Raedel v Shahin

Case [2019] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

RAEDEL & ANOR v SHAHIN

[2019] SASCFC 141

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Hinton)

14 November 2019

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE CONFLICT OF EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL

Appeal against the judgments of the District Court and the Environment, Resources and Development Court (ERD Court).

These two appeals concern a dispute between neighbours.  The appellants, the Raedels, live next-door to the respondent, Mr Shahin, in Ifould Drive, Burnside.    A dispute arose between Mr Shahin and the Raedels over a retaining wall constructed on the Raedels’ property.  The adequacy of the retaining wall was the key issue in dispute.  Mr Shahin commenced two actions complaining of the construction of the retaining wall.

Mr Shahin brought an action in nuisance in the District Court and enforcement proceedings in the ERD Court for an order for reconstruction of a retaining wall constructed by the Raedels pursuant to s 85(1) of the Development Act 1983 (SA) (Development Act).

The two actions were heard together. The judge heard expert engineering evidence from Dr Mitchell and Mr John. The judge delivered reasons and made consequential orders in the nuisance action and delivered reasons and made consequential orders in the Development Act action.

In the nuisance action, the Court found, inter alia, that there were horizontal gaps in the pavers forming a path alongside Mr Shahin’s house which was attributable to a lack of support caused by the excavation from the Raedels’ side in the construction of the retaining wall. Further, that the retaining wall was unacceptably over-stressed, inadequate to retain the Shahin land and in need of rectification. The defect could be rectified by the erection of six new piers and posts in the retaining wall at equal intervals between the existing posts. The Court awarded Mr Shahin damages of $2,604 in nuisance to re-lay the pavers.

In the ERD Court proceedings, the ERD Court found, inter alia, that the retaining wall was constructed in breach of the Development Act having regard to the relevant retrospective approval of 4 March 2014. Mr Shahin had commenced proceedings within three years of the breach, which occurred on and after 4 March 2014, therefore no extension of time was required. The ERD Court made orders for the rectification of the retaining wall and installation of a safety fence affixed to the top of the wall, to be effected at the Raedels’ cost, and after obtaining development approval from the City of Burnside (the Council).

The Raedels appealed both judgments. The grounds of appeal are that the judge erred in preferring the evidence of the expert Dr Mitchell over Mr John; that the finding that the height of the retaining wall is inadequate to retain the Shahin…

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Raedel v Shahin [2019] SASCFC 141
Case
[2019] SASCFC 141
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute over a retaining wall constructed by the appellants, the Raedels, which allegedly caused damage to the respondents' (the Shahins') land. The primary judge had found that the retaining wall was inadequate and ordered remediation. The Raedels appealed this decision, raising several grounds of error.

The legal issues before the appellate court included whether the primary judge erred in preferring the evidence of the Shahins' expert, Dr. Mitchell, over the Raedels' expert, Mr. John, in determining the structural adequacy of the retaining wall. The appellants also contended that the finding of inadequacy was contrary to the weight of the evidence, that certain evidence was wrongly excluded, that the action was brought out of time, and that the judge's discretion in ordering remediation had miscarried.

The appellate court, comprising Kelly, Stanley, and Hinton JJ, considered the principles for interfering with a trial judge's findings of fact, particularly concerning conflicting expert evidence. The court noted that an appellate court should grant permission to appeal on a question of fact. The primary judge's reasoning for preferring Dr. Mitchell's evidence was that Mr. John's method of calculation was not recognised and that Dr. Mitchell's assumptions were warranted due to a lack of information. The court applied the principles from *Sotiroulis v Kosac*, which state that conflicts in expert evidence are not resolved by counting witnesses but by discerning grounds for preference based on qualifications, reasoning, and grasp of facts. The court found that the primary judge had provided sufficient reasons for preferring Dr. Mitchell's evidence.

The appeals were dismissed, with the court granting permission to appeal on questions of fact. The parties were to be heard on costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellants submit that the judge erred in preferring the evidence of the expert Dr Mitchell over Mr John; that the finding that the height of the retaining wall is inadequate to retain the Shahin land by between 200 and 400 mm is contrary to the evidence and the weight of the evidence; that the judge erred in excluding the evidence in Exhibit D162 which had been admitted de bene esse; that the Development Act action was brought out of time and the proceedings should have been found to have been incompetent; and that in any event the exercise of the judge’s discretion miscarried in ordering remediation. The judge’s preference for the expert evidence of Dr Mitchell over Mr John Critical to the outcome of both actions was the judge’s finding that the retaining wall does not adequately retain Mr Shahin’s land and is unacceptably overstressed. That finding is based in the judge’s preference for the expert opinion of Dr Mitchell where it conflicted with the evidence of Mr John. The Raedels submit that the judge erred in doing so or failed to provide reasons for doing so that demonstrated the judge actually understood the expert evidence to enable her to make correct findings on the evidence she heard. The judge explained her conclusion in the following terms:[10]I have carefully considered the evidence and the parties’ submissions as to the structural adequacy of the Raedel Retaining wall. Neither the soil composition nor the construction details are known. The only method of ascertaining the wall’s structural adequacy is by engineering back calculations. Mr John’s method of calculation is not a recognised method. I accept Dr Mitchell’s evidence concerning the flaws in Mr John’s assumptions and equation. The assumptions that Dr Mitchell made were conservative but, in my view warranted, by reason of the dearth of available information. Likewise I accept that Dr Mitchell’s use of the safety factor of 1.5 was, in all of the circumstances, appropriate. I accept and prefer Dr Mitchell’s method of calculation to that of Mr John. I accept the evidence of Dr Mitchell that the Raedel retaining wall is unacceptably overstressed and in need of rectification. [10] [2017] SADC 92 at [198]. The basis for that conclusion was set out in the preceding reasons of the judge.[11] I will return to these reasons.[11] [2017] SADC 92 at [140]-[197]. In Sotiroulis v Kosac[12] Wells J explained the correct approach to resolving a conflict of expert evidence as follows:1.The issue will not be resolved by counting witnesses: The maxim tests ponderantur, non numerantur is one of the few latin maxims that has an almost universal validity. 2.If it is open to the trial judge to prefer one body of evidence to the other on grounds fairly discerned, he should express his reasoned preference; he should not readily abandon the task of trying to find such grounds. Distinctions may be drawn on the basis of demeanour – a limited ground, where experts are under consideration (see also in this regard the decision of King CJ in Wiechmann v Lovering (1992) 59 SASR 203; qualifications; impressiveness and cogency of reasoning and exposition – not always a decisive ground, by any means; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective, facts relevant to that problem. I do not, of course, purport to be exhaustive. Resolution of conflict is desirable if it can conscientiously be achieved, but resolution is not to be achieved at any cost. 3.If a trial judge is faced with two authoritative opinions, and is unable conscientiously to find grounds for preferring one to the other, he is not on that account to regard himself as having reached an impasse. What he has before him are, in effect, two objective facts, the bearing and implications of which he must determine in light of the facts as a whole: Pipikos v W Brown & Sons Pty Ltd [1970] SASR 508, especially at pages 520 and 521.[12] (1978) 80 LSJS 112 at 115.

Decision

Reasons for decision

Pursuant to s 30(2) of the Environment, Resources and Development Court Act 1993 (SA) an appeal lies as of right to this Court on a question of law but permission is required to appeal a question of fact. In the circumstances I would grant permission. Conclusion I would dismiss the appeals. I would hear the parties as to costs. HINTON J: I agree with the orders proposed by Stanley J for the reasons his Honour gives.

Ratio Decidendi

Legal Principle Established

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