavit of Richard Kozjak 11 July 2018) [17]
60.In some circumstances, damages can include an award for ‘inconvenience’ and ‘distress’. The law on whether there can be damages payable for inconvenience and distress as a result of a breach of contract or a wrong, without the limits of section 35 of the Civil Law (Wrongs Act) 2002 applying, is complex. It is well set out by Anforth, Christensen and Adkins.[134] In summary, it is payable and not subject to the limits of section 35 of the Civil Law (Wrongs Act) 2002 for certain breaches of residential tenancy agreements, and where there is an intentional wrong or exemplary or aggravated damages are made out,[135] and it may be payable under the tort of nuisance.[136] However, this issue is not necessary to decide in this case because the Ghildyal’s inconvenience and related circumstances have been considered in the award of damages for loss of amenity.
[134] Allan Anforth, Peter Christensen & Christopher Adkins, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017) [2.187.5]
[135] NSW v Ibbett [2005] NSWCA 445
[136] Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWC 230 [102] per Slattery J
61.The Tribunal dismisses the Ghildyals’ claim for aggravated damages. While Mr Chen has been negligent and demonstrated a lack of common sense, he has not behaved so poorly as to warrant such damages. The Tribunal dismisses the Ghildyals’ claim for exemplary damages because the harm caused to them by Mr Chen was not intentional.
62.The Tribunal dismisses the Ghildyals’ claim for the cost of the disputed fence, since Mr Chen is paying fully for the replacement fence.
63.The Tribunal awards interest, being $602.67, on the total sum of the damages, being $12,046.71, with interest calculated from 27 March 2018 to the date of these Orders. The Tribunal also orders that Mr Chen reimburse the Ghildyals the subpoena fees of $129, and pay to the Tribunal the fee for the second day of the hearing, being $153, given these fees were necessary for the Ghildyals’ application to proceed.[137]
[137] ACT Civil and Administrative Tribunal Act 2008 section 48(2)(ii)
………………………………..
Senior Member L Beacroft
Attachment A
BRIAN MILBURN AND ASSOCIATES DATE 9-04-18
CONSULTANT SURVEYING OUR REF 2123
55 BIMBERI CRES PALMERSTON
ACT 2913 (PH. FAX: 62412543, 0407 432 593)
Attention: Y J Chen
I have surveyed the land being BLOCK 7 SECTION 34 DIVISION of LAWSON, DISTRICT of BELCONNEN in the Australian Capital Territory, having an area of 570 square metres and appearing in Deposited Plan 11268.
Erected thereon fronting BELLBIRD LOOP is a concrete block wall, the position of which in relation to the boundaries is as shown on the diagram.
There are no apparent proposed easements affecting the subject land shown on DP11268.
This survey is for IDENTIFICATION purposes only.
NOTE ALL BLOCKWORK CLEAR OF BOUNDARY
TB DENOTES DISTANCE TO BOUNDARY FROM TOP OF WALL BB DENOTES DISTANCE TO BOUNDARY FROM BASE BLOCK BW DENOTES BLOCK WALL
HEARING DETAILS
FILE NUMBER:
XD 325/2018
PARTIES, APPLICANT:
Yijuan Chen
PARTIES, RESPONDENT:
Amit Ghildyal and Reena Ghildyal
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
Aulich Civil Law
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member L Beacroft
DATES OF HEARING:
8 and 9 November 2018
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