ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MUIR v ICON WATER LIMITED (Appeal) [2018] ACAT 125
AA 36/2018 (XD 629/2017)
Catchwords: APPEAL — claim for unpaid water supply services and sewerage services — whether Icon Water ‘provided’ a utility service to the appellant for the purposes of section 92 of the Utilities Act 2000 — whether a water network and/or a sewerage network was made ‘available’ for the provision of water connection services and/or sewerage connection services — whether the original Tribunal erred by admitting expert opinion evidence from employees of Icon Water — whether the original Tribunal erred by receiving evidence after the hearing — no error found — appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Law Officers Act 2011 s 11
Unit Titles Act 2011 ss 34, 35
Unit Titles (Management) Act 2011 s 19
Utilities Act 2000 ss 11, 13, 92
Subordinate
Legislation cited: Law Officer (Model Litigant) Guidelines 2010 (No 1)
Law Officers (General) Legal Services Directions 2012
Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Hutchinson v Scott [1905] HCA 59
Icon Water Limited v Muir & Anor [2018] ACAT 75
Ikechukwu v Duong [2018] ACAT 97
Isbester v Knox City Council [2015] HCA 20
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
Mansour v Dangar [2017] ACAT 49
Minister for Immigration and Citizenship v Li [2013] HCA 18
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Tribunal:Presidential Member G McCarthy
Presidential Member MT Daniel
Date of Orders: 13 December 2018
Date of Reasons for Decision: 13 December 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 36/2018
BETWEEN:
DAVID MUIR
Appellant
AND:
ICON WATER LIMITED
Respondent
TRIBUNAL:Presidential Member G McCarthy
Presidential Member MT Daniel
DATE:13 December 2018
ORDER
The Tribunal orders that:
The appeal is dismissed, and the orders under appeal are confirmed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
REASONS FOR DECISION
The appellant owns four commercial units in Units Plan 328. He appealed from a decision of the original Tribunal made on 27 July 2018 ordering him to pay a sum of $7,695.68 to the respondent for the supply of water and sewerage services for the years ending 30 June 2014 to 2017 inclusive.[1]
[1] Icon Water Limited v Muir &Anor [2018] ACAT 75. The original Tribunal also dismissed the appellant’s counter claim for loss of earnings and witness expenses. This part of the decision was not challenged on appeal
In this decision ‘Tribunal’ means the original Tribunal appealed from and ‘Appeal Tribunal’ means this Tribunal.
Procedural background
On 24 September 2018, at a directions hearing at which both parties were legally represented, directions were made for the filing of documents for the hearing of the appeal.
The respondent did not file any submissions or other documents. On 19 November 2018, the solicitor…
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- Case
- [2018] ACAT 125
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the tribunal involved the interpretation of the Utilities Act and the application of the ACTEW Corporation Water and Sewerage Service and Installation Rules. The tribunal had to decide if the respondent was obligated to pay the charges despite the units not being directly connected to the applicant’s network, and whether the design of the building constituted a legitimate reason for non-payment. Additionally, the tribunal considered whether the applicant had fulfilled its statutory obligations by providing connection points and if the pricing mechanism was fair and in accordance with regulatory principles.
The tribunal found in favour of the applicant, Icon Water Limited. It held that the applicant had provided network access in compliance with statutory requirements and that the design of the building was not unique or exceptional. The tribunal concluded that all property owners with access to the water and sewerage network should contribute to the cost, regardless of whether their individual units were directly connected. The tribunal also noted that the charges were based on a cost recovery principle and were fairly apportioned among all serviced properties. Consequently, the tribunal dismissed the appeal and confirmed the original orders, holding that the respondent was liable for the charges.
In light of the findings, the tribunal ordered that the appeal be dismissed and that the orders under appeal be confirmed, meaning the respondent remained liable for the water and sewerage supply charges as determined by Icon Water Limited.
Orders
Orders of the court
The Tribunal orders that:
1.
The appeal is dismissed, and the orders under appeal are confirmed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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