Sinclair and Sinclair v Siljak (Civil Dispute)
[2015] ACAT 71
•21 October 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SINCLAIR & SINCLAIR v SILJAK (Civil Dispute) [2015] ACAT 71
XD 15/308
Catchwords: CIVIL DISPUTE – claim and counterclaim for damage to neighbouring retaining walls – duty to take reasonable care –standard of reasonable man – common boundary – dividing fence – agreement for location of retaining walls – cause of damage –negligence – quantum of damages
Legislation cited:
ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 16, 48
Civil Law (Wrongs) Act 2002 ss 40, 42, 43, 44, 45, 46
Common Boundaries Act 1981 s 10
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 21 October 2015
Date of Reasons for Decision: 21 October 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL XD 15/308
BETWEEN: CASSANDRA SINCLAIR
ALISTAIR SINCLAIR
Applicants
AND:
ANTHONY SILJAK
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
DATE:21 October 2015
ORDER
The Tribunal Orders that:
Judgment for the applicants on the Application in the sum of $6,292.00, plus the filing fee of $135.00 and Mr Akhyani’s fee of $297.00, totalling $6,724.00.
Judgment for the respondent on the counter claim in the sum of $950.00 plus the filing fee of $135.00, totalling $1,085.00.
The respondent is to pay to the applicants the sum of $5,637.00, being $6,724.00 in Order 1 less $1,085.00 in Order 2, by close of business 18 November 2015.
………………………………..
Ms E. Symons – Presidential Member
REASONS FOR DECISION
Background
Cassandra Sinclair and Alistair Sinclair (“the applicants”) are the owners of and reside at 13 Peter Coppin Street, Bonner in the Australian Capital Territory (“ACT”) (“the applicants’ property”). Anthony Siljak (“the respondent”) is the owner of and resides at 15 Peter Coppin Street, Bonner, ACT (“the respondent’s property”). The properties share a common boundary.
The properties occur on naturally sloping land. The respondent’s property is higher up the slope than the applicant’s property. As the blocks were located on sloping ground the high side of the block was cut into the ground below what would have been the naturally occurring slope of the land (“the cut”). To retain the earth at the edge of the cut a retaining wall was constructed by the applicants in December 2013 on their property near to the common boundary with the respondent’s property.
The low side of the respondent’s property adjoins the applicants’ property. The respondent used block fill on the low side of his property to create a consistent level (“the fill”) and built a retaining wall (“the wall”) on or about 3 September 2014 to retain the fill. On 5 September 2014 the respondent built a common boundary fence on top of his wall.
On 7 December 2014 the respondent’s wall collapsed onto the applicants’ property.
The Proceedings
On 17 March 2015 the applicants filed a damages application in the tribunal seeking $6,754.00 being the “cost for damage to a retaining wall caused by the collapse of the neighbour’s (the respondent) retaining wall”.
On 21 April 2015 the respondent filed a response disputing the applicants’ claim and a counter claim seeking $5,840.00 for “payment of half of the Boundary Fence ($950.00); half of the boundary Retaining wall ($3,800.00)… and cost to fix the Boundary Wall ($1,100.00)” plus $1,760.00 for loss of the respondent’s wages.
At a preliminary conference on 27 May 2015 a timetable was set for the filing of an amended application, a response, written time lines of the events, written statements by every witness and expert reports and “any invoices, quotes, receipts, photographs, emails and other material (the parties) relied upon.”
The applicants filed an amended damages application on 19 June 2015 for $6,754.00 (refer [5] above) and $297.00 for the cost of the engineer’s report.
On 29 June 2015 the respondent filed another response seeking $950.00 for “fence half payment” plus $3,800.00 for half of the repairs to his boundary retaining wall and $795.00 solicitor costs.
Jurisdiction
The Tribunal is a statutory body established by the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and has only such jurisdiction and powers as are conferred on it by the Legislature.
The Tribunal has jurisdiction over this matter by virtue of it being a civil application in relation to a damages application.[1] A damages application means an application for damages for negligence or for any other tort except nuisance and trespass.
[1] Section 16(b) of the ACAT Act
In exercising its functions under the ACAT Act the tribunal must ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice and observe natural justice and procedural fairness.[2]
[2] Section 7(a) and (b)
The Tribunal proceeded with this matter as a damages application and as if negligence had been specifically raised.
The hearing
The hearing took place on 28 July 2015 and 18 September 2015. Mr Seyi Onitiri, solicitor with Moray & Agnew, appeared for the applicants on both dates and Mr John O’Keefe, solicitor, appeared for the respondent on 28 July 2015.
Both applicants gave evidence. Alistair Sinclair was cross examined. The applicants called evidence from Mr Arash Akhyani, Structural Engineer; Matthew McIntyre, landscaper and David Barton, landscaper. These witnesses were cross examined by the respondent. The applicant tendered the following documents in evidence:
a)2014 Bureau of Meteorology Rainfall Record - Exhibit AA;
b)Report Arash Akhyani dated 20 May 2015 - Exhibit AB;
c)Rilack Landscapes quotation dated 22 May 2015 - Exhibit AC;
d)4james Pty Ltd Estimation of Works dated 29 January 2015 - Exhibit AD;
e)Amended Application and attachments - Exhibit AE; and
f)Original Application and attachments - Exhibit AF.
The respondent gave evidence and was cross examined. He called evidence from David McPhan, Managing Director of Pink Diamond Landscapes who was cross examined on behalf of the applicants. The respondent tendered the following documents in evidence:
a) Letter from Pink Diamond Landscapes dated 18 April 2015 - Exhibit R1;
b) Response and attachments dated 21 April 2015 - Exhibit R2; and
c) Response and attachments dated 29 June 2015 - Exhibit R3.
17. After hearing the parties’ submissions the Tribunal reserved the decision. This is the Tribunal’s decision. In these reasons for decision when the term ‘Tribunal’ is used it is a reference to the ACAT member who heard the matter and is making this decision. A reference to the ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally or a previous tribunal.
The applicants’ contentions
The applicants contend that the retaining wall on the respondent’s property was:
a)built too close to the applicant’s retaining wall;
b)was within the zone of influence to the applicants’ retaining wall;
c)was not fit for its purpose; and
d)the cause of the damage to the retaining wall on the applicants’ property when the respondent’s wall fell down.
The applicants deny any liability to the respondent’s counter claim. The applicants contend that the respondent never provided them with any quotes to have the timber boundary fence built and the quality of the fence built by the respondent is poor as the timber is already bowing.
The applicants deny that there was any agreement to contribute to the respondent’s boundary retaining wall. They contend that the respondent had agreed to build his retaining wall away from the common boundary and inside his block and that they would each be liable for the cost of their own retaining walls.
The applicants contend that their retaining wall was designed and built with adequate drainage. The rainfall event in December 2014 did not cause the wall to collapse. In the 12 months after their retaining wall had been built there had been a number of significant rainfall events; they did not have problems with drainage during this time and their wall stood up. In relation to the respondent’s reference to and photos of water lying in their backyard, the photos are of the area where their backyard tap is which they use to water their lawn.
The respondent’s contentions
The respondent contends that:
a)the applicants’ retaining wall:
(i) was built too close to the common boundary;
(ii) was substandard; and
(iii) had inadequate drainage.
b) the applicants made their damage worse by removing the wall themselves and digging away some of their soil and this has made the costs of repairs claimed more expensive; and
c) the applicants’ quotes are for a different and better retaining wall to what is there.
The respondent contended in his amended response (Exhibit R3) that the applicants:
[Had] deconstructed much of his [the applicants] wall since repairs to our wall, in an attempt to exaggerate damage evidence in the photos he has provided. He has in addition dug away at our footings to provide deceptive photo imagery. In addition to this misleading image already presented by them they have also provided a photo of the high point in the yard, claiming there is no water retention, when the problem lies lower down in their yard. I strongly believe that they have done this in order to manipulate the outcome of court proceedings. They have also manipulated Arash by feeding him bias information and hearsay after the fact withholding previous agreements, discussed requirements and other information.
In the counterclaim the respondent contends that the applicants are liable for half of the boundary retaining wall which forms the boundary separation under ACTPLA regulation and half of the timber boundary fence.
The respondent also contends that the applicants are liable for his cost to fix the boundary wall due to their inadequate drainage and improper building of a wall that is not ACTPLA approved.
The Legislation
Subsection 41 of Chapter 4 of the Civil Law (Wrongs) Act 2002 (‘the Wrongs Act’) states:
This chapter applies to all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise.
Sections 40, 42, 43, 44, 45 and 46 and 49 of the Wrongs Act state:
40. Definitions—ch 4
In this chapter:
"harm" means harm of any kind, and includes—
(a) personal injury; and
(b) damage to property; and
(c) economic loss.
"negligence" means failure to exercise reasonable care and skill.
42. Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43. Precautions against risk—general principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44. Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
45. General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability ).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party
46. Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
The issues
The issues for determination in relation to the application are:
(a) did the respondent owe a duty to the applicants to take all reasonable care and to exercise reasonable skill when building the wall where he did; and if so
(b) what was the scope of that duty?
(c)whether the respondent breached that duty of care; and if so
(d) what is the appropriate measure of the applicants’ damage?
The issues for determination in the counterclaim are:
(a) did the applicants owe a duty to the respondent to take all reasonable care and to exercise reasonable skill when building the wall where they did; and if so
(b) what was the scope of that duty?
(c)whether the applicants breached that duty of care; and if so (the wall failing)(d) what is the appropriate measure of the applicants’ damage?
The evidence
The applicants
Mr Sinclair told the Tribunal that prior to building his retaining wall in December 2013 he had discussed the boundary fencing with the respondent by telephone. They came to the decision that the applicants would build a retaining wall on their property, the respondent would build a retaining wall on his property and a fence would be built on their common boundary.
The applicants’ retaining wall was built on their property and 500mm away from the common boundary. It was built by Closer to the Edge. It was a treated pine sleeper retaining wall to contain the cut on their property.
Mr Sinclair sent a message by SMS to the respondent on 3 September 2014 alerting him to the fact that “the guys building the [respondent’s] retaining wall are building it right on the fence line.”[3]
[3] Exhibit AF – attachment A to the Application
The respondent responded to this SMS stating “Hi mate it was my intension (sic) to build the wall just behind the boundary so that the fence can sit above it – the distance there is around 45 cm from the edge of your wall.”[4]
[4] Exhibit AF – attachment A to the Application
The parties continued to communicate by SMS about the height of the fence which was installed on 8 September 2014.
On 12 September 2014 Mr Sinclair sent an SMS to the respondent about the quality of the fence he had had erected which stated:
G’day Anthony. No issues with cost, we understand our requirement to pay for half if (sic) the fence. However, I’m pretty disappointed with the quality. The problem caused by the landscaper has made the fence lean and I’m still concerned about the stability. …”[5]
[5] Exhibit AF – attachment A to the Application
Mr Sinclair said he had been at his home when the respondent’s yard was being filled and compacted and he had seen Mr McPhan, from Pink Diamond, push the respondent’s wall out when operating the bobcat and back filling which had caused it to warp. He said he had brought this to the respondent’s attention.
On 26 October 2014 Mr Sinclair sent another SMS to the respondent as he had not heard back from his 12 September 2014 SMS. Mr Sinclair stated:
How do you reckon we can go about getting the fence and wall straightened up to a particular standard? I am happy to call pink diamond and get them back to sort out their mistake. Hope we can get it sorted sooner rather than later. …[6]
The respondent replied:
Feel free to call pink diamond I’ve already paid the guy $11.5k he should fix the bend in the wall.[7]
Mr Sinclair contacted the landscaper.
[6] Exhibit AF – attachment A to the Application
[7] Exhibit AF – attachment A to the Application
On 14 November 2014 the respondent informed Mr Sinclair by SMS that the landscaper ‘is unable to fix the wall until the new year…and even then he want(sic) give me a date.” Mr Sinclair responded:
Thanks for the update. We will have to keep pushing him. I can guess he will keep trying to put it off. I can’t put up a gate until it’s sorted, you can see how ridiculous the fence lean is now you have straight post/gate installed right next to it.[8]
[8] Exhibit AF – attachment A to the Application
The respondent’s retaining wall and the fence on top of it collapsed onto the applicants’ property on or about 7 December 2014 and damaged the applicants’ retaining wall.
Mr Sinclair said that the respondent admitted fault when he helped the applicants remove the fence which was about to fall on their property.
The applicants arranged for the landscaper who installed their retaining wall, David Barton, to attend and to provide a quote to have the wall repaired back to its original state. He told them that the repair work would have to be mostly done by hand as there was no longer an opportunity for machinery to do the work. Mr Barton’s quote was for $6,754.00 including GST.
The applicants also arranged for a qualified structural engineer, Mr Arash Akhyani, to inspect the damaged retaining wall and provide a report.
Mr Sinclair disputed the respondent’s claim that the applicants’ retaining wall did not have adequate drainage. Mr Sinclair said that they had never had any issues with their retaining wall and/or the drainage in the 12 months between their retaining wall being built and the respondent having his retaining wall built.
He acknowledged that there had been significant rainfall, namely 45.4 mm, between 1 December 2014 and 7 December 2014 (and which included two rain free days). He also said that they had had no issues with rain affecting the drainage or the structural integrity of the retaining wall during other periods of significant rainfall in the preceding 12 months:
14 – 17 February – 4 consecutive days 48.4 mm
20 February 45 mm
25 – 28 March – 4 consecutive days 51 mm
4 – 6 April 50.2 mm
12- 14 October 41.2 mm
Mr Sinclair said he had seen Mr McPhan inspecting the damaged walls on 8 December 2014, the day following their collapse.
In cross examination Mr Sinclair denied that the respondent had always said he was going to build on his boundary and that the respondent had asked Mr Sinclair and his landscaper to leave enough room for him to build his wall.
In re-examination Mr Sinclair reiterated that their discussions had been about their walls being away from the boundary with the boundary fence being down the middle. He said that he had assumed that the respondent’s contractor would have been experienced and known about the ‘zone of influence’[9] considering that the applicants’ wall had already been built.
[9] Zone of Influence for the retaining wall, means the volume of soil stratum behind the wall that affects the wall’s structural integrity
Cassandra Sinclair told the Tribunal that she had observed Mr McPhan attend the respondent’s property on 8 December 2014 and inspect the collapsed walls. She had taken a photo of him there on her digital camera that morning.
Arash Akhyani
Arash Akhyani told the Tribunal that he was a structural engineer with 18 years’ experience designing houses and providing expert reports. He is a member of the Institute of Engineers Australia.
He inspected the applicants’ damaged retaining wall on 20 May 2015 to determine the cause of failure. He said he based his evidence on a visual inspection and no structural sampling had been carried out. He had been shown photos taken by the applicants. He opined that the cause of the failure of the applicants’ wall was excessive pressure from the respondent’s retaining wall/fence which had been constructed too close to the applicants’ existing wall and its footings were not deep enough.
In his report he stated:
It seems the neighbour’s retaining wall structure was built near the existing retaining wall right on the boundary disregarding the zone of influence to the existing structures. This resulted in failure of both retaining walls in one stage when the neighbour’s retaining wall/fence was hit by a bobcat during construction. The neighbour’s retaining wall was repaired after the incident however my client’s retaining wall remains damaged.
It is evidence that the retaining wall is NOT in a serviceable condition and may worsen if no Rectification/repair carried out… It is recommended to temporarily cover the soil with plastic membrane for now till a proper repair operation commenced.
In cross examination he opined that the respondent’s new wall was still too close to the applicant’s wall. He said he had not looked at the applicants’ retaining wall footings as they were ‘down in the ground’.
The following exchange occurred in cross examination:
Q. If his footings are deep enough how much pressure do you need to collapse the applicants’ wall?
A. There is a formula if building a new structure, a new wall; it needs to be outside the zone of influence of the existing structure. There is not any amount of reason to justify damaging an existing structure.
Mr Akhanyi agreed that poor drainage can be a problem for a retaining wall. However, he also opined that having a timber sleeper retaining wall with steel poles was good enough to let the water out. Therefore, there would be no pressure from water. Stone retaining walls need outlets for drainage.
In re-examination he said that the respondent’s retaining wall had been built within the zone of influence. It did not have deep enough footings. He also said that the applicants’ wall had stood for one year without issue and there had had been a number of weather events in those 12 months.
Mr Akhanyi also said he was not confident that the respondent’s new wall will hold up again. He saw no evidence that it was constructed according to current codes and standards.
Matthew McIntyre
Mr McIntyre had provided the applicants with a quotation on 22 May 2015 for the rectification work to their retaining wall[10] for $6,292 including GST.
[10] Exhibit AC – RilackLandscapes Quote Number 373 22 May 2015
He said he has been a landscaper since 1998; he has a Certificate III in Landscaping from the CIT and operates his own business, RilackLandscapes.
The scope of works in his quote was to remove the damaged posts and sleepers from existing retaining wall; supply and install new steel posts and treated pine sleepers; supply and install treated pine intermediate posts for extra strength; supply and place drainage gravel behind the wall; connect aggy line to storm pipe and site clean on completion. He told the Tribunal that if concrete filled blocks were used instead of pine sleepers his price quoted would double.
In cross examination he said that he could, maybe, reuse a couple of the existing pine sleepers but that he would need about 90% new sleepers.
David Barton
Mr Barton told the Tribunal that he has been a landscaper for 35 years. He is also a bobcat operator and excavator operator. His business, Closer to the Edge, operates under the company name of 4james Pty Ltd.
He had built the retaining wall for the applicants in 2013. He said he had used aggy line drainage and adequate fill as the wall was less than one metre in height.
He had had no contact from the applicants after he had completed the wall before this incident. He had attended the applicants’ property in December 2014 to provide a quotation to fix the wall back to its original condition. He opined that the respondent had used a lot of fill on his property to attain his desired level and built an unsafe wall to hold all of the fill. He believed that the respondent’s fill had not been compacted adequately. He stated in his report:
There should have been visible layers of compacted material every two to three hundred millimeters (sic), this was not the case. The moisture visibly leaking from the neighbour’s property was from multiple points and depths. Had adequate compaction had of been (sic) carried out all excess water would have sheeted off the top.
The footings for the neighbour’s wall are sitting just behind my clients wall. I believe this is unsafe as these footings need to be placed into solid ground, in this case well below the ground level of my client’s retaining wall. Also the neighbour’s wall should not have been built on the boundary as it would have more stability if it was placed further away from my clients wall.
…
This wall [the applicants] is not designed to hold the neighbour’s fill, only the cut of my clients property.
He had provided a quote for the rectification of the applicants’ damaged retaining wall (Exhibit AD) on 29 January 2015 for $6,754.00 including GST. His Description of Works stated:
Clean and reset exsisting(sic) retaining wall UC posts, reconstruct
retaining wall using exsisting(sic) sleepers, wall will then be lined
with plastic and adequate drainage, plumbed into storm water $1,840.00
Excavator and Labourer $4,200.00
1 cm Garden mix $ 50.00
1cm forest litter mulch $ 50.00
Subtotal $6,140.00
GST (RATE 10.00%) $ 614.00TOTAL $6,754.00
Mr Barton said he had not allowed for any bracing or reinforcing of the respondent’s fence during construction of the applicants’ wall so his quote could be more.
The Respondent - Anthony Siljak
Mr Siljak told the Tribunal that he had never agreed with the applicants to erect a fence on the common boundary between their two retaining walls as the fence would have been unreasonably low. He said what was agreed was to drop the fence height to 1500mm instead of the original height he had wanted of 1800mm. The respondent also said he dropped the height of his retaining wall by one whole sleeper to appease Mr Sinclair.
Mr Siljak alleged that, where there is a class 10 building structure (his garage), he had to build his retaining wall not less than 1.5 metres from that structure.
In his first response (Exhibit R2) Mr Siljak said[11] he had contracted out the build of the retaining wall and fence to licensed landscapers and fencers and relied on their expertise and experience for compliance to align with all building approval guidelines.
[11] At page 2
He conceded that his wall had a slight bulge which had occurred during the backfill and compaction stage of his build. He stated he had an agreement with his landscaper (Mr David McPhan of Pink Diamond) that that issue would be rectified as soon as possible. He also said that the landscaper assured him that this issue would in no way compromise the wall structurally, only visually. Mr Siljak told the Tribunal that the bulging in the wall had not caused damage to the applicants' wall.
In his first response he said that the catalyst for the walls’ collapsing was the severe weather conditions in Canberra in early December 2014. These weather conditions included large amounts of rain and thunder storms with very high winds. He asserted that the buildup of water behind the applicants’ wall, caused by insufficient drainage, had compromised the applicants’ wall which, in turn, had compromised his wall. In his amended response he alleged that the applicants’ wall had not been built correctly to allow his (the respondent’s) wall to apply some pressure to it.
Mr Siljak alleged that he ascertained after the walls had collapsed that the aggy pipe installed in the applicants’ wall was too small, was blocked by dirt and rubble and did not have a sock located over the end of it to prevent this. He also expressed his concern that the footings on the applicants’ wall may have been insufficient and claimed that this was demonstrated by the movement in their wall as shown in their various photographs.
He maintained that his landscaper had investigated the issues surrounding the collapse of the retaining walls and told him that as his wall was independent of the applicants’ wall, any movement in his (the respondent’s wall) would not have affected the applicants’ wall if their wall had been built correctly.
He also said that the applicants had obtained a quote to repair the whole of their retaining wall instead of obtaining a quote to repair the damaged section.
He said when Pink Diamond had remediated his wall it had become clear that there was an extensive water accumulation problem behind the applicants’ retaining wall so his landscaper had dug the footings twice as deep and there had not been any issues since then.
Mr Siljak told the Tribunal that in his counterclaim he was seeking the cost for half of the fence between the properties, $950.00, which the applicants had agreed to pay but not yet paid and $3,800.00 of the cost he had incurred in repairing his retaining wall.
David McPhan
Mr McPhan told the Tribunal that he was the Managing Director of Pink Diamond Landscape; he had been building walls for 12 years and worked as a professional landscaper for the past 9 years. He has a Certificate III in Landscape Horticulture and a Diploma in Project Management.
He had built the timber sleeper retaining wall for the respondent in 2014. He had fixed this retaining wall after storm damage. He provided a report dated 18 April 2015 to the respondent for these proceedings (Exhibit R1). His invoice 00049 to the respondent for $7,600.00 including GST was dated 15 November 2015.
Mr McPhan said he had come out to the respondent’s property immediately after the respondent’s wife had contacted him about the damaged walls as he was concerned about further damage to the applicants’ property.
In his report Mr McPhan stated that the respondent’s wall was constructed as per the Australian Standard and within ACTPLA guidelines in relation to retaining walls on boundaries. He said the footings for the wall, 500 x 500 x 800 deep into solid ground, would be ample to support boundary fencing bracing which was fixed to the wall; backfilling consisted of 100mm socked aggregate drain with 300mm drainage rock cover, backfilled and compacted behind.
In his evidence Mr McPhan stated that the respondent’s retaining wall sat up to 280mm within the respondent’s block.
In relation to the applicants’ retaining wall, Mr McPhan stated in his report that:
a)it was not correctly installed as per Engineer standards;
b)the entire dead side of the applicants’ property does not have any drainage or sufficient ground fall to take ground water away;
c)the 50 mm aggregate drain behind the neighbouring wall was not covered with more than 100 mm drainage of rock, if any;
d)the drainage pipe was covered and blocked in areas with clay and soil;
e)due to the wall sitting on the high side of the block it should have had 100mm aggregate drain and plumbing pickup from the house, to pick up water correctly;
f)the footings and ground saturation of the neighbour’s (applicants) house suggests potential structural issues of the neighbour’s house as moisture and water has no escape; and
g)the neighbouring wall was not backfilled correctly and soil levels behind the wall for three quarters of area were not filled to at least ¾ height.
Mr McPhan described the applicants’ claim of his poor workmanship as ‘outlandish’. He maintained that the cause of both walls collapsing was the applicants’ wall, due to the various defects listed in the preceding paragraph.
In cross examination Mr McPhan conceded that he had an interest in this matter and when he wrote his report he knew that there were issues about the quality of the wall he had built and the placement of the wall. He agreed that he was not independent.
He maintained that the respondent’s wall was 280mm within his boundary but then conceded that the ACTPLA report was probably correct in stating that the respondent’s wall was on or 50mm from the boundary.
He was asked whether the respondent’s wall was built too close to the applicants’ wall. He replied that the respondent’s wall was built to the boundary and at the front of the respondent’s driveway the wall was within the respondent’s boundary.
When asked if he had disregarded the zone of influence when building the respondent’s wall he replied – “I understand it was built where agreed.”
In cross examination Mr McPhan said he had pulled the old wall out around February 2015; however he had first seen the site on 23 December or 24 December 2014. He denied he had been present at the respondent’s property on 8 December 2014. When shown the photograph taken by Ms Sinclair on 8 December 2014 he agreed that he is shown in the photo but disputed the date. Subsequently he said that the first time he inspected the damage was Boxing Day; then he said he had met the parties during the festive season, between 23 December and 26 December 2014.
He told the Tribunal that he had not had any other walls he had built fail and this was the first time he had had to pull out footings.
Mr McPhan conceded in cross examination that he had no plumbing experience. He had not pulled out any of the Applicants’ aggy drain and had not looked inside it. He said he had based his assumptions that there was silt in the pipe on the amount of water he had seen which was not getting away from the area.
He was asked, in relation to his evidence of the buildup of water, if he was saying that the applicants’ wall could have created a cascading effect causing the respondent’s wall to fall down. He replied that potentially the applicants’ wall could have come down in the heavy rain event adding it could have fallen over at any time due to the water saturation.
He said, when he was repairing the respondent’s wall, he had told the applicants that their drainage was too small, but that he was at the site at the request of the respondent doing the work for him.
Report from Construction Services, ACT Government dated 1 May 2015 (the Construction Services Report)
Investigators from Construction Services, Environment and Planning, commenced an investigation on 16 February 2015 in relation to the two retaining walls. They inspected the sites in February 2015, 20 March 2015 and 14 April 2015.
The report dated 1 May 2015 to the applicants states:
It is apparent that a large amount of fill has been introduced to block 15 [the respondent’s block] and that the boundary retaining wall has been constructed by the Lessee of block 15 to retain that fill.
…
The retaining wall on block 16 [the applicants’ block] does not require development approval as it is or mostly is constructed below NGL.
…
While the upper retaining wall constructed by the Lessee of block 15 has been calculated at approximately 80mm – 100mm higher than the maximum exempt height allowed for retaining walls considering the above constraints there is not a sufficient degree of certainty to require that the Lessee of block 15 seek and obtain development approval.
…
There is some evidence to suggest that forces from the upper wall may be at risk of bearing on the lower wall when the angle of influence (Building Code of Australia Volume 2) is considered with regard to the closeness of the walls to each other. It may be that the footings or support structures for the upper wall direct the forces created by the weight of the wall and any associated geostatic pressures low enough to avoid this effect, however considering that no cross section plans have been sighted for the wall, this has not been demonstrated.
CONSIDERATION
The Tribunal is satisfied from the evidence and finds that neither the applicants’ retaining wall nor the respondent’s retaining wall required development approval.
The Tribunal is also satisfied from the evidence and finds that each party had agreed to be solely liable for the cost of building their own retaining walls and to share equally the cost of the timber fence.
Did the respondent owe a duty of care to the applicants to take reasonable care and to exercise reasonable skill when building the wall?
The short answer is ‘yes’.
The Tribunal is satisfied from the evidence that, prior to the applicants building their retaining wall, Mr Sinclair and Mr Siljak had discussed how to deal with their common boundary. The Tribunal has considered the conflicting evidence from Mr Sinclair and Mr Siljak in relation to their discussions. The Tribunal finds that while Mr Siljak was in favour of one stone retaining wall being built on their common boundary, Mr Sinclair did not agree to that proposal.
Where their evidence differed the Tribunal preferred the evidence of Mr Sinclair. He said that the parties had agreed that they would each build a retaining wall on their own properties, away from the common boundary, and that they would share the cost of a timber common boundary fence which was to be installed between the two retaining walls. Following from this agreement Mr Sinclair arranged for Mr Barton to install his retaining wall on the applicants’ property.
Mr Siljak told the Tribunal he believed the applicants understood he would be building on his boundary.
The Tribunal noted that Mr Barton had been present and spoken with the respondent and the applicants about the applicants’ retaining wall on the day he had commenced building the wall. He corroborated much of the applicants’ evidence.
The Tribunal also noted that in the SMS exchange on 3 September 2014 Mr Sinclair sent Mr Siljak an SMS at 11.58am that day telling Mr Siljak that “the guys building the retaining wall are building it right on the fence line.” In the SMS from Mr Sinclair to Mr Siljak at 12.49pm Mr Sinclair referred to the ‘fence in the middle’. The Tribunal finds that the SMSs corroborated the applicants’ evidence that there were to be two retaining walls on their own properties, away from the common boundary and a timber fence on the common boundary.
The only corroboration of the respondent’s assertion that he always intended to build his retaining wall on his boundary was his SMS to the applicants on 3 September 2014 in which he said it was always his intention to build the wall just behind the boundary. Otherwise his evidence was not corroborated.
Having considered all of the evidence, the Tribunal finds that the parties agreed that they would each build their own retaining walls on their own properties at a sufficient distance from the common boundary to enable a timber dividing fence to be erected on their common boundary between the retaining walls.
The Tribunal finds that the respondent had not notified the applicants that he had changed his mind and was building his retaining wall on the common boundary. The first the applicants knew of this was on 3 September 2014 when the work commenced on the fence line and Mr Sinclair sent Mr Siljak an SMS at 11.58am that day. Had the applicants agreed that the respondent’s wall would be on the common boundary there would have been no reason for the applicants to send their first SMS on 3 September 2014. It is clear from Mr Siljak’s reply to this SMS that he was only concerned about the distance of around 45cm from the edge of the applicants’ retaining wall to his wall.
The Tribunal is satisfied from the Report and finds that the applicants’ retaining wall was built in 2013 approximately 500mm from the common boundary and that the fill retaining wall built by the respondent was built in September 2014 on or very near the common boundary line, set into block 15 by approximately 50mm.
The Tribunal is satisfied and finds that the respondent owed a duty of care to the applicants and to their property when building his retaining wall.
What was the scope of the respondent’s duty?
Pursuant to section 42 of the Wrongs Act the standard of care is that of a reasonable person in the respondent’s position who was in possession of all of the information that the respondent either had or ought reasonably to have had at the time of the incident out of which the harm arose.
The Tribunal accepted Mr Akhyani’s expert evidence as an engineer. His evidence was not shaken under cross examination. He was a credible witness. Mr Akhyani said that the respondent’s retaining wall structure had been built disregarding the zone of influence to the existing structure, namely the applicants’ retaining wall. The Construction Services Report also referred to the closeness of the walls, the angle of influence and “some evidence to suggest that forces from the upper (respondent’s) wall may be at risk of bearing on the lower (applicants’) wall.”
Mr McPhan’s evidence, when asked if he had built the respondent’s wall too close to the applicants’ wall and whether he had disregarded the zone of influence, was non responsive and evasive.
The Tribunal is satisfied and finds that a reasonable person in the respondent’s position would have engaged a tradesperson with the skill and knowledge to advise the respondent on the zone or angle of influence if the respondent insisted on his retaining wall being built on the common boundary when the applicants’ retaining wall structure already existed.
Notwithstanding Mr McPhan’s evidence of his qualifications and experience, the Tribunal had little confidence, from his evidence in [108] above that he had considered the zone of influence or even the closeness of the applicants’ existing retaining wall before commencing to build the respondent’s retaining wall.
Further, the Tribunal is satisfied and finds, having considered the evidence, that the applicants had notified the respondent in their SMS on 12 September 2014 that his fence was leaning and they were concerned about stability. They described the respondent’s wall as ‘being wobbly’. The applicants also referred in the SMS to the ‘problem caused by the landscaper.’ Mr Siljak conceded that while his ground was being compacted by his landscaper the bobcat had hit the retaining wall and caused it to buckle. The applicants’ photos confirm this damage. Mr Siljak alleged this damage was not structural, describing it as not aesthetically pleasing.
Mr Akhyani said that where the damage had been caused to the respondent’s wall by the bobcat was where both retaining walls had subsequently collapsed in December 2014.
The respondent acknowledged the ‘bend in the wall’ in his SMS dated 27 October 2014. The respondent acknowledged that his landscaper should fix the bend in the wall. Somewhat surprisingly, he suggested that Mr Sinclair follow up getting Pink Diamond to repair the damage, which Mr Sinclair did that same day. However it appears that Mr Siljak did not get back to Mr Sinclair until 14 November 2014, when he advised him the landscaper would not be able to fix the wall until the New Year. In his SMS in reply to the respondent that day Mr Sinclair again referred to ‘how ridiculous the fence lean is now’ and his wish to put a gate up.
The Tribunal finds that the respondent had been put on notice of the structural issues pertaining to his retaining wall and fence on 12 September 2014 and acknowledged by the respondent on 27 October 2014. With the knowledge of these issues, the Tribunal finds that the respondent had a duty to the applicants to have had the issues with the fence and wall repaired in order to have avoided the damage which occurred on 7 December 2014.
Whether the respondent breached that duty of care
The respondent’s wall and fence fell over on 7 December 2014. Mr Akhyani’s evidence was that the respondent’s retaining wall structure, which was built some time after the applicants’ retaining wall, placed excessive pressure on the applicants’ wall. The respondent’s wall was built near the existing retaining wall, right on the boundary line, disregarding the zone of influence to the existing structure (the applicant’s retaining wall). It was built too close to the applicants’ wall. He also said that the footings for the respondent’s wall had not been deep enough.
Mr McPhan, in his report, stated that the sleeper wall he had installed for the respondent in 2014 was constructed as per the Australian Standard and within ACTPLA guidelines for retaining walls on boundaries. He said the sleeper wall was as per engineer standard of 1:1 ratio and that the footings for the wall 500 x 500 x 800 deep into solid ground and that this would be ample to support the boundary fencing bracing which was fixed to the wall.
He claimed in his report that the respondent’s wall sits up to 280mm within his property. However in his evidence he conceded that his figure was wrong and that the ACTPLA measurement of 50mm would be correct.
He subsequently claimed in his report that the cause of the damage to the retaining walls was the incorrect installation of the applicants’ retaining wall; the inadequate drainage and the incorrect backfilling.
The Tribunal is satisfied from considering all of the evidence that Mr McPhan had not taken the zone of influence, referred to by Mr Akhyani and ACTPLA in the report, into account. When asked in cross examination if he had taken the zone of influence into account, his response of ‘it was built within the boundary’ was evasive and unhelpful.
Mr McPhan’s evidence was unsatisfactory. He conceded that as he had built the respondent’s retaining wall which had collapsed he was an interested party.
His evidence that the applicants’ wall had been incorrectly installed and had inadequate drainage and backfilling was refuted by Mr Barton. Mr Barton had installed the applicants’ retaining wall. The Tribunal found Mr Barton’s evidence credible. Mr Akhyani also gave evidence, which the Tribunal accepted, that by using wooden sleepers for the retaining wall, the drainage issues had been accommodated.
The Tribunal has also taken into consideration the rainfall event which occurred in early December and which was relied on by the respondent to support his claim that the applicants’ drainage was inadequate and it was this failure which caused the simultaneous damage to the retaining walls.
The applicants’ wall had withstood other significant rainfall events in February, March, April, September and October 2014. This evidence is significant and was not challenged.
The applicants also said in their evidence that where the respondent and Mr McPhan alleged they had seen water pooling on 8 December 2014 was the day after 17mm of rain had fallen and at the end of a seven day period in which 43.4mm had fallen. The applicants also said that the site identified by the respondent and Mr McPhan as another source of pooling water was at the backyard tap where they watered the lawn. Mr McPhan was not a plumber. The respondent did not call evidence from a plumber. In the light of Mr Akhyani’s unchallenged evidence that the drainage issues were accommodated by the use of timber sleepers, the Tribunal rejects Mr McPhan’s evidence.
Mr Siljak conceded he did not have the details of the applicants’ wall. It appeared he was primarily relying on Mr McPhan’s report and evidence to identify the cause of the collapse of the retaining walls. The Tribunal has already found above that Mr McPhan’s evidence was unsatisfactory.
In his report Mr McPhan stated that the new retaining wall he had built for the respondent ‘was installed in the same manner as the original wall’. However, Mr Siljak told the Tribunal that Mr McPhan ‘did the footings twice as deep’.
Having considered all of the evidence the Tribunal finds that the cause of the damage to both of the retaining walls was the failure of the respondent’s retaining wall and this failure was caused by the respondent’s negligence.
Firstly, the Tribunal finds that when building the respondent’s retaining wall neither the respondent nor Mr McPhan took into account the zone of influence; secondly, the Tribunal finds that the respondent’s wall was built too close to the applicants’ wall which was a pre-existing structure; thirdly, the respondent’s retaining wall was not fit for its purpose and had inadequate footings; fourthly, the respondent’s retaining wall had been structurally weakened in or about September 2014 when a bobcat filling and compacting the ground on the respondent’s property had backed into the wall; fifthly, at this time there was an identified foreseeable risk of damage to the applicants’ retaining wall and sixthly, the respondent’s inaction when on notice for some two months to have the wall repaired led to the wall giving away and damaging the applicants’ wall.
What is the appropriate measure of the applicants’ damage?
The Tribunal is not satisfied, having considered all of the evidence, that the applicants removing parts of their damaged retaining wall has made the cost of repair more expensive.
The first quote was provided on 29 January 2015, before the applicants had removed parts of their retaining wall. That quote was from 4James Pty Ltd for $6,140.00 plus GST, totaling $6,754.00. The labour charge was $4,200.00. This quote provided for re-using the existing sleepers. The second quote from RilackLandscapes in May 2015 using new steel posts and new sleepers was $5,720 plus GST, totaling $6,292.00. The labour charge was not separately identified.
Mr Barton and Mr McIntyre both gave evidence that the work the subject of their quotes did not go beyond rectification. The Tribunal accepted their evidence. It was not challenged.
The respondent did not provide any or any credible evidence of the cost of repairing the applicants’ retaining wall.
The Tribunal is satisfied and finds that the appropriate measure of the applicants’ damage is the sum of $6,292.00 being the lesser of the two quotes.
Other matters
The applicants had raised concern that the same landscaper, Pink Diamond, had rebuilt the respondent’s wall still within the zone of influence.
The Tribunal noted Mr Siljak’s evidence that this time Pink Diamond had dug the footings twice as deep. In the absence of any other evidence, the Tribunal accepts Mr Siljak’s evidence.
The Counterclaim
Did the applicants owe a duty to the respondent to take all reasonable care and to exercise reasonable skill when building their retaining wall?
The short answer is ‘yes’.
As set out above, the Tribunal has found that the applicants and the respondent had an agreement in relation to the location of their respective retaining walls and the applicants’ had their retaining wall erected by Mr Barton on the agreed location on their property.
The Tribunal has already found Mr Barton a credible witness. The Tribunal is satisfied that he exercised reasonable care and skill when building the applicants’ retaining wall.
What was the scope of that duty?
The Tribunal has set out the scope of the duty in [104] above.
Having considered all of the evidence the Tribunal is satisfied and finds that the applicants observed the standard of care that a reasonable person in the applicants’ position and in possession of all of the information that the applicants had or ought to have reasonably have had when having their retaining wall built.
Whether the applicants breached that duty of care?
The Tribunal has already considered in paragraphs 113 to 126 above the respondent’s claim that the applicants breached their duty of care to him by incorrectly installing their retaining wall and by having inadequate drainage and incorrect backfilling.
For the reasons set out in paragraphs 113 to 126 the Tribunal is not satisfied that the applicants breached their duty of care to the respondent.
Therefore, it is not necessary to consider the issue of damages claimed by the respondent.
The cost of the timber fence
The respondent has sought payment for half of the cost of the timber fence from the applicants.
While neither party had made an application to the tribunal under of the Common Boundaries Act 1981 seeking a new fence determination the Tribunal notes that, had such an application been filed, section 10 of that Act sets out the tribunal’s powers. Subsection 10(3) states:
(3) If a party asks the ACAT to determine that a basic fence is to be erected between the parcels of land to which the application relates, the ACAT must not require the party to contribute more than ½ the cost of erecting a basic fence between the parcels.
Having considered the evidence the Tribunal is satisfied and finds that the applicants had agreed to pay half of the cost for a timber paling fence erected by the respondent and have not yet paid it. The Tribunal will make an order for the payment of this cost.
For the reasons set out above, the Tribunal is not satisfied that there is any merit in the counter claim for half of the boundary retaining wall cost and the costs to fix the boundary wall.
In relation to the respondent’s claim for his lost wages and legal fees subsections 48(1) and (2) of the ACAT Act provide:
48. Costs of proceedings
(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
(2) However—
(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant––
(i) the filing fee for the application; and
(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application;
It follows that the Tribunal is not satisfied it has the power to order that the applicant pay the respondent’s lost wages or his legal fees.
The respondent is entitled to judgment in the sum of $950.00 being half of the cost for erection of the timber paling common boundary fence plus the filing fee of $135.00.
Conclusion
For the reasons set out above, the Tribunal will enter judgment for the applicants in the sum of $6,292.00, plus the filing fee of $135.00 and Mr Akhyani’s fee of $297.00, totaling $6,724.00.
The Tribunal will enter judgment for the respondent on the counter claim in the sum of $950.00 plus the filing fee of $135.00, totaling $1,085.00.
The respondent is to pay to the applicants the sum of $5,637.00, being $6,724.00 in Order 1 less $1,085.00 in Order 2, by close of business 18 November 2015.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | XD 15/308 |
PARTIES, APPLICANT: | CASSANDRA SINCLAIR & ALISTAIR SINCLAIR |
PARTIES, RESPONDENT: | ANTHONY SILJAK |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | MORAY & AGNEW |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | MS E. SYMONS |
DATES OF HEARING: | 28 JULY 2015 & 18 SEPTEMBER 2015 |
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