Chen v Ghildyal; Ghildyal v Chen - [2019] ACAT 25

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 27
Schenker 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, 7^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACAT 25
Decision Date: 21 February 2019

CaseChat Overview and Summary

This case involved a dispute between neighbours, Mr Chen and the Ghildyals, over the subsidence of land caused by excavation work undertaken by Mr Chen on his property. The Ghildyals alleged that the excavation caused a collapse of the land, which encroached on their property, and sought damages for trespass, nuisance, and negligence. The case was heard by the ACT Civil and Administrative Tribunal (the tribunal). The tribunal had to decide two main issues. Firstly, it had to determine the most appropriate order to be made by the tribunal under the Common Boundaries Act 1981 (the Act). Secondly, it had to decide if Mr Chen was liable to pay the Ghildyals damages and, if so, on what basis and in what sum. The tribunal found that Mr Chen was negligent and that he owed damages to the Ghildyals. It found that he breached his duty of care which caused harm to the Ghildyals. The tribunal also found that Mr Chen caused a nuisance to the Ghildyals' land in that he caused subsidence of their land. The tribunal awarded the Ghildyals $2,000 compensation for interference with the enjoyment of their land, and ordered Mr Chen to pay the Ghildyals $12,778.38 in damages, including interest.

Orders