Icon Water Limited v Muir - [2018] ACAT 75

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ICON WATER LIMITED v MUIR & ANOR (Civil Dispute) [2018] ACAT 75

XD 629/2017
Catchwords: CIVIL DISPUTE – claim for unpaid water supply services and sewerage services to commercial units registered in respondent’s sole name in accordance with provisions of the Utilities Act 2000 – services made available for provision of connection services – commercial units not physically connected to the water or sewerage network – water and sewerage network connected to common property of Unit Plan 328 – commercial units using the facilities in common property – Standard Customer Contract approved by Independent Competition and Regulatory Commission an enforceable contract – Independent Competition and Regulatory Commission set the applicant’s water and sewerage charges and the tariff structure of water and sewerage charges in accordance with Independent Competition and Regulatory Commission Act1997, ACT Government Policy and National Water Initiative Pricing Principles – whether unfair that owner be required to contribute to the Territory’s water and sewerage network where its use is limited

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 16, 17, 18
Independent Competition and Regulatory Commission Act 1997 ss 7, 19L
Unit Titles Act 2001 ss 34, 35
Unit Titles (Management) Act 2011, ss 19, 20, 22, 23, 24

Utilities Act 2000 ss 3, 4, 11, 12, 13, 14, 87, 88, 89, 90, 91, 92

Subordinate
Legislation cited: Court Procedures Rules 2006
Water and Sewerage Network Boundary Code
ACTEW Corporation Water and Sewerage Service and Installation Rules

Tribunal:                  Presidential Member E Symons
Date of Orders:  27 July 2018
Date of Reasons for Decision:         27 July 2018
AUSTRALIAN CAPITAL TERRITORY        )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 629/2017

BETWEEN:
ICON WATER LIMITED
Applicant

AND:
DAVID MUIR
First Respondent
THE OWNERS CORPORATION – UNITS PLAN NO 328
Third Party

TRIBUNAL:Presidential Member E Symons

DATE:27 July 2018

ORDER

The Tribunal orders that:

1.Judgment for the applicant in the sum of $7,695.68 plus interest on that amount calculated in accordance with the Court Procedures Rules 2006 from 29 April 2017 to date, $527.80, and the filing fee of $290.00.
2.The respondent pay to the applicant the judgment monies in order 1 in the sum of $8,513.48 by close of business 27 September 2018.
3.The respondent’s counter claim is dismissed.
4.The Third Party claim is dismissed.

………………………………..
Presidential Member E Symons

REASONS FOR DECISION

1.Icon Water Limited (applicant) is a water and waste water public utility owned by the ACT Government. The applicant owns and manages the water and wastewater business and assets in the Australian Capital Territory.
2.David Muir (respondent) was at all material times the registered proprietor of Units 35, 36, 37 and 38 in Units Plan 328 (UP 328) at 59-61 Wollongong Street Fyshwick (the units).
3.The applicant filed a debt application (application) against the respondent for $7,695.68 plus interest[1] and costs in respect of charges payable by the respondent for water supply services and sewerage services provided in…

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: [2018] ACAT 75
Decision Date: 27 July 2018

CaseChat Overview and Summary

Icon Water Limited, the provider of water and sewerage services, brought an action against the respondent, Muir, to recover unpaid charges for water and sewerage services supplied to commercial units that were registered in Muir’s sole name. The services were provided in accordance with the Utilities Act 2000. The commercial units were not physically connected to the water or sewerage network but were connected to common property of Unit Plan 328. The services were used by the commercial units through the facilities in the common property. The dispute centred on whether it was fair for the respondent to be required to contribute to the Territory’s water and sewerage network where the use of the services was limited.

The primary issue for the court to determine was whether it was unfair for the respondent to be required to contribute to the Territory’s water and sewerage network when the use of the services was limited. The court considered whether the Standard Customer Contract approved by the Independent Competition and Regulatory Commission was an enforceable contract and whether the respondent’s counter claim and the third party claim had any merit. The court found that the Standard Customer Contract was an enforceable contract, and the respondent’s counter claim and the third party claim were without merit.

The court held that the respondent was liable for the unpaid charges for the water and sewerage services supplied to the commercial units. The court found that the respondent was bound by the Standard Customer Contract and that the charges were not unfair. The court further held that the respondent’s counter claim and the third party claim were dismissed. The court ordered that the respondent pay the applicant the judgment monies in the sum of $8,513.48 by close of business 27 September 2018.

Orders

Orders of the court

The Tribunal orders that:

1. Judgment for the applicant in the sum of $7,695.68 plus interest on that amount calculated in accordance with the Court Procedures Rules 2006 from 29 April 2017 to date, $527.80, and the filing fee of $290.00.

2. The respondent pay to the applicant the judgment monies in order 1 in the sum of $8,513.48 by close of business 27 September 2018.

3. The respondent’s counter claim is dismissed.

4. The Third Party claim is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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