CHYB & DAMIANI (Civil Disputes) - [2010] ACAT 13

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHYB v DAMIANI (Civil Disputes) [2010] ACAT 13

XD 732 of 2009

Catchwords: CIVIL DISPUTES – nuisance application
Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT)
Case Law:Pittar v Alverez (1916) 16 SR (NSW) 618
Munro v Southern Dairies Ltd (1955) VLR 332
Victoria Park Racing and Recreation Grounds v Taylor (1937) HCA 45
Bathurst City Council v Saban (1985) 2 NSWLR

Raciti v Hughes (1995) 7 BPR 14,837
Allen v Gulf Oil Refining Ltd (1981) AC 1001
Alfreds case (1610) 77 ER 816
Gartner v Kidman (1962) 108 CLR 12

Tribunal:Mr P Thompson Member

Date of Orders:  1 September 2009
Date of Reasons for Decision:   23 March 2010
AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 732 of 2009
BETWEEN:  SYLWESTER CHYB
Applicant

AND:
MAURIZIO DAMIANI
Respondent

Tribunal:Mr P Thompson, Member

Date:  1 September 2009
ORDER
1.      See undertakings on file.
2.      No order made except to adjourn these proceedings.
3.      Liberty to restore to the list on 7 days notice by either party.
4.      Subpoenaed documents can be copied by either party.

………..……………………………..
Mr P Thompson
Member
REASONS FOR DECISION
1.On 16 July 2009, Dr Sylwester Chyb filed a Nuisance Application in the Tribunal in which he named his neighbour, Mr. Maurizio Damiani as the respondent.
2.In his application, Dr Chyb, who resides at 75 La Perouse Street, Griffith, alleged that Mr. Damiani, who then resided at 73 La Perouse Street, Griffith, had, shortly after the Chybs moved into their new home, “embarked on an unprovoked and malicious campaign of harassment against my family.”
3.According to Dr Chyb’s application, there were four issues that had caused, or in some cases, continued to cause nuisance to him and his family. Those issues were stated to be:

1.       noise from the pool equipment and reverse cycle unit located opposite our living spaces,
2.       external lights on the SE and NE walls of the Damiani’s house which face our property,
3.       Illegal development – cubbyhouse on a raised platform surrounded by raised decking,
4.       Mr. Damiani taking photographs of us from cubbyhouse and and [sic] his house.

4.The details of each of the four issues forming the basis of the Nuisance Application are fully set out in the application, and will be dealt with later.
5.Dr Chyb went on to state that as a result of the above actions of Mr. Damiani:
...we have suffered significant loss of quality of life and needed to involve government agencies to help us resolve the situation. When we thought the noise issue was addressed, Mr. Damiani switched to harassing us with external lights. When this was resolved by the fine, he went back to subjecting us to noise. Both my wife and myself sought professional medical advice to help us deal with the stress caused by behaviour of Mr. Damiani.

6.The remedies sought by Dr Chyb as set out in his application were:

1. Relocate the pool equipment and reverse cycle…

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: [2010] ACAT 13
Decision Date: 1 September 2009

CaseChat Overview and Summary

This case involves a dispute between neighbours, Dr Sylwester Chyb and Mr Maurizio Damiani. Dr Chyb filed a Nuisance Application against Mr Damiani, alleging that he had embarked on a campaign of harassment against his family, causing significant loss of quality of life. The issues raised in the application were noise from the pool equipment and reverse cycle unit, external lights on the Damiani's house, an allegedly illegal cubbyhouse, and photographs taken by Mr Damiani. Dr Chyb sought various remedies and monetary damages.

The legal issues the court was required to decide were whether the actions of Mr Damiani constituted a nuisance and if so, what remedies should be granted. The court had to consider the evidence presented by both parties, including the efforts made by Mr Damiani to address the concerns raised by Dr Chyb.

The court found that while Mr Damiani's actions may have caused some disturbance to Dr Chyb and his family, they were not malicious or deliberate. The court accepted that Mr Damiani had taken reasonable steps to address the issues raised by Dr Chyb, including modifying the external lights and enclosing the pool equipment. The court also found that there was insufficient evidence to support Dr Chyb's claim for damages.

The final orders made by the court were that Mr Damiani would give undertakings to turn off the pool pump outside certain hours, soundproof the sides of the property, and not use the side lights of the property. The matter was adjourned generally, and the parties were advised that they could return to the Tribunal if there was a proven breach of the undertakings. The court declined to award damages to Dr Chyb due to insufficient evidence.

Orders