Levet and Levet and Dalla and Ors (Civil Dispute)
[2013] ACAT 10
•22 February 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LEVET AND LEVET & DALLA & ORS (Civil Dispute) [2013] ACAT 10
AA 11/09 (XD 10/915)
Catchwords: CIVIL DISPUTE – unit titles – damage to garage wall and log retaining wall – Levet and Levet and the Owners Corporation of Units Plan 2165 (Civil Disputes) [2011] ACAT 20 – jurisdictional issues – cost of repairs
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss. 9, 16, 18
and 21Common Boundaries Act 1981
Unit Titles Act 2001 (as it stood before 30 March 2012) ss. 123,
124, and 125
List of Cases: Alagha v Consumer Claims Tribunal [1999] NSWSC 1139
Archcom P/L v Consumer Claims Tribunal (BC 9500283) (Unreported, NSWSC 29/9/95)
Bellgrove v Eldrige [1954] HCA 36
Buckett v Consumer Claims Tribunal 2001 NSWSC 256
Building Insurance Guarantee Corporation v Owners of Strata Plan 57504 [2010] NSWCA 23
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd
[2012] NSWCA 184Jet 60 Minutes Cleaners P/L v Brownette [1981] 2 NSWLR 232
Levet and Levet v Dalla and the Owners Corporation of Unit
Plan 2165 [2011] ACAT 20
Tabcorp Holdings Ltd v Bowen Investments P/L [2009] HCA 8
Tranquility Pools& Spas Pty Limited v Huntsman Chemical Company Australia Pty Limited [2011] NSWSC 75
State Rail Authority of NSW v Consumer Claims Tribunal [1988] NSWLR 473
Willshee v Westcourt Ltd [2009] WASCA 87
Tribunal: Mr A. Anforth, Senior Member
Date of Orders: 22 February 2013
Date of Reasons for Decision: 22 February 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 11/09
(XD 10/915)
BETWEEN:
AMANDA LEVET
1stApplicant
BRUCE LEVET
2nd Applicant
AND:
MOIRA DALLA
1st Respondent
THE OWNERS CORPORATION
OF UNIT PLAN 2165
2nd Respondent
TRIBUNAL: Mr A. Anforth, Senior Member
DATE: 22 February 2013
ORDER
The Applicants pay the First Respondent the sum of $12,287.00 within 28 days of the date of this order.
………………………………..
Mr A. Anforth
Senior Member
REASONS FOR DECISION
This matter is one with a long history in the Tribunal. The parties are each owners of one unit in a residential B class strata in Canberra. There are only two units in the strata title and so the parties jointly form the whole of the membership of the Owners Corporation.
The backyards of the two units abut each other. The First Respondent has a garage at the end of her driveway in her back yard. The Applicants have a swimming pool in their back yard. The pool on the lower side was supported by soil that had been pushed up against a wall of the First Respondent’s garage. In so doing the soil encroached on the First Respondent’s land and has caused water damage to the First Respondent’s garage wall.
The Applicants were concerned that the garage wall would collapse and thereby deprive them of lateral support for their pool. The Applicants took the view that the First Respondent owed them a duty to maintain the support to their land and pool and to that end the First Respondent should repair her garage wall that had been damaged by the Applicants’ encroachment.
The Applicants commenced the present proceedings in ACAT seeking orders to compel the First Respondent to carry out the repairs to her garage wall. The application filed by the Applicants was headed ‘Application- Unit Titles Act 2001’. In their submissions to the Tribunal the Applicants argued that the source of the Tribunal’s jurisdiction was section 124 of the Unit Titles Act 2001 (as it stood before 30 March 2012, when the Unit Titles (Management) Act 2011 commenced.).
The First Respondent lodged a cross claim seeking an order that the Applicants bear the cost of the repair of her garage wall.
There were other issues between the parties, but these other issues are of no ongoing relevance to the present decision.
The initial decision:
The initial decision was given in Levet and Levet v Dalla and the Owners Corporation of Unit Plan 2165 [2011] ACAT 20, which set out at length the history and geography of the dispute. That history and the decision are incorporated by reference into this decision but are not repeated hereunder.
At the end of that initial hearing the Tribunal made the following orders:
1. The Applicants are to take immediate steps to remove their soil from encroachment on the First Respondent’s land.
2. The Applicants are to cease using the First Respondent’s garage wall and log wall as a retaining wall for the soil in the Applicants’ back yard.
3. The Applicants are to take immediate steps to:
a.constrain their soil to their own property;
b.construct an adequate means of retaining their soil retaining wall on their own property and;
c.to provide such lateral support as is necessary for their back yard on their own land.
4. The Applicants are to compensate the First Respondent for the damage caused to the First Respondent’s garage and log walls and the Applicants’ encroachment.
5. The Applicants’ application that the First Respondent return the ‘overhang’ to its previous state, is dismissed.
6. The matter is to be relisted for further directions on the quantification of the compensation and the timing for compliance with the orders.
At the hearing of the initial matter, the Applicants appeared to resile from their contention that section 124 of the Unit Titles Act 2001 was the source of the Tribunal’s jurisdiction. The Applicants took the view that the dispute was properly characterised as a ‘civil dispute” within the meaning of section 16 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and thus the Tribunal’s jurisdiction was capped at $10,000 per section 18 (‘the jurisdictional issue’). This apparent change of position was all the more curious given that the Applicants had filed and served an engineer’s report on the cost of repairing the garage wall that was considerably more than the $10,000 cap and were seeking orders in those terms.
In the initial decision the Tribunal addressed the jurisdictional issue explicitly at paragraphs [27] and [51]-[53] and implicitly at [65]-[76], and found that it had jurisdiction under section 123 of the Unit Titles Act 2001 to make orders of kind set out in section 124. There is no monetary cap on this jurisdiction.
In the initial decision the Tribunal did note that apart from a dispute under the Unit Titles Act 2001 the First Respondent would also have a cause of action against the Applicants at common law and in equity [77]-[101] and that the Tribunal had jurisdiction to hear actions at common law and equity arise as ‘civil disputes’ under section 16 of the ACAT Act 2008.
The Applicants appealed to the Appeal Tribunal of ACAT which made the following orders on 11 July 2011:
The Tribunal Orders that the appeal is dismissed. The orders made by Senior Member Anforth on 15 March 2011 are varied and the following orders are substituted in their place:
1. The Appellants are to take immediate steps to remove their soil from encroachment on the First Respondent’s land.
2. The Appellants are to cease using the First Respondent’s garage wall as a retaining wall for the soil in the Applicant’s back yard.
3. The Appellants are to take immediate steps to:
a.constrain their soil to their own property;
b.construct an adequate means of retaining their soil retaining wall on their property and;
c.to provide such lateral support as is necessary for their back yard on their own land.
4. The log wall in front of the garage, having been acknowledged to be on the common boundary, shall be repaired at the joint expense of the unit holders.
5. The Appellants are to compensate the First Respondent for the damage caused to the side and rear walls of the First Respondent’s garage adjacent to the Appellants property.
6. Order No 2 of Senior Member Anforth’s orders of 14 December 2010 is to be complied with by close of business Thursday 1 September 2011.
7. Liberty is given to either party to apply to Senior Member Anforth for quantification of the compensation and the timing for compliance with the orders, should this be necessary.
8. The application for the appointment of an administrator of the Body Corporate is adjourned until 11 August 2011 at 11.30 and if this matter is resolved in the meantime the unit holders are to notify ACAT in writing.
The Appeal Tribunal gave oral reasons for its decision.
In their Application filed with the Appeal Tribunal, the Applicants did not raise the jurisdictional issue referred to above. However, in the course of the Appeal Tribunal hearing the jurisdictional issue was raised by the Applicants. The Appeal Tribunal addressed and dismissed this argument at transcript [9.5-9.20].
The Applicants then appealed to the Supreme Court. In their ‘Application for Leave To Appeal’ at paragraph 7, the Applicants pleaded that their application before ACAT sought relief under the Unit Titles Act 2001. The grounds of appeal set out in the Application for Leave did not raise in any way the jurisdictional issue referred to above. However it seems that the jurisdictional issue was again raised in oral argument before the Court notwithstanding its inconsistency with the terms of the Applicants’ pleadings.
On 10 February 2012 Master Harper dismissed the Application for Leave To Appeal thus leaving the decision of the Appeal Tribunal of ACAT undisturbed (Amanda Levet and Bruce Levet v Moira Dalla [2012] ACTSC 23). At paragraph [26] the Master considered and dismissed the jurisdictional argument on the basis that the jurisdiction being exercised by the Tribunal was that conferred under the Unit Titles Act 2001, which has no monetary cap:
26. The other issue was as to the jurisdiction of the Tribunal where the amount at issue exceeded $10,000.00. The jurisdiction of the Tribunal in relation to civil disputes under part 4 of the ACT Civil and Administrative Tribunal Act is limited to that figure. Effectively, what was the small claims jurisdiction of the Magistrates Court has been removed from the court and conferred on the Tribunal. Part 4 has no application to applications to the Tribunal in the exercise of jurisdiction conferred by other legislation, such as, in the present case, the Unit Titles Act. The appeals tribunal correctly rejected the argument and it is not pursued in the proposed appeal to this court.
The matter was then remitted to the presently constituted Tribunal for finalisation of the dispute.
The matter proceeded via a series of direction hearings to ensure that all relevant further evidence and submissions were filed and served before the final hearing on 19 November 2012.
By the time of the final hearing the Applicants had excavated their encroaching soil and constructed a retaining log wall along the fence line parallel to the garage wall at a cost of $9460.00. The Applicants had replaced the previous log retaining wall parallel to the drive way at a cost of $8910.00. Both walls were of a continuous log construction built at the same time by the same builder.
In accordance with the previous decision of the Appeal Tribunal the cost of rectifying the log wall parallel to the drive way was to be paid jointly by the Applicants and First Respondent in equal shares.
On 16 November 2012, the Applicants filed written submissions which again raised the jurisdiction issue referred to above which read:
Introduction
1. It is submitted that the present jurisdiction of ACAT to award damages to the First Respondent is limited to $540-00.
2. This arises from the following factual circumstances:-
a.The Tribunal as constituted by Senior Member Anforth made orders on 15 March 2011;
b.Those orders were slightly varied by order of the Appeal Tribunal on 11 July 2011;
c.The Applicants Application for Leave to Appeal to the Supreme Court was dismissed by Master Harper on 10 February 2012;
d.In compliance with the orders of the Tribunal (as varied by the Appeals Tribunal) the Applicants took steps to remove the soil (which the Tribunal had found to belong to the Applicants) from the land of the First Respondent and to constrain the soil to their own land. The cost of complying with such orders was $9,460-00.
e.There has been no agreement between the parties as to the exercise of jurisdiction exceeding the limit of $10,000-00.
The Relevant Law
3. The Applicants contend that the only basis on which ACAT can have exercise jurisdiction to date is as a "civil dispute" pursuant to the ACT Civil and Administrative Tribunal Act 2008 ("the Act"):-
a.Section 16 of the Act describes a "civil dispute" as a dispute in respect of which a "civil dispute application" can be made.
b.A "civil dispute application" is defined as being an application which consists of one or more of a number of specified applications. The specified applications relevantly include "a damages application", and a "nuisance application".
c.A "nuisance application" is defined by Section 15 of the Act as "an application for relief of nuisance". Relief for nuisance, it is submitted, consists not only of damages for nuisance but also the cost of abatement of a nuisance.
d.The orders made by the Tribunal as constituted by Senior Member Anforth amount to orders for the abatement of a nuisance. This can be seen from the following:-
(i)at paragraph 66 of the Tribunal's Judgment the Senior Member said "the second issue arising under the Act concerns the Applicants' encroachment and whether it is lawful. An unlawful encroachment whether initiated by the Applicants or whether adopted or continued by the Applicants, is a tort in its own right committed by the Applicants". Such language as to adoption, it is submitted, can only apply to the tort of nuisance.
(ii)similarly in paragraph 98 of the Tribunal's Judgment the Senior Member finds "the Applicants' soil and the water retention and seepage through the soil is encroaching on the Respondent's land without lawful right and is causing damage to the First Respondent's property". Again, this is the language of nuisance.
(iii)Senior Member Anforth referred also to the decision of Preston CJ in Robson v Leischke [2008] NSWLEC 152, a case involving roots from a tree on the defendant's property which caused damage to the adjoining property of the plaintiff. Preston CJ noted that it was irrelevant that the present landowner had not planted the tree. The duty of the owner was to take action to abate the nuisance to the adjoining land of the neighbour as soon as the owner became aware of the problem. A failure to take immediate action would deem the owner to continue, or perhaps adopt, the continuing tort.
Preston CJ quoted at [73] from Leakey v National Trust for Places of Historic Interest or Natural Beauty [1979] EWCA Civ 5; [1980] QB 485 at [524] which explained the scope of the duty of a landowner to a neighbour as:
. . . a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such works? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required, him to do anything, and, if so, what.
4. However, under paragraph 52 of the Tribunal's Judgment Senior Member Anforth indicated that "the Tribunal is satisfied that the present dispute falls within both items 1 and 3 of Section 123 of the Unit Titles Act 2001 and is thus a dispute over which the Tribunal has jurisdiction".
5. With respect, that cannot be correct, and as the Tribunal is not yet functus officio it is sought to revisit this issue so as to assist the Tribunal into not falling into error. A proper assessment of the legal principles is as follows:-
a.Under Section 123 of the Unit Titles Act an "ACAT dispute" is defined as being between someone mentioned in Table 123 Column 2 and someone mentioned in Column 3, IF THE DISPUTE RELATES TO an owners corporation or if something is stated in Column 4 in relation to the dispute, the matter mentioned in Column 4.
In the present instance, it is clear that nothing relevant is shown in Column 4. The dispute, as constituted by the First Respondent's cross claim for relief for nuisance, cannot be said to relate in any way to the Owners Corporation.
b.Section 124 of the Unit Titles Act enables a person to apply in respect of an ACAT dispute or for a declaration in relation to the Owners Corporation. Neither of these apply in the present case.
True it is that the Owners Corporation was at one stage a party in relation to the proceedings. However, the particular relief for abatement of nuisance related to relief sought by the Respondent against the Applicants. No relief was sought by or against the owners Corporation in respect of the abatement of the alleged nuisance, and the Owners Corporation did not play an active role in the hearing of such issue. It should be treated as a separate cause of action between the parties by whom and against whom it was sought.
c.Section 125(1)(a) of the Unit Titles Act enables ACAT to make an order requiring a party to do or refrain from doing a thing. This, however, must be seen in light of Sections 123 and 124. It must be an ACAT dispute brought on the application of somebody entitled to apply to ACAT under the Unit Titles Act. Neither apply in the present case.
d.On the basis of the above, it is submitted that the provisions of the Unit Titles Act do not apply and that the matter should be regarded as an ACAT dispute.
6. Given that jurisdiction is conferred not under the Unit Titles Act but under the ACT Civil and Administrative Tribunal Act, there is a jurisdictional limit of $10,000-00 in respect of a civil dispute. The Respondent by her cross claim has sought a remedy which can only be characterised as a remedy for nuisance. In compliance with the Tribunal's directions, the Applicants have abated the nuisance. The cost of abating the nuisance is now crystalized in the sum of $9,460-00.
7. Even if the Tribunal was to conclude that the provisions of the Unit Titles Act had some application in the present instance it is submitted that any power under section 125(1)(a) to order a person to do or refrain from doing a particular thing, if exercised on the basis of abating a nuisance, is nonetheless constrained by the limit imposed by the ACAT Act. This is so for the following reasons:-
a.The dispute, being one involving nuisance, fits within the definition of a "civil dispute" under the ACAT Act. The monetary limit imposed by section 18(1) and (2) applies to all civil dispute applications not excluded by section 18(3). Section 18(3) only excludes the limit from being applied to an application for a common boundaries application or an application prescribed by regulation. It does not seek to exclude disputes decided under any jurisdiction granted under the Unit Titles Act. Had Parliament intended that these be excluded, it would have said so. It has not.
b.In many cases, an order under section 125(1)(a) of the Unit Titles Act that a person do an act will not be subject to a monetary jurisdictional limit. To the extent, however, that an order that a person do a thing reflects an order determining a "civil dispute", it is constrained by the monetary limit imposed by section 18(3) of the ACAT Act.
c.Although involving a "goods application" as defined by section 15 of the ACAT Act, the ACT Supreme Court case of In the Application ofthe ACT Civil Administrative Tribunal ; Abbey v Mack [2010] ACTSC 140 is authority the proposition that an order that a person do a particular thing (in that case to deliver a brood mare whose value exceeded $10,000) is caught by the jurisdictional limit of section 18 if it involves a dispute to which one or more of the elements of section 16 of the ACAT Act apply.
8. The residual jurisdiction of the Tribunal to provide relief in respect of the current civil dispute is thus currently limited to $540-00.
The outstanding issues at the final hearing on 19 November 2012 were:
(a) the jurisdictional issue raised in the Applicants’ submissions of 16 November 2012;
(b) the allegation by the Applicants that the First Respondent had maliciously damaged the side wall of her garage;
(c) the cost of repair to the garage wall and whether there should be any setoff for the ‘new for old factor’ (the ‘Tabcorp issue’).
(d) the First Respondent’s complaint that the log retaining wall parallel to the drive way should have had the side of the wall containing the vertical supports facing the Applicants side and not facing her side;
(e) the First Respondent challenged to the cost of the log retaining wall parallel to the drive way and denied that she had been consulted or agreed to co-fund the cost of $8910; and
(f) the First Respondent complaint that the new log wall parallel to the garage leaked with water from the Applicants’ land and was entering her garage.
At the end of the hearing on 19 November 2012, the Applicants filed further supplementary submissions directed to the jurisdictional issue, which read:
1. These supplementary submissions are made subsequent to matters raised in today's hearing by Senior Member Anforth. As such they supplement and to some extent qualify oral submissions made today.
2. Order No 1 of the orders made by Senior Member Anforth on 14 May 2012 was in the following terms:-
"The appellant is to remove all the encroaching soil and build their retaining wall by 11 July 2012."
The Applicants have complied with Order No 1. The cost of complying with Order No 1 was $9,460-00. A copy of the invoice No 00245 in that sum was tendered before the Tribunal today.
3. Order No 2 of the orders made by Senior Member Anforth on 14 May 2012 was in the following terms:-
"The parties are to jointly rectify the log wall by 11 July 2012 with equal contributions."
This order was not substantially altered by the Appeals Tribunal, which said at page 6, line no18-20 of Transcript of 11/07/11:-
"The log wall in front of the garage, having been acknowledged to be on the common boundary, shall be repaired at the joint expense of the unit holders. That's both of you."
The Applicants have complied with such order and have had the log wall repaired. The total cost of complying with such order was $8,910-00, which it is submitted should be borne equally in accordance with the terms of the order.
4. Such order was not an order by consent, although there were discussions before the Tribunal in which both parties indicated they consented to the order in those terms. There was discussion and the tender of documents as to the likely cost of complying with the order. A quote No. 102 was provided in the sum of $4,700-00 exclusive of GST. If one added GST the cost would be $5,170-00. A copy of the quote is attached by way of tender. In the event, the costs exceeded that amount. A significant reason was that the original quote did not include the cost of replacing the fence on top of the new wall. The cost of the fence was quote No. 103 in the sum of $2,400-00 exclusive of GST. If one added GST the cost would be $2,640-00. A copy of that quote is attached by way of tender. The replacement of the fence on top of the new wall was a necessary incident of compliance with Order 2 of Senior Member Anforth's orders above.
5. Since order No 2 did not specify a dollar amount it is not ultimately necessary for the Respondent to consent to any amount in excess of the original estimate. It was simply that, an estimate which by virtue of the need to replace the fence destroyed as a result of compliance with the order, together with other matters, resulted in the quote being exceeded. The Respondent was forwarded by email on 26 June 2012 a copy of the quote for the fence and did not reply.
6. It is noted that in addition to adverse costs orders (which should not be taken into account) the Applicants have incurred costs for experts' reports in the amount of $3,212-00. Whilst such amount should not necessarily be taken into account for the purpose of the jurisdictional limit, its expenditure is relevant when one considers that the purpose of the Tribunal is a fair and economic disposition of matters.
7. As was confirmed today, there is no consent to the Tribunal exceeding its jurisdiction. On one view, the Tribunal has already exceeded its jurisdiction if one adds the cost of the Applicants complying with order No 1 and their share of order No 2 of the orders made by Senior Member Anforth on 14 May 2012. However if one takes the view that order No 2, although not phrased as a consent order arose as a result of the parties indicating to the Tribunal that they did not oppose an order in those terms, then the total of the orders made to date on a non consensual basis as against the Applicants amounts to $9,460-00, leaving a residual jurisdiction to be exercised in relation to the remainder of the matter of $540-00.
8. Senior Member Anforth today mooted the possibility of making an "administrative" decision to split the applications for relief for nuisance and damages to the wall (whether by way of nuisance or trespass or otherwise) into two separate applications. With the very greatest of respect, this is not a course open to the Senior Member. Section 16 of the ACAT Act defines a civil dispute application as one or more of a number of listed applications which include a nuisance application a trespass application and a damages application. The matter was run before Senior Member Anforth as a single application. The matter went on appeal to the Appeal Division on the basis of it being one application. The Appeal Division ordered as an integral part of its orders (Transcript 11/07/11, page 6, lines 22-24) the following:-
"Fifthly, the appellants are to compensate the first respondent for the damage caused to the side and rear walls of the first respondents' garage adjacent to the appellants' property."
The matter then came back before Senior Member Anforth and an order was made on 14 May 2012 on the basis that:-
"If the parties cannot come to an agreement on damages to the garage wall, either party may relist by 30 July 2012."
All that effectively remained before Senior Member Anforth was an assessment of damages to the garage wall. In circumstances whether the matter had proceeded before Senior Member Anforth at first instance as a single application, and where it had been argued before the Appeal Tribunal as a single application, and when it had been the subject of a leave application to the Supreme Court as a single application, it is not open to the Senior Member to subvert the clear intention of the legislature by seeking to deal with the matter as separate applications so as to increase the extent of the jurisdiction which Parliament has given to him.
9. The Respondent Ms Dalla has submitted herself to this jurisdiction. She has done so where there has been no consent to an extended jurisdiction. The logical consequence of that is that the Respondent has waived her right to recover any amount in excess of the jurisdiction of the Tribunal. The Respondent has received advantages as a result of so electing. The Respondent has had the benefit of having the matter determined by the Tribunal in an environment where she has not had to incur legal costs.
10. The Tribunal has made orders against the Applicants. The Applicants have complied with those orders that have been made. To the extent that there has been compliance, the orders have been perfected. This in practical terms gives rise to either a res judicata or an issue estoppel such as would preclude the matter being transferred to the ACT Magistrates Court or the Supreme Court. The matter is and should be now at an end save for the possible residual jurisdiction of the Tribunal in the sum of $540-00. In an effort to dispose of the matter commercially (and to obviate the need for the Tribunal to enter upon an assessment of damages) the Applicants are prepared to pay to the Respondent the sum of $540-00 on a "without admissions" basis, such amount to be offset against the monies owed by the Respondent to the Applicants and deducted therefrom.
Jurisdictional issue
The Unit Titles Act 2001 is an ‘authorising law’ for the purposes of section 9 of the ACAT Act which permits applications to ACAT to resolve disputes.
The relevant provisions of the Unit Titles Act 2001 (as it stood before 30 March 2012) are sections 123, 124 and 125 in the form in which appeared at the time the Applicants filed their application:
123. An ACAT dispute is a dispute between someone mentioned in table 123, column 2 and someone mentioned in column 3, if the dispute relates to—
(a)an owners corporation; or
(b)if something is stated in column 4 in relation to the dispute, the matter mentioned in column 4.
Table 123ACAT disputes
column 1
itemcolumn 2
personcolumn 3
personcolumn 4
matter
1 an owner or occupier of a unit an owner or occupier of another unit in the same units plan 2 an owner or occupier of a unit an owners corporation keeping an animal or allowing an animal to be kept 3 an owners corporation an owner or occupier of a unit in the units plan 4 an owners corporation the manager for the owners corporation 5 an owners corporation a service contractor for the owners corporation 6 an owners corporation a member of the executive committee of the owners corporation 7 the executive committee a member of the executive committee 8 the owners corporation a person (the former manager) who was the manager for the owners corporation the return by the former manager of owners corporation property 124(1)A person mentioned in table 123, column 2 of an item may apply to the ACAT for an order in relation to a person mentioned in column 3 of the item if the application relates to an ACAT dispute.
(2)A person mentioned in table 123, column 3 of an item may apply to the ACAT for an order in relation to a person mentioned in column 2 of the item if the application relates to an ACAT dispute.
(3)A person mentioned in table 123, column 2 or 3 may apply to the ACAT for a declaration in relation to the owners corporation.
125(1) The ACAT may make the following orders:
(a) an order requiring a party to do, or refrain from doing, a
stated thing;(b) an order requiring a party to exercise a function under this Act;
(c) an order requiring an owners corporation to do a stated thing
that is ancillary to a function of the corporation under this
Act;(d) an order requiring a person to pay to the Territory or
someone else an amount of not more than $1 000;(e) a declaration—
(i) that a general meeting or executive committee meeting is void for irregularity; or
(ii) that a resolution of a general meeting or executive committee meeting is void for irregularity; or
(iii) that an article of the owners corporation is invalid for irregularity;
(f) an order repealing or amending a resolution of a general
meeting or executive committee based on a merits review of
the resolution by the ACAT;
(g) an order giving effect to an unsuccessful motion for a
resolution of a general meeting (either as originally proposed
or as amended by the ACAT) if the ACAT is satisfied after a
merits review of the motion that opposition to the motion
was unreasonable;
(h) an order requiring stated accounts of an owners corporation
to be audited, whether by a stated person or a person of a
stated kind;(i)an order allowing an applicant to examine records of the
owners corporation;
(j) an order requiring an owners corporation to make or repeal
an article and register a copy of the resolution making or
repealing the article;
(k) an order appointing an administrator to exercise all or stated
functions of the owners corporation, the executive committee
or an executive officer;
(l) if the dispute relates to a matter mentioned in table 123,
item 2—an order to remove the animal from the unit if—(i) a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or
(ii) the animal is causing a nuisance.
(2)The ACAT may make any other order it considers reasonably necessary or convenient to resolve an ACAT dispute.
(3)This section does not limit the orders the ACAT may make in relation to an ACAT dispute.
The present matter falls within item 1 of Column 1 of section 123. The Applicants and the First Respondent are owners in the same unit plan.
The present dispute is an ‘ACAT dispute’ because the dispute ‘relates to’ the Owners Corporation which is the Second Respondent. It ‘relates to’ the Owners Corporation because it raises the powers and duties of the Owners Corporation.
In this case the Owners Corporation was active early in the dispute but ceased to function in a practical sense because each of the parties has a 50% vote on the Owners Corporation producing a deadlock in the Owners Corporation. The Tribunal appointed a strata manager but this did not resolve the deadlocks. The Tribunal raised the issue of appointing a strata administrator but did not do so at the request of the parties for financial reasons.
Once seized of jurisdiction, section 125 sets out a non-exhaustive list of orders that the Tribunal may make. There is no monetary limit on these orders. Section 125(1)(a) provides the power to order the carrying out of rectification works by the parties.
Nothing in section 125 actually requires that an ‘ACAT dispute’ be based on a cause of action otherwise known to law. This raises the issue of whether section 123 would permit an application based only on a general sense of grievance or unfairness by a party but not necessarily involving a cause of action known to law. This is a similar issue to that which arose in relation to the Consumer Claims Act 1998 (NSW). In Archcom P/L v Consumer Claims Tribunal (BC 9500283) (Unreported, NSWSC 29/9/95), Alagha v Consumer Claims Tribunal 1999 NSWSC 1139, Jet 60 Minutes Cleaners P/L v Brownette 1981 2 NSWLR 232, State Rail Authority of NSW v Consumer Claims Tribunal 1988 NSWLR 473 and Buckett v Consumer Claims Tribunal 2001 NSWSC 256 the NSW Supreme Court made clear that the flexibility that the Consumer Claims Tribunal had to mould its orders to the circumstances of the case did not negate the prior need for an application to be based on a cause of action known to law.
It may be that in the present case section 123 is itself sufficient to create a statutory cause of action i.e. that the existence of a dispute relating to the Owners Corporation is all that is required without the need to find the involvement of any antecedent right known to law. If it were relevant to decide this issue, the Tribunal would be inclined to the view that section 123 does creates its own cause of action and is not merely a procedural provision.
However, the case for the First Respondent was based in a cause of action known to the law of tort and the law pertaining to real property, whether characterised as a trespass or a nuisance. These causes of action were discussed in the original decision given in this matter.
The Applicants’ jurisdictional argument is, in part, that because the nature of the First Respondent’s dispute under section123 Unit Titles Act 2001 was also a cause of action in tort and property law, it followed that her claim must be a ‘civil dispute’ within the meaning of section 16 of the ACAT Act and therefore subject to the financial cap of ‘civil disputes’:
In this Act:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
(a) a contract application;
(b) a damages application;
(c) a debt application;
(d) a goods application;
(e) a nuisance application;
(f) a trespass application;
(g) an application for a debt declaration;
(h) an application for a common boundaries determination;
(i) an application for an order under the Australian Consumer Law (ACT);
(j) an application stated to be a civil dispute application in an authorising law.
Section 4 of the ACAT Act contains the following relevant definitions:
In this part:
§ damages application means an application for damages for negligence or for any other tort except nuisance or trespass.
§ nuisance application means an application for relief for nuisance.
§ trespass application means an application for relief for trespass to land.
Section 18 of the ACAT Act imposes a financial cap of $10,000 on orders that may be made by ACAT in relation to ‘civil disputes’. That limit can be increased to the limit of the Magistrates Court with the consent of the parties (section 21). In the present case there was no such consent.
The Applicants jurisdictional argument is a of a syllogistic kind, namely:
(a)The First Respondent’s application is a of kind that could be brought as a ‘civil dispute’;
(b)Civil disputes are subject to a $10,000 limit;
(c)Therefore the First Respondent’s claim is subject to a $10,000 limit.
This logic is flawed in its premise and in its conclusion. The fact that a claim may be brought as a ‘civil dispute’ does not mean that it must be brought as a civil dispute. The context in which a dispute arises may cause the same facts to fall within different categories of disputes for the purpose of ACAT Act. For example, a contractual dispute between a landlord and a tenant may involve precisely the same issue, but if the dispute rises in the context of a residential tenancy it creates different rights and remedies under the Residential Tenancies Act 1997 than if the dispute arose in the context of a commercial tenancy under the Leases (Commercial and Retail) Act 2000.
It is generally the case that statutes may qualify causes of action and remedies at common law. Section 123-125 of the Unit Titles Act 2001 is such a case.
If a dispute is to which section 123 of the Unit Titles Act 2001 applies, then the fact that it may also be a ‘civil dispute’ under section 18 of the ACAT does not deny its status as a unit title dispute. It is true that a party may elect to commence such an action as a ‘civil dispute’ only and not purport to rely upon section 123 Unit Titles Act 2001, but this is not what happened in the present case. In any event such an election by an applicant could not defeat the right to a respondent to cross claim in reliance upon section 123 Unit Titles Act 2001.
The point has been made previously that the Applicants commenced this matter expressly under section 123 Unit Titles Act 2001 seeking orders in excess of the $10,000 cap that applies to ‘civil disputes’. It was only after it became apparent that the First Respondent’s cross claim was likely to succeed in a sum of similar dimensions to the claim made by the Applicants, that the Applicants shifted position to argue that the claim was ‘civil dispute’ with the $10,000 cap.
For the above reasons the Tribunal does not consider there is merit in the Applicants’ jurisdictional argument.
The jurisdictional argument was belatedly raised and rejected in the original Tribunal decision. The Applicants did not formally appeal the ruling on jurisdiction but did raise the issue in oral argument before the Appeal Tribunal. The argument was there rejected. The Applicants did not formally appeal that jurisdictional ruling to the Supreme Court but the issue was raised in oral argument. Master Harper rejected the argument. The Applicants did not appeal this ruling from the Master.
Even if the rulings on the jurisdictional arguments by the Appeal Tribunal and by the Master were both obiter dicta, this Tribunal is entitled to accord considerable weight to these rulings, and does so. It is now a bit late for the Applicants to be raising the jurisdiction argument for the fourth time upon the remittal from the Supreme Court.
For all the reasons given above, the Tribunal rejects the jurisdictional argument and proceeds on the basis that the matter is one to be determined under section 124 of the Unit Titles Act 2001.
Malicious damage to the garage wall
The Applicants asserted that the First Respondent had caused malicious damage to the garage wall with a sledge hammer or something equivalent, to ensure that it was in a state that had to be removed. The Applicants contended that, absent the malicious damage, the wall was not unsafe and that a simple rendering of the wall would have sufficed. They relied upon a report from Mr Darren Sault, engineer, dated 22 July 2012 to this effect.
There were no witnesses to the alleged malicious damage. The Applicants reported the matter to the police but nothing transpired. The First Respondent unequivocally denied the allegations.
Photos of the alleged malicious damage tendered in evidence showed two circular sized holes low down on the part of the wall that was already crumbling from previous water penetration.
There was no probative evidence to support the Applicants’ allegations. They were serious allegations of criminality and require commensurate evidence for their proof. The allegation was dismissed at the hearing for these reasons.
The cost of repairing the garage wall and whether there should be any setoff for the ‘new for old factor’
The First Respondent relied upon a report of Mr Declan O’Keefe, engineer, dated 3 September 2012, to the effect that the wall of the garage was beyond repair and needed to be demolished. No cost estimate was provided. The First Respondent also relied upon the quote of Ms Paul Stewart, builder, of $14,020 plus GST, for rectification of the garage. This quote included the replacement of two affected walls of the garage.
Merely having the power to order the repair or rectification of the garage wall does not, of itself, indicate what remedy is the appropriate remedy in any given case.
Traditionally the principles governing the remedy for defective building work or repair to damage to a building were those set out by the High Court in Bellgrove v Eldrige [1954] HCA 36. The proper measure of damages was said to be, prima facie, rectification provided that rectification is both a ‘necessary’ and ‘reasonable’ measure.
The ‘reasonableness’ consideration included consideration of whether the cost of rectification was out of proportion to the true extent of the loss incurred. In the latter event, the proper measure of damages was the loss in capital value arising from the defective work. The proportionality issue raised issues of ‘new for old’ and other like considerations:
6. The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt. No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second-hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks. In such circumstances the work of demolition and re-erection would be quite unreasonable or it would, to use a term current in the United States, constitute "economic waste". (See Restatement of the Law of Contracts, (1932) par. 346). We prefer, however, to think that the building owner's right to undertake remedial works at the expense of a builder is not subject to any limit other than is to be found in the expressions "necessary" and "reasonable", for the expression "economic waste" appears to us to go too far and would deny to a building owner the right to demolish a structure which, though satisfactory as a structure of a particular type, is quite different in character from that called for by the contract. Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner's loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or materials. (at p619).”
The ‘reasonableness’ caveat in Bellgrove was called in question by the High Court in Tabcorp Holdings Ltd v Bowen Investments P/L [2009] HCA 8. This case concerned a failure by a tenant to make good alterations to the leased building at the end of lease. The tenant in fact substantially improved the building and left it with a substantially improved capital value. Nevertheless the landlord sought to enforce the contractual obligation to ‘make good’ which required that the tenants remove the improvements and return the premises in the less valuable state in which they received it.
The High Court had the following to say in reading down the relevance of the ‘reasonableness’ caveat in Bellgrove:
17. The Tenant stressed that in Bellgrove v Eldridge this Court pointed out that there was a qualification to the rule it stated in regard to damages recoverable by a building owner for the breach of a building contract. "The qualification ... is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt." The example which the Court gave of unreasonableness was the following:
"No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second-hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks."
That tends to indicate that the test of "unreasonableness" is only to be satisfied by fairly exceptional circumstances. The example given by the Court aligns closely with what Oliver J said in Radford v De Froberville, that is, that the diminution in value measure of damages will only apply where the innocent party is "merely using a technical breach to secure an uncovenanted profit." It is also important to note that the "reasonableness" exception was not found to exist in Bellgrove v Eldridge. Nothing in the reasoning in that case suggested that where the reasoning is applied to the present circumstances, the course which the Landlord proposed is unnecessary or unreasonable.
...
19. Further, the Landlord correctly submitted that the Tenant's submission misconstrued what this Court said in Bellgrove v Eldridge. The "qualification" referred to in the passage quoted above that the "work undertaken be necessary to produce conformity" meant, in that case, apt to conform with the plans and specifications which had not been conformed with. Applied to this case, the expression "necessary to produce conformity" means "apt to bring about conformity between the foyer as it would become after the damages had been spent in rebuilding it and the foyer as it was at the start of the lease". And the Landlord also correctly submitted that the requirement of reasonableness did not mean that any excess over the amount recoverable on a diminution in value was unreasonable. The Tenant's submissions rested on a loose principle of "reasonableness" which would radically undercut the bargain which the innocent party had contracted for and make it very difficult to determine in any particular case on what basis damages would be assessed. That principle should not be accepted.
20. If the benefit of the covenant in cl 2.13 were to be secured to the Landlord, it is necessary that reinstatement damages be paid, and it is not unreasonable for the Landlord to insist on their payment.”
The High Court seemed to go further in accepting that even where the breach had produced an unquestioned economic gain, as opposed to loss, to the innocent party, the mere emotional or ascetic wishes of the innocent party were sufficient to underpin an order for rectification:
16. The Tenant relied heavily on findings by the trial judge that the Landlord had erected and leased the building for commercial purposes and that it was an investment property. The Tenant contended that the Landlord had never run a case that it valued the foyer for its aesthetic qualities as distinct from its having "pulling power" as a "leasing tool", and it relied on the trial judge's implicit finding, based on the resolution of conflicting expert evidence, that the old foyer was no more effective as a leasing tool than the new foyer. The answer to these submissions was put thus by Oliver J in Radford v De Froberville:
"Now, it may be that, viewed objectively, it is not to the plaintiff's financial advantage to be supplied with the article or service which he has stipulated. It may be that another person might say that what the plaintiff has stipulated for will not serve his commercial interests so well as some other scheme or course of action. And that may be quite right. But that, surely, must be for the plaintiff to judge. Pacta sunt servanda. If he contracts for the supply of that which he thinks serves his interests – be they commercial, aesthetic or merely eccentric – then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, of course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit."
The NSW Court of Appeal in Building Insurance Guarantee Corporation v Owners of Strata Plan 57504 [2010] NSWCA 23 considered both Bellgrove and Tabcorp and adopted the ‘reasonableness’ test from Bellgrove. Curiously, the Court took the view that Tabcorp had in fact affirmed this principle from Bellgrove.
In Tranquility Pools& Spas Pty Limited v Huntsman Chemical Company Australia Pty Limited [2011] NSWSC 75 Einstein J considered the issue of building work that did not meet the ascetic requirements of the contracting party and the ‘reasonableness’ caveat in Bellgrove. His Honour cited with approval the decision of the Western Australian Court of Appeal in Willshee v Westcourt Ltd [2009] WASCA 81 which essentially reduced the ‘reasonableness’ caveat to cases in which the innocent party was relying a technicality for the purpose of making a gain that bore no proportionality to any loss;
[61]Since the decision of the trial judge, the Australian law applicable to issues of this kind has been elucidated by the decision of the High Court of Australia in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390; [2009] HCA 8. ..
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[63]Applying that principle to the facts of this case, under the terms of the contract for the construction of his house, Mr Willshee was entitled to a house constructed using limestone which was all of high quality. That is not what he got. Under the 'ruling principle', he was entitled to damages in the amount required to put him in that position - namely, by demolishing the existing external wall and replacing it with limestone which was all of high quality.
[64]As the High Court points out in Tabcorp , the words of Baron Parke in Robinson v Harmon are not to be equated with being placed in 'as good a financial position as if the contract had been performed' [13]. So, in the case of land and buildings, diminution in value is not the only measure of damages available - although, of course, in some cases it may be the appropriate measure.
[65]The earlier decision of the High Court in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 stands firmly against the proposition that diminution in value is the ordinary measure of damages awarded against a builder as a result of departure from a building contract. ... In the joint judgment of Dixon CJ, Webb and Taylor JJ, it is observed that the ordinary measure of damage is the cost of the building work which is required to achieve conformity with the building contract (617 - 618). If that work requires the demolition and reconstruction of the house, then, subject to one qualification, that is the appropriate measure of damage.
[66]The qualification to which the High Court referred in Bellgrove was that 'not only must the work undertaken be necessary to produce conformity, but that also; it must be a reasonable course to adopt' (618). On the facts of Bellgrove's case, the High Court was of the view that insistence upon the performance of the remedial work by demolition and reconstruction was entirely reasonable given the nature of the breaches of the building contract.
[67]In the present case, part of the reasoning relied upon by the trial judge was the proposition that Mr Willshee's concern was primarily aesthetic, but it could not be said that his view of aesthetic desirability would necessarily be shared by others, and there was no term of the contract requiring a particular aesthetic standard to be achieved, nor any objective measure by which Mr Willshee's views could be assessed.
[68]The decision in Tabcorp establishes that this process of reasoning is erroneous. Although in the present case there was no express term of the contract relating to the aesthetic standard to be achieved by the limestone cladding, there was a term of the contract which required the limestone cladding to be of high quality. It was breach of that term which resulted in accelerated deterioration of the limestone surfaces which Mr Willshee did not regard as aesthetically pleasing. As the High Court points out in Tabcorp, the question of whether or not Mr Willshee's views in this respect are idiosyncratic, or would be shared by others, is not to the point [16]. Mr Willshee entered into a contract which he considered served his interests, and he is entitled to the performance of that contract quite irrespective of the views which other people might form in relation to the advancement of those interests, such as views relating to the aesthetic appearance of the house.
[69]In Tabcorp, the High Court also elucidated and explained the qualification of 'unreasonableness' established by the earlier decision Bellgrove. It established that this qualification is only to apply in 'fairly exceptional circumstances ... only ... where the innocent party is "merely using a technical breach to secure an uncovenanted profit"...' [17] (quoting from Radford v De Froberville [1977] 1 WLR 1262 (Oliver J).
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[76] In this case, application of the 'ruling principle' governing the measure of damages for breach of contract means that Mr Willshee is entitled to the amount of money required to put him in the position in which he would have been had his house been constructed using only limestone of high quality. As it could not be concluded that Mr Willshee was relying on a technical breach of contract to obtain for himself a profit which was outside the terms of the building contract in claiming damages measured in this way, the trial judge erred in concluding that the case came within the qualification of 'unreasonableness' referred to in Bellgrove . “
Notwithstanding the reading down of the ‘reasonableness’ caveat from Bellgrove in Tabcorp, Tranquility Pools and Willshee, the NSW Court of Appeal in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 appears to have approved the relevance of the caveat in cases where the defect does not significantly affect either the functionality or the ascetics of the building:
229. Whilst I accept that a possibility that rectification work will not be carried out does not preclude a claim for damages: Bellgrove v Eldridge supra at 620, and that unreasonableness will only be established in exceptional circumstances: Tabcorp Holdings Ltd supra at [17], in the present case the carrying out of the work would be unreasonable in the sense described by Giles JA in Westpoint Management Ltd v Chocolate Factory Apartments Ltd supra (McColl and Campbell JJA agreeing). His Honour dealt with the issue in the following manner (at [59]-[61]):
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[61] So if supervening events mean that the rectification work can not be carried out, it can hardly be found that the rectification work is reasonable in order to achieve the contractual objective: achievement of the contractual objective is no longer relevant. If sale of the property to a contented purchaser means that the plaintiff did not think and the purchaser does not think the rectification work needs to be carried out, it may well be found to be unreasonable to carry out, the rectification work. An intention not to carry out the rectification work will not of itself make carrying out the work unreasonable, but it may be evidentiary of unreasonableness; if the reason for the intention is that the property is perfectly functional and aesthetically pleasing despite the non-complying work, for example, it may well be found that rectification is out of all proportion to achievement of the contractual objective or to the benefit to be thereby obtained." (emphasis added)
230.The combination of the lack of intention to carry out the rectification work, the transfer of the property from Lesdor to the owners corporation and the absence of any evidence that the defects were affecting the use and occupation of the building or the common property leads, in my opinion, to the conclusion that it would be unreasonable to carry out the work and that damages for the cost of rectification should therefore not be awarded.”
The emphasised parts of the decision in Cordon Investments above are important. In many home building and tenancy cases before the Tribunal, the defects or breaches are minor, with no functional relevance and little ascetic loss, except perhaps to the most fastidious of owners e.g. a minor burn mark on a bench top or a small stain on a carpet. If Tabcorp were applied uncritically it would result in a great deal of economic waste in discarding perfectly functional things to satisfy the demands of the owner that most ordinary people would consider unreasonable.
From the above, the Tribunal accepts that issues of proportionality between the value of the loss to the innocent party and the potential cost of rectification, is a relevant consideration. It is not simply the case that because damage has been caused to a building that the owner is entitled to rectification in the form of ‘new for old’. If the damage caused is out of proportion to the cost of rectification then the approach of ‘loss of capital value’ is appropriate.
Having said that, in the present case there is no doubt that the garage wall is in need of rectification. The wall is crumbling. The balance of expert evidence supports the need to pull down the wall and replace it. This evidence has been dealt with previously. On the other hand there is no doubt that this approach will provide the First Respondent with an unintentional gain in the sense that she will have a substantially improved garage over the existing garage, even if the existing garage had not been the subject of the water damage caused by the Applicants.
The cost of rectification in the form of new structures is $14,020.00 plus GST which gives $15,422.00.
The Tribunal raised the above issue and the potential implications of the Tabcorp decision during the hearing. There were discussions about adopting a set off for unintentional capital gain to the First Respondent. The discussions were not fruitful and were not the subject of submissions by the Applicants in their submissions lodged by them after the hearing.
The Tribunal is troubled by the correct approach to adopt in cases such as the present. Can it really be said that replacing the side and rear garage walls is a cost out of proportion to the loss suffered by the First Respondent? The other manner of approaching the same issue is to ask whether there is any other realistic method of addressing the damaged state of the garage wall other than to pull them down and rebuild. It certainly cannot be said that the First Respondent is merely relying on a technicality for economic gain.
The Tribunal is inclined to the view that present state of the law applied to the present facts produces the result that the First Respondent is entitled to require rectification of her garage and if this results in her having an improved asset over that which existed independently of the Applicants’ water damage, then so be it.
The First Respondent’s complaint that the log retaining wall parallel to the driveway should have had the side of the wall containing the vertical supports facing the Applicants side and not facing her side
There was no agreement between the parties on which side of the log wall the vertical supports would be placed. It is too late now to entertain this dispute. It would be totally unreasonable to order the demolition of this log wall for this reason.
The First Respondent challenged the cost of the log retaining wall and denied that she had been consulted or agreed to co-fund the cost of $8910
At the hearing the First Respondent equivocated on whether she had, or had not, agreed to the quotes from the Applicants. The First Respondent ultimately conceded that she had been provided with a lesser quote by the Applicants which she had agreed to.
It transpired that a new boundary fence had to be constructed on top of and along the alignment of the new log retaining wall parallel to the driveway, as the original fence had to be pulled down when the original log wall was removed. The cost of this fence on top of the log retaining wall increased the total cost of the project.
The problem arose because of the communication failure between the Applicants and the First Respondent such that the First Respondent was never made aware of the additional cost of the new dividing fence along the log wall.
The cost of any dividing fence in the ACT is borne by the parties in equal share unless the Tribunal orders otherwise (Common Boundaries Act 1981). Even if the Owners Corporation paid the cost of the log wall with the fence on top, it would only levy the parties in equal shares for the cost. The present parties are the only two members of the Owners Corporation and so they would end up paying the cost in equal shares.
It is the case that no application under the Common Boundaries Act 1981 is before the Tribunal but the fence ‘relates to’ the Owners Corporation and is therefore a unit title dispute.
The Tribunal is satisfied that the First Respondent should pay half the cost of the $8,910.00 for the new retaining wall and dividing fence.
The First Respondent complaint that the new log wall leaks
The purpose of the Applicants’ construction of the retaining wall parallel to the garage was to remove and retain the soil that was allowing water penetration into the First Respondent’s garage. To achieve this goal the new retaining wall should obviously have been made impervious to water i.e. water proofed.
To construct a log retaining wall without any water proofing membranes was patently not likely to achieve the above goal.
Now the water from the log wall runs down the log wall into the gap (called the ‘canyon’) between the Applicants’ retaining wall and the First Respondent’s garage and enters the garage.
At the hearing this issue was addressed and it was suggested that the parties put a drain in the canyon to direct the cascading water into the storm water drain. The parties were not able to reach agreement on this, or on anything else. The parties did not proffer any solutions.
As far as the Tribunal can see there are only two solutions:
(a)for the vertical face of the log retaining wall to be water proofed; or
(b)for an appropriate drain to be placed at the bottom of the canyon.
The second alternative is likely to be considerably less expensive than the former, but no actual quotes were tendered in evidence.
The option of an adjournment was raised at the hearing in relation to the second alternative, but both parties said that they would prefer the matter finalised without further adjournment.
In the Tribunal’s experience, the construction of a basic drain in the canyon extending perhaps 10 meters to an external drain to which it is plumbed, would cost about $1200 inclusive of materials plus GST.
Conclusion
The Applicants are to pay the First Respondent the sums of $15,422.00 (including GST) for the cost of rectifying her garage walls and the sum of $1,320.00 (including GST) for the drain in the canyon to prevent further water egress into the garage.
The First Respondent is to pay the Applicant the sum of $4,455.00 for her half share of the log retaining wall and fence parallel to the drive way.
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Mr A. Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | AA 11/09 |
PARTIES, APPLICANT: | AMANDA LEVET & BRUCE LEVET |
PARTIES, RESPONDENT: | MOIRA DALLA |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | Mr A. Anforth, Senior Member |
DATES OF HEARING: | 19 Nov 12 |
PLACE OF HEARING: | Canberra ACAT Premises |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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