Muir v Icon Water Limited - [2018] ACAT 125

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…

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.

Keep reading for free

Create a free CaseChat account to read Muir v Icon Water Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] ACAT 125
Decision Date: 13 December 2018

CaseChat Overview and Summary

In the case of Muir v Icon Water Limited, the applicant, Icon Water Limited, sought to recover water and sewerage supply charges from the respondent, who owned commercial units that were not connected to the applicant’s network. The dispute centred on whether the respondent, as the owner of units without direct network access, was liable for the charges. The matter was heard and determined by the Australian Capital Territory Civil and Administrative Tribunal (ACTCAT).

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:

The appeal is dismissed, and the orders under appeal are confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal then considered the evidence and arguments of each party, before arriving at its conclusion as follows:Conclusion – Issue (a) and Issue (b)139. Having considered all of the evidence, the documents and the submissions and for the above reasons the Tribunal adopts the applicant’s submissions and is satisfied and finds:(a)the applicant provides water and sewerage services in accordance with the provisions in the Utilities Act to the respondent’s units by making a network available for the provision of water and sewerage connection services to the respondent’s units and the UP 328;(b)the applicant has provided active connection points in close proximity to the boundary to UP 328 as shown in the Water and Sewerage Network Plans being Annexures B and C and in the photographs being Annexures D, E, F and G to the witness statement of Mr McDonell. The applicant has complied with Rules S2 and W2 of the ACTEW Corporation Water and Sewerage service and Installation Rules;(c)UP 328 has accessed the applicant’s connections and in doing so demonstrated that the applicant has made a water and sewerage network available for connection to the property where the respondent’s units are located. (d)It is not a defence to the applicant’s claim to say that the respondent is not liable for the payment of the fees and charges claimed as his units are not connected to the network. Any impediment to connection is a matter between the respondent as the owner of the units and the units plan. It is the obligation of the respondent and UP 328 to install and maintain connections between the respondent’s units and the relevant connection points provided by the applicant; (e)the applicant is not responsible for connections within the common property beyond the relevant connection points on UP 328; the connection points must terminate at the boundary as applicant cannot build on the respondent’s property, or the property of anyone else;(f) the design of the building in which the respondent’s units are located is not unique in so far as it contains units with no connection to the water and sewerage network. This is a design commonly featured in commercial premises where utilities and kitchen facilities located on common property are shared by multiple units;(g)the intention of the Utilities Act and the ICRC is that all property owners that have access to the water and sewerage network should contribute to the cost of the network;(h)should the ICRC have intended that commercial units, such as the units owned by the respondent, would not be liable to pay the fixed water and sewerage supply charges, this would have been explicitly stated in the SCC and Schedule of Fees;(i)as a property owner, the respondent should contribute towards the cost of essential infrastructure along with other property owners in accordance with the fees and charges approved by the ICRC and contained in the SCC;(j)the pricing set by the ICRC is based on calculations that take into consideration the number of properties serviced by the applicant’s water and sewerage network so that charges can be fairly apportioned across all property owners. The applicant’s overall pricing is largely based on a cost recovery basis consistent with ‘National Water Initiative Pricing Principle 1: Cost Recovery’;(k)it is fair that the respondent, as the owner of property in the Australian Capital Territory, be required to contribute to the costs and charges of the applicant’s Water and Sewerage Network as determined by the ICRC and included in the SCC. (footnotes omitted)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.