Zeng v Crane - [2022] ACAT 70

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ZENG v CRANE & ANOR (Appeal) [2022] ACAT 70

AA 51/2021 (XD 478/2021)

Catchwords: APPEAL – civil dispute – probative evidence – onus of proof – role of Tribunal – whether there was error of fact or law by the Original Tribunal – appeal dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 22, 32, 33, 79, 82

Cases cited:Australian Broadcasting Authority v Project Blue Sky Inc. & Ors (1996) 71 FCR 465
Casino Canberra Limited 051 204 114 v Kidman [2022] ACAT 22
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435
De Flumeri v Canberra Discount Chemicals Pty Ltd & Anor [2016] ACAT 50
Sarbandi v Sharif [2017] ACAT 57
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
The Owners – Units Plan no 1475 v Davidson & Anor [2022] ACAT 10

Tribunal:Presidential Member H Robinson
Senior Member J Lennard

Date of Orders:  17 August 2022
Date of Reasons for Decision:      17 August 2022
AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 51/2021

BETWEEN:

SU ZENG
Appellant

AND:

MARC CRANE
First Respondent

SARA FARRELL
Second Respondent

APPEAL TRIBUNAL: Presidential Member H Robinson
Senior Member J Lennard

DATE:17 August 2022

ORDER

The Tribunal orders that:

The appeal is dismissed.

………………………………..
Presidential Member H Robinson
For & on behalf of the Tribunal

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal (the Original Tribunal) in Zeng v Marc Crane & Sara Farrell (XD 478 of 2021). The application concerns a claim for nuisance and trespass relating to a neighbourhood dispute.

The parties

The appellant and the respondents are neighbours. Their properties share a common boundary, on which is located a Colorbond fence.
Unusually, the stormwater access point is located on the boundary between the properties, accessible from either property.

The original application

The appellant (then applicant) lodged her civil dispute application on 17 May 2021 (the application).
In that application, the appellant asked for three orders:
(a)Commitment to no further acts that interfere with my property;
(b)Formal written apology for trespass on my property; and
(c)Commitment to not further trespass on my property.
In her application and then in response to directions made by the Tribunal, the appellant submitted materials and evidence alleging three incidents giving rise to causes of action against the respondents.
The first incident happened in October 2016. The appellant says that she returned home from a vacation to find that a channel had been cut into her premises through the concrete which surrounded her garage. She surmises that the purpose of this was to allow water to flow from her neighbours’ property to her own (the first trespass claim).
The second incident happened on 3 October 2019. The appellant returned to her property after a short period away to find a man standing in the middle of her backyard. The man identified himself an officer of the ACT…

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.

Continue reading Zeng v Crane

Details

AGLC: Zeng v Crane & Anor (Appeal) [2022] ACAT 70
Case: [2022] ACAT 70
Decision Date: 17 August 2022

CaseChat Overview and Summary

The case of Zeng v Crane involved an appeal by the respondent against a decision made by a tribunal. The dispute arose from a civil matter where the tribunal had to assess certain evidence and make findings. The appeal was heard by the Tribunal, which was tasked with determining whether the original tribunal had erred in its assessment of the evidence, and if there was any mistake in the application of the law.

The legal issues before the court included whether the evidence presented was sufficiently probative to support the tribunal’s findings. Additionally, the court needed to consider the onus of proof and the role of the tribunal in evaluating the probative value of evidence. The appeal also questioned whether there was any factual or legal error in the original tribunal’s decision-making process.

In dismissing the appeal, the Tribunal found no error in the original tribunal’s assessment of the evidence. The court held that the evidence presented was adequate to support the tribunal's findings and that there was no misapplication of the law. The Tribunal emphasised the importance of the original tribunal's role in determining the probative value of evidence and concluded that it had exercised its discretion appropriately. The appeal was thus dismissed, affirming the original tribunal's decision.

Orders

Orders of the court

The Tribunal orders that:

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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