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Dhawan v Jamiel (Appeal)

Dhawan v Jamiel (Appeal)

Case [2020] ACAT 25 14 April 2020

Appeal

Jurisdiction

Admissibility of Evidence

Res Judicata

Civil Litigation & Procedure

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ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DHAWAN v JAMIEL (Appeal) [2020] ACAT 25

AA 32/2019 (XD 1519/2018)
AA 36/2019 (XD 1519/2018)
Catchwords: APPEAL – civil dispute – alleged errors of fact and law – whether the original tribunal failed to consider evidence – whether the original tribunal relied on false statements – whether the original tribunal erred in its application and assessment of depreciation – whether an appellant can claim interest on an appeal
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7,19, 21, 26, 82

Cases cited:Amer v Eriksson [2019] ACAT 108
August v Commissioner of Taxation [2013] FCAFC 85
CDJ v VAJ [1998] HCA 67
Fox v Percy (2003) 214 CLR 118
Jovanovic v R [2015] ACTCA 29
Leighton v The Queen [2017] ACTCA 55
Mulholland v Mitchell [1971] AC 666
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Powley & Anor v Reynolds [2018] ACAT 103
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Verma & Anor v Reynolds [2018] ACAT 89
Whisprun Pty Ltd v Dixon [2003] HCA 48
Water Board v Moustakas (1988) 180 CLR 491

Appeal Tribunal: President G Neate AM

Senior Member K Katavic

Date of Orders: 14 April 2020
Date of Reasons for Decision: 14 April 2020

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL) AA 32/2019
BETWEEN:

CHANDER PARKASH DHAWAN
Appellant

AND:
YARUB JAMIEL
Respondent

APPEAL TRIBUNAL: President G Neate AM
Senior Member K Katavic

DATE:14 April 2020

ORDER

The Tribunal orders that:

The appeal is dismissed.
Mr Dhawan is to pay to Dr Jamiel the amount of $7,066 within 28 days of this order.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL) AA36/2019
BETWEEN:
YARUB JAMIEL
Appellant

AND:

CHANDER PARKASH DHAWAN

Respondent

APPEAL TRIBUNAL: President G Neate AM
Senior Member K Katavic

DATE:14 April 2020

ORDER

The Tribunal orders that:

The appeal is dismissed.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

Dr Yarub Jamiel and Mr Chander Parkash Dhawan are neighbours. Dr Jamiel made a claim against Mr Dhawan for damage to his synthetic grass and driveway. Mr Dhawan lodged a counterclaim against Dr Jamiel for the recovery of money associated with the construction of a retaining wall, relocation of plants and removal of a pipe.
On 23 September 2019, a Senior Member of the ACT Civil and Administrative Tribunal (the Original Tribunal) ordered that Mr Dhawan pay Dr Yarub Jamiel the sum of $7,066 for damage caused by Mr Dhawan to Dr Jamiel’s driveway and synthetic grass and for the cost of Dr Jamiel filing his application in the Tribunal. The Original Tribunal adopted the references T1 and T2 to describe various areas on Dr Jamiel’s land which were set out in a map at figure 7 of Mr Dhawan’s witness statement dated 28 May 2019. This Appeal Tribunal adopts the same references…

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.

Continue reading Dhawan v Jamiel (Appeal)

Details

AGLC: Dhawan v Jamiel (Appeal) [2020] ACAT 25
Case: [2020] ACAT 25
Decision Date: 14 April 2020

CaseChat Overview and Summary

The appeal, brought by Mr Dhawan against Dr Jamiel, was heard before the Appeal Tribunal which had to decide on alleged errors of fact and law by the Original Tribunal. The issues included whether the Original Tribunal failed to consider evidence, whether it relied on false statements, and whether it erred in its application and assessment of depreciation. Additionally, the tribunal had to determine if an appellant can claim interest on an appeal.

The Appeal Tribunal found that the Original Tribunal did not fail to consider evidence, as it had heard oral evidence from two experts who opined on the condition of the synthetic grass, which was preferred over Mr Dhawan’s photograph. The Tribunal held that it was open to the Original Tribunal to conclude that Mr Dhawan had failed to properly rectify the damage. Regarding the videos submitted on a USB, the Appeal Tribunal found that the Original Tribunal's request for a copy of the USB did not prevent it from considering the content, as it had been misplaced and the request was made in a reasonable timeframe. The Appeal Tribunal also rejected Mr Dhawan’s contention that the Original Tribunal relied on false statements, finding that the evidence was not false but rather different from that presented by Mr Dhawan. Finally, the Appeal Tribunal found no error in the Original Tribunal's assessment of depreciation and held that an appellant cannot claim interest on an appeal.

The Appeal Tribunal dismissed the appeal and ordered Mr Dhawan to pay Dr Jamiel the sum of $7,066 within 28 days of the order.

Orders

Orders of the court

AA 32/2019

The Tribunal orders that:

The appeal is dismissed.

Mr Dhawan is to pay to Dr Jamiel the amount of $7,066 within 28 days of this order.

AA36/2019

The Tribunal orders that

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For damage to the area located on the verge, the Original Tribunal awarded a total amount of $5,400 for the replacement of 53 driveway tiles, discounted to $4,320 to account for its finding of 20% contributory negligence on Dr Jamiel’s part. Subject to our findings below regarding the 20% contributory negligence, the Appeal Tribunal is not satisfied the Original Tribunal’s award of damages for 53 tiles was in error. Did the Original Tribunal fail to consider evidence? – Grounds 2, 3, 6 and 7 Mr Dhawan submitted that a photograph taken by him in or around April/May 2017[18] depicted satisfactory rectification work to T1 and did not show any damaged tiles (ground 2). He made the same submission in relation to ground 7. He also submitted that the frequency with which he observed various tradespeople and utilities using the driveway would cause damage and this had not been taken into account by the Original Tribunal. Mr Dhawan did not call any witnesses to give oral evidence. [18] Mr Dhawan’s response and counterclaim dated 15 February 2019, page 12 Dr Jamiel submitted that two of his witnesses, Mr Mahmoud Al-Smadi and Mr Benjamin Palmer Jones-Gerholt, gave evidence before the Original Tribunal regarding the damage to the synthetic grass and the inadequacy of the repair work carried out on Mr Dhawan’s behalf. Mr Dhawan characterised that oral evidence as “false statements” (a contention which is addressed below).[19] Dr Jamiel also submitted that the tiles were broken in a lineal direction consistent with the direction of water flow from Mr Dhawan’s property and the resultant erosion beneath the synthetic grass and to the concrete. [19] See paragraphs [63] to [76] The photograph relied upon by Mr Dhawan does not depict with any precision the detail asserted by him. He did not call any witnesses to corroborate the condition of the synthetic grass. On that point, Mr Dhawan submitted that “Peter”, the tradesperson he engaged to carry out the rectification work, was not available to give evidence before the Original Tribunal due to personal reasons. The Original Tribunal was left in the position of hearing oral evidence from two experts as to the condition of the synthetic grass after Mr Dhawan’s attempt at rectification and give an opinion as to the cause of the damage against Mr Dhawan’s photograph. The Original Tribunal did not fail to consider Mr Dhawan’s evidence, it simply preferred the other oral evidence. The Appeal Tribunal is satisfied, in those circumstances, that it was open to the Original Tribunal to conclude Mr Dhawan failed to rectify the damage and to prefer the oral evidence given by Mr Al-Smadi and Mr Jones-Gerholt. Mr Dhawan submitted that the Original Tribunal failed to consider videos submitted on a USB on 3 July 2019 (grounds 3 and 6) because the Original Tribunal requested a copy of the USB from Mr Dhawan on 19 September 2019 as it had been misplaced. He submitted the Original Tribunal could not have considered it because it was requested too close to the time the decision was handed down.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Dhawan v Jamiel (Appeal) [2020] ACAT 25

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Cases cited in this decision · 14 of 14 shown

Amer v Eriksson
[2019] ACAT 108 Para 2

…g, the Appeal Tribunal must consider whether there was an acceptable reason why it was not relied upon at that time.[17] [10] Amer v Eriksson [2019] ACAT 108 [11] CDJ v VAJ [1998] HCA 67 at [111] [12] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14]…
Powley & Anor v Reynolds
[2018] ACAT 103 Para 5

…ether the Tribunal has jurisdiction in relation to a civil dispute application, a claim for interest is to be disregarded. [37] [2018] ACAT 89 [38] [2018] ACAT 103…
Verma & Anor v Reynolds
[2018] ACAT 89 Para 5

…n order to decide whether the Tribunal has jurisdiction in relation to a civil dispute application, a claim for interest is to be disregarded. [37] [2018] ACAT 89 [38] [2018] ACAT 103…
Leighton v The Queen
[2017] ACTCA 55 Para 2

…019] ACAT 108 [11] CDJ v VAJ [1998] HCA 67 at [111] [12] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14] Mulholland v Mitchell [1971] AC 666 [15] Jovanovic v R [2015] ACTCA 29 at [22] [16] August v Commissioner of Taxation [2013] FCAFC 85 at [119] […
Jovanovic v The Queen
[2015] ACTCA 29 Para 2

…xation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14] Mulholland v Mitchell [1971] AC 666 [15] Jovanovic v R [2015] ACTCA 29 at [22] [16] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [17] Jovanovic v R [2015] ACTCA 29 at [22]…
August v Commissioner of Taxation
[2013] FCAFC 85 Para 2

…lied upon at that time.[17] [10] Amer v Eriksson [2019] ACAT 108 [11] CDJ v VAJ [1998] HCA 67 at [111] [12] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14] Mulholland v Mitchell [1971] AC 666 [15] Jovanovic v R [2015] ACTCA 29 at [22] [16] August v…
Park v Brothers
[2005] HCA 73 Para 7

…st) Pty Ltd (1978) 139 CLR 231, 241 per Barwick CJ [40] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73 [41] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon [2003] HCA 48 at [51]-…
Whisprun Pty Ltd v Dixon
[2003] HCA 48 Para 7

…[41] [39] Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231, 241 per Barwick CJ [40] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73 [41] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Water Board v Moustakas (1988…
Fox v Percy
[2003] HCA 22 Para 25

…overtible evidence pointing decisively to error on the part of the Original Tribunal in relying upon its impression of the witnesses.[23] [23] See: Fox v Percy (2003) 214 CLR 118…
CDJ v VAJ
[1998] HCA 67 Para 2

…sider whether there was an acceptable reason why it was not relied upon at that time.[17] [10] Amer v Eriksson [2019] ACAT 108 [11] CDJ v VAJ [1998] HCA 67 at [111] [12] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14] Mulholland v Mitchell [1971]…
Water Board v Moustakas
[1988] HCA 12 Para 7

…Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73 [41] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon [2003] HCA 48 at [51]-[52]…
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd
[1978] HCA 8 Para 7

…vidence below then it cannot be raised for the first time on appeal .[41] [39] Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1978) 139 CLR 231, 241 per Barwick CJ [40] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73 [41] Suttor v Gundow…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 7

…ck CJ [40] Whisprun Pty Ltd v Dixon [2003] HCA 48 at [52], also cited with approval in Park v Brothers [2005] HCA 73 [41] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon [2003] HCA 48 at [51]-[52]…
[1971] AC 666
[1971] AC 666 Para 2

…[12] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [13] Leighton v The Queen [2017] ACTCA 55 at [29] [14] Mulholland v Mitchell [1971] AC 666 [15] Jovanovic v R [2015] ACTCA 29 at [22] [16] August v Commissioner of Taxation [2013] FCAFC 85 at [119] [17] Jovanovic v R [2015] ACTCA 29 at [22]…

Legislation cited in this decision · 1

ACT Civil and Administrative Tribunal Act 2008 (ACT)
19, 21, 26, 7, 82 7 mentions (from Para 1)