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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CHEN v GHILDYAL & ANOR; GHILDYAL & ANOR v CHEN (Civil Dispute) [2019] ACAT 25
XD 325/2018
Catchwords: CIVIL DISPUTE – fence dispute – subsidence of land – follow-on litigation – no trespass – nuisance – negligence – damages for interference with enjoyment of land
Legislation cited: Civil Law (Wrongs) Act 2002 ss 35, 42, 43, 44, 46, 141Common Boundaries Act 1981 ss 6, 10, 11
SubordinateLegislation cited: Excavation Work Code of Practice (March 2015)
Territory Plan 2008 Single Dwelling Housing Development CodeWork Health and Safety (Excavation Work Code of Practice) Approval 2015
Cases cited: Chen v Ghildyal [2018] ACTCA 52 (unreported)Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSWLR 486Holbeck Hall Hotel Ltd & Anor v Scarborough Borough Council [2000] QB 836Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWC 230March v Stramare (E & MH) Pty Ltd [1991] HCA 12Munro v Southern Dairies Ltd [1955] VLR 332NSW v Ibbett [2005] NSWCA 445Royall v The Queen (1991) HCA 27Schenker AG and Schenker (NZ) Limited v Commerce Commissions [2013] NZCA 114
List of Texts/Papers cited: Allan Anforth, Peter Christensen & Christopher Adkins,
Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017)Caron Beaton-Wells, ‘Private Enforcement of Competition Law in Australia – Inching Forwards’ (2016) 39(3) Melbourne University Law Review 681Justice James Edelman, ‘Understanding Causation and Attribution of Responsibility’ (Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015)
Tribunal: Senior Member L Beacroft
Date of Orders: 21 February 2019Date of Reasons for Decision: 21 February 2019
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AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 325/2018
BETWEEN:
YIJUAN CHENApplicant (Fence Dispute Application)
Respondent (Civil Dispute Application)
AND:
AMIT GHILDYALFirst Respondent (Fence Dispute Application)
First Applicant (Civil Dispute Application)
REENA GHILDYALSecond Respondent (Fence Dispute Application)
Second Applicant (Civil Dispute Application)
TRIBUNAL: Senior Member L Beacroft
DATE: 21 February 2019
ORDER
The Tribunal orders that:
1. In relation to the Fence Dispute Application dated 20 March 2018:
a) Mr Chen will build a replacement fence along the common boundary of
11 Bellbird Loop and 13 Bellbird Loop, Lawson, ACT as shown in the survey
by Brian Milburn and Associates Land Surveyors dated 9 April 2018 (at
Attachment A) by close of business on Friday 19 April 2019.
b) The fence will be 1.8 metres high, lapped paling timber, metal capped, with
the steel posts of the fence facing the Ghildyals’ property.
c) As far as practically achievable, the centre of the fence palings will be on the
surveyed boundary line, and the fence will be no more than 11cms on either of
the properties as measured from the centre of the palings (the surveyed
boundary line) until close of business 19 April 2020.
d) The fence gate and the back fence on the Ghildyals’ property will be
re-fastened to the replacement fence once it is installed.
e) Mr Chen will arrange for a surveyor to re-survey the fence to check that it is
positioned correctly and within the tolerance specified in this Order and
provide a copy of this survey to the Ghildyals within 24 hours of Mr Chen
receiving it.
f) Mr Chen will pay the full cost of the replacement fence materials and its
installation, and also the full cost of the survey.
g) The Ghildyals will allow Mr Chen, any contractors and the surveyor
reasonable access to their property to allow all aspects of Order 1 to be met.
2. In relation to the Civil Dispute Application dated 24 May 2018:
a) Mr Chen will pay to Mr and Mrs Ghildyal the sum of $12,778.38 by close of
business on Friday 19 April 2019.
b) Mr Chen will arrange to have any temporary fencing, temporary props and
other temporary structures on the Ghildyals’ property removed at his own
expense by close of business on Friday 19 April 2019.
c) The Ghildyals will allow Mr Chen and his contractors reasonable access to
their property to allow all aspects of paragraph (b) of Order 2 to be met.
3. Mr Chen will arrange for the report of ACT Geotechnical Engineers Pty Ltd dated
2 May 2018 to be amended, as set out in the Ghildyals’ email and attachment to
Mr Chen’s solicitor dated 16 November 2018, and provide that amended report to
the Ghildyals by close of business on 19 April 2019.
4. Mr Chen is to pay to the Tribunal the fee for the second day of the hearing, being
$153, by close of business on 19 April 2019.
5. The Registrar is directed to refer the applicant’s certifier, Mr Joseph Fekete, to the
Construction Occupations Registrar for consideration of the question of whether
disciplinary or other action should be taken in relation to Mr Fekete in respect of the
advice allegedly given to the applicant by Mr Fekete to the effect that the
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application for development approval was exempt from compliance with Rule 20 of
the Single Dwelling Housing Development Code (as outlined in paragraph 38 of the
attached reasons for decision).
………………………………..Senior Member L Beacroft
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REASONS FOR DECISION
1. The reasons for the order above are set out below.
Background
2. In summary, the case is a dispute between neighbours. Mr Chen owns a property in
Lawson (Chen property) and the Ghildyals own a neighbouring property
(Ghildyals’ property). The Ghildyals had built their house some months before
Mr Chen began work on his house. Mr Chen was concerned about a common fence
with the Ghildyals (the disputed fence), in that he contended that it encroached on
to his property. He filed a Fence Dispute Application with the ACT Civil and
Administrative Tribunal (the tribunal), dated 20 March 2018 (XD 325/2018).
3. Mr Chen was a licensed owner builder, having completed a course and “passed the
exam with a score 97 (out of 100).”1 He engaged Richard Kozjak of Sentient Pty
Ltd, a licensed builder, to be the principal contractor to assist him.2 Mr Chen
undertook work to construct his house, having obtained planning approvals with the
assistance of a certifier. His works involved excavating on the common boundary
with the Ghildyals’ property. The Ghildyals became concerned about undermining
of the disputed fence and encroachment onto their land, and sent an email to Mr
Chen stating their concerns and reminding him of his fence dispute application
before the tribunal.3 On 27 March 2018, the face of the excavation area collapsed
such that the Ghildyals’ property was affected, and remediation was necessary.
4. The Ghildyals notified WorkSafe ACT, and WorkSafe ACT first inspected the
properties on 28 March 2018.4 WorkSafe ACT relied on the geotechnical engineer
engaged by Mr Chen to remediate the situation.5 WorkSafe ACT contacted Mr Chen
on 2 May 2018 advising him that they had no remaining concerns about the
situation.6 WorkSafe ACT emailed the Ghildyals on 15 October 2018 advising them
1 Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 2, [5]2 Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 2, p[6]3 Transcript of proceedings 9 November 2018, page 3454 Transcript of proceedings 8 November 2018 page 1365 Transcript of proceedings 8 November 2018 page 1416 Exhibit C17
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similarly,7 however WorkSafe ACT did not require the builder to remove the
temporary fence or props because of the ongoing litigation.8
5. Mr Chen contended that he promptly and fully implemented the recommendations in
the geotechnical report dated 28 March 20189 to fully make safe and remediate the
situation.10 He said that this was confirmed by a report dated 2 May 2018 from
ACT Geotechnical Engineers Pty Ltd that states “[i]t is assessed that the batter has
now been stabilised in accordance with our recommendations, with a structural
retaining wall constructed and backfilled based on our advice”.11
6. The Ghildyals obtained a copy of Mr Chen’s plans under freedom of information
laws12 and raised questions with the relevant regulatory areas about planning
approval issues. The Investigations Team, Access Canberra, first inspected the
properties on 4 March 2018, and an investigation was undertaken which concluded
that Rule 20 of the Single Dwelling Housing Development Code was not complied
with, due in part to the wall being “2.15m and 1.65m from natural ground level”
compared to the allowable 1.5m.13 As a result, a ‘Stop [work] Notice’ dated 31
August 2018 was issued to Mr Chen because the building work was “without
development approval.”14 Notice was given to Mr Chen on 27 September 2018 by
the ACT Government that “the stop work notice is no longer in force.”15
7. On 6 April 2018 the Ghildyals successfully obtained an injunction from the
ACT Supreme Court that required Mr Chen to stop work on the common boundary
of the properties and to take remediation action. A later decision of the Supreme
Court awarded costs to the Ghildyals, with the Chief Justice stating “there is no
doubt in my mind on the basis of albeit limited material before me that there was a
7 Exhibit C48 Transcript of proceedings 8 November 2018 pages 141-1429 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 201810 Amended Civil Dispute Application 10 August 2018, Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 6-811 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 2 May 2018 – Final Certification’ 2 May 2018 page 212 Transcript of proceedings 9 November 2018 page 33213 Access Canberra ‘Investigations Team Inspection Record’ completed 4 September 2018 12:07pm page 3 14 ACT Government Stop Notice dated 31 August 2018 15 Exhibit C15
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trespass and that [the Ghildyals] had a good reason to seek relief … justice requires
that [Mr Chen] pay [the Ghildyals’] costs of the injunction proceedings”.16 The cost
decision was appealed unsuccessfully, with Justice Loukas-Karlsson noting that the
primary judge had found “there appears to have been a significant trespass” and the
Ghildyals had found the “collapse … most distressing.”17
8. The Ghildyals filed a Civil Dispute Application with the tribunal on 24 May 2018,
later amended on 10 August 2018. The initial application claimed trespass, nuisance
and negligence and compensation of $53,554.08 (capped at the tribunal’s
jurisdictional limit of $25,000) plus reimbursement of tribunal fees; this claim for
compensation was later amended to $25,000 plus reimbursement of tribunal fees.
Interest was claimed in the Amended Civil Dispute Application dated 10 August
2018, from “the date of cost incurred”. Mr Chen seeks an order for a new fence in
his Amended Fence Dispute Application filed on 10 August 2018, and denies
liability for payment of any damages to the Ghildyals in his Response to the Civil
Dispute Application filed on 14 June 2018.
Issues and law
Fence Dispute Application - issue
9. What is the most appropriate order to be made by the Tribunal under the Common
Boundaries Act 1981 (the Act)? The Tribunal notes that the parties agree on most
elements of the replacement fence and the Tribunal has been asked to make a
determination to this effect, and about the disputed elements.
Civil Dispute Application - issue
10. Is Mr Chen liable to pay the Ghildyals damages as they claim and, if so, on what basis
and in what sum?
Fence Dispute Application - law
11. The fence dispute is made under the Act. The tribunal has powers under the Act to
determine if a fence should be replaced/repaired, the nature of any replacement
fence and arrangements between the parties for paying for and doing the fence
works.18
16 Transcript of proceedings in the Supreme Court of the Australian Capital Territory 30 July 2018 page 14 (SC No 151 of 2018)17 Chen v Ghildyal [2018] ACTCA 52 (unreported) [19] and [39]18 Common Boundaries Act 1981 section 11
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Civil Dispute Application - law
12. Trespass, nuisance, and negligence are separate actions. Trespass can be summarised
as intentionally or negligently entering or remaining on land, or directly causing any
physical matter to come into contact with land, the land being in the possession of
another person. It is a defence to trespass if the trespass was because of negligence
and the trespasser “made a reasonable offer to make amends … before the action
was brought.”19
13. Nuisance is essentially an action concerning loss of enjoyment of land, and substantial
interference must be shown.
14. Negligence is a breach of duty that results in damages. Under the Civil Law (Wrongs)
Act 2002, in deciding the standard of care the test is that of “a reasonable person in
[Mr Chen’s] position who was in possession of all the information that [Mr Chen]
either had, or ought reasonably to have had, at the time of the incident out of which
the harm arose.”20 A person is not negligent for not taking precautions unless the
risk “was foreseeable” and “was not insignificant” and “in the circumstances, a
reasonable person in the person’s position would have taken those precautions.”21
The Civil Law (Wrongs) Act 2002 sets out considerations when determining if a
reasonable person would have taken precautions: probability that the harm would
happen without precautions; the burden of taking precautions; and the social utility
of the activity creating the risk of harm.22
15. In this case, the issue about whether any or all of these actions is made out largely
rests with whether Mr Chen caused the subsidence of the Ghildyals’ land and, if so,
whether the subsidence of the land has been fully remedied so that no damages are
payable. The Ghildyals bear the burden of proving on the balance of probabilities
any fact relevant to the issue of causation23 and their case as a whole.
19 Civil Law (Wrongs) Act 2002 section 141(b) and (c)20 Civil Law (Wrongs) Act 2002 section 4221 Civil Law (Wrongs) Act 2002 section 43(1)22 Civil Law (Wrongs) Act 2002 sections 43(2) and 4423 Civil Law (Wrongs) Act 2002 section 46
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16. If any of these causes of action are successful the issue of damage arises. The general
principle is that the harmed person is restored to the position they would have been
in had the wrong not been committed. Damages includes financial loss, such as the
cost of remediation or loss of market value, and it also includes non-financial loss
such as interference with the enjoyment of land.24 Aggravated damages can be
awarded where the person who commits the harm has behaved poorly and, while
generally not available for negligence actions, are available for trespass.
Exemplary damages may be awarded, usually for actions where intention to do
harm is proven. In some circumstances, damages can include an award for
inconvenience.25
17. In this case there were concurrent proceedings in the Supreme Court of the Australian
Capital Territory for a period of time that traversed some issues of relevance to the
tribunal proceedings. There are very limited circumstances where follow-on
litigation such as that before the Tribunal can rely on findings from earlier or other
proceedings, in the absence of a statutory basis to do so.26 The Tribunal notes that
the proceedings in the Supreme Court were for an urgent injunction initially heard
ex-parte, followed by appeal proceedings on costs only. Given this, the Tribunal
does not adopt the findings made by the Supreme Court (referred to at paragraph 7
above). However, the Supreme Court findings are considered in the Tribunal’s
assessment of evidence.
Mr Chen’s contentions
Fence issue
18. In his Amended Fence Dispute Application dated 10 August 2018, Mr Chen sought an
order to repair the fence in terms that were largely agreed to by the parties (refer to
paragraph 20 below). Mr Chen’s amended application attached a survey dated
9 April 2018 (second Milburn survey), by Brian Milburn and Associates,
Consultant Surveyors, and Mr Chen proposed that the “center of the fence panel is
24 Munro v Southern Dairies Ltd [1955] VLR 332 [335]25 Allan Anforth, Peter Christensen & Christopher Adkins, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017) [2.187.5]26 Caron Beaton-Wells, Private Enforcement of Competition Law in Australia – Inching Forwards’ (2016) 39(3) Melbourne University Law Review 681; Schenker AG and Schenker (NZ) Limited v Commerce Commissions [2013] NZCA 114
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at the surveyed boundary line” as shown in that survey, which was agreed to at the
hearing by the Ghildyals. However, the Ghildyals had concerns about a similar
fence dispute arising in the future, and at the hearing sought amended and further
terms about the replacement fence to avoid this occurring, as set out later below (see
paragraphs 30 to 31).
Damages issue
19. Mr Chen denied any liability for damages. His contentions are detailed in his written
submissions and in his submissions made at hearing, including in his oral evidence.
In short, Mr Chen contended that he had not trespassed, there was no nuisance, and
that he had not been negligent. He contended that there was no “direct entry by the
excavator” on to the Ghildyals’ land and it was “caused by the slippage of rock
structures underneath the subsurface.”27 Mr Chen contended that there was not an
interference with the Ghildyals’ enjoyment of their land that was “substantial and
unreasonable”.28 In regard to the claim of negligence, Mr Chen contended that he
did not cause the subsidence, that it was not foreseeable, and that he had taken
reasonable measures to prevent it. In any case, Mr Chen contended that in having
fully remedied the subsidence at his cost, no damages are due, and damages are not
payable for mere inconvenience.
The Ghildyals contentions
Fence issue
20. By the hearing, the placement and nature of the replacement fence was agreed to by
the Ghildyals, and Mr Chen agreed to re-survey the replacement fence at his
expense once fully erected to ensure that it was on the boundary and within the
required tolerance.29 The single disputed issue in the fence dispute was the
allowable tolerance for any replacement fence, so that the parties did not find
themselves returning to the tribunal with a similar fence dispute in the near future.
Damages issue
21. The Ghildyals’ Civil Dispute Application dated 10 August 2018 claimed damages in
the sum of $25,000 which is the tribunal’s maximum limit for a damages award,
plus interest from “the date of cost incurred” and reimbursement of any tribunal fees
27 Exhibit C1 (Mr Chen’s Amended Response undated) page 128 Exhibit C1 (Mr Chen’s Amended Response undated) page 229 Transcript of proceedings 8 November 2018 pages 15-19
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such as the (paid) fees for issue of subpoenas totalling $129 and the (unpaid) fee of
$153 for the second day of hearing. The Tribunal determined at the hearing that the
cost of the second day of hearing, being $153, was a cost payable by the Ghildyals
since it was their damages claim that led to the expanded hearing time,30 and that if
successful this cost would be paid by Mr Chen to the tribunal. The Ghildyals
claimed damages for loss of enjoyment of the deck and their land from 27 March
2018 to date, and also the costs of reports,31 economic loss including the costs of
alternative accommodation,32 “stress, grief and suffering”,33 and their time in dealing
with the matters before the Tribunal.34
22. The report costs that they sought reimbursement for were as follows: 35
(a) geotechnical work done by Douglas Partners Pty Ltd –– $2,612.50 including
for Dilapidation Report (Invoice 166127) and $1,650 including for reporting
(Invoice 165911);
(b) Lonergan Surveying Pty Ltd –– $1,034 including for Report (Invoice 0412)
and $1,320 including for survey (Invoice 0411);
(c) John W Foxlee and Associates –– $440 for survey and certificate
(Invoice 2280); and
(d) Tony Gray Building Services Pty Ltd $275 for building advice
(Invoice 9 July 2018)
being a total of $7,331.50.
23. The costs of other accommodation they claimed were for three nights from
31 March 2018 to 3 April 2018 in the sum of $546.50 and another night in late May
2018 for $80,36 being a total of $626.50. They claimed for parking while dealing
with various aspects of the situation in the sum of $88.71,37 and for their time. They
30 Transcript of proceedings 8 November 2018 pages 6-731 Amended Civil Dispute Application 10 August 2018 Attachment 2932 Amended Civil Dispute Application 10 August 2018 Attachment 3033 Amended Civil Dispute Application 10 August 2018 Attachment 3134 Amended Civil Dispute Application 10 August 2018 page 7, [51]35 Amended Civil Dispute Application 10 August 2018 Attachment 2936 Amended Civil Dispute Application 10 August 2018 Attachment 3037 Amended Civil Dispute Application 10 August 2018 Attachment 30
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also claimed the cost of the disputed fence that they had fully paid for, which
appears to be the sum of $1,070.30.38
24. The basis for the damages claim was negligence and/or trespass and/or nuisance. The
Ghildyals contended that Mr Chen had excavated into their property and/or caused
an encroachment into their property without their consent. They contended that at
its maximum the encroachment was 1.42 metres vertically and 3.95 metres deep.39
They claimed that Mr Chen did not have the necessary planning approvals to
undertake the excavation, and that the work Mr Chen undertook breached work safe
requirements and standards,40 including the Excavation Work Code of Practice
approved under the Work Health and Safety (Excavation Work Code of Practice)
Approval 2015.
Findings
Fence issue
25. What is the most appropriate order to be made by the Tribunal under the Act? ––
noting the parties agree on most elements of the new fence and the Tribunal has
been asked to make a determination to this effect and about the disputed elements.
26. The survey prepared for the Ghildyals by John Foxlee, Registered Surveyor (Foxlee
survey) advised that the existing fences, “[e]xcept for some minor regularities [sic]
… are generally on the boundary line within accepted tolerances.”41 The survey
prepared for Mr Chen by Brian Milburn, Registered Land Surveyor, dated
10 January 2018 (first Milburn survey) concluded that the fence “encroached on
[Mr Chen’s] property by approximately 10 centimetres.”42 A third survey prepared
by Lonergan Surveying did not dispute the surveyed boundary between the parties,
and was prepared to identify the extent to which the excavated area encroached on
the Ghildyals’ property.43 It emerged during the hearing that the difference between
the conclusions of the Foxlee survey and the first Milburn survey about whether the
disputed fence was correctly located on the boundary concerned the acceptable 38 Amended Civil Dispute Application 10 August 2018 Attachment 3039 Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying ‘Partial Identification Survey 9 April 2018) 40 Amended Civil Dispute Application 10 August 2018 pages 5-6, [47]-[51] 41 John W Foxlee & Associates Surveyor’s Certificate 29 March 201842 Affidavit of Brian Milburn 1 November 2018 [4]-[5]43 Amended Civil Dispute Application 10 August 2018 Attachment 9 (Email from Lonergan Surveying 4 April 2018 6:52pm)
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tolerance for a fence of that nature (the disputed fence was capped lapped timber
palings).44
27. Mr Chen raised that the ACT Planning & Land Authority provided information about
regulations that allow a “boundary fence” to “have the centre of its panelling up to
25mm either side of the boundary”45: the Tribunal understands this information (a
fact sheet dated August 2008) to refer to requirements under Schedule 1A of the
Planning and Development Regulation 2008. That Schedule specifies tolerances to
determine whether a development is exempt from requiring development approval
or whether a development approval requires amendment.46 However the application
before the Tribunal concerns the repair of an existing fence and whether it should be
replaced due to an alleged defect in its positioning in respect of the boundary, under
the Act.47 The Tribunal does not accept that the allowable tolerance for all fences as
a matter of law is 25mm under the Act.
28. By the date of the hearing, the fence in dispute was no longer standing – it had either
fallen down or been removed, and a temporary portable fence was in place.48 At the
date of the hearing a ‘block wall’ was completed on Mr Chen’s property near the
boundary, and Mr Chen sought to have the replacement fence erected at his expense
adjacent to this block wall on the boundary as shown in the second Milburn
survey.49 At the hearing, the placement and nature of the replacement fence was
agreed to by the Ghildyals, and Mr Chen agreed to re-survey the replacement fence
at his expense once fully erected to ensure that it was on the boundary and within
the required tolerance.50 The single disputed issue in the fence dispute was the
allowable tolerance for any replacement fence so that the parties did not find
themselves again in tribunal proceedings.
44 Transcript of proceedings 8 November 2018 pages 70-7145 Attachment to Fence Dispute Application 20 March 2018 (ACT Planning and Land Authority ‘Changes to the planning system’ August 2008 available at https://www.planning.act.gov.au/__data/assets/pdf_file/0006/891519/Building_Tolerances.pdf)46 Planning and Development Regulation 2008 sections 20 and 3547 Amended Fence Dispute Application 10 August 2018; Common Boundaries Act 1981 sections 6 and 1148 Respondent’s Closing Submissions 10 December 2018 [8]49 Amended Fence Dispute Application Attachment A 10 August 201850 Transcript of proceedings 8 November 2018 pages 15-19
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29. In finding that the allowable tolerance for all fences is not 25mm in matters under the
Act, it is illogical for the Tribunal to determine in these proceedings the exact
tolerance for the life of a replacement fence not yet erected. The Tribunal’s order
therefore sets out the tolerance of the replacement fence applicable to close of
business 19 April 2020.
30. To provide guidance for the parties for any future fence disputes, the Tribunal finds
that it would not have made an order to have the disputed fence, now not in place,
be replaced, and would have dismissed Mr Chen’s initial Fence Dispute
Application. Even if the tolerance for planning purposes is used as a guide, then the
encroachment of the disputed fence was only 1.5cms beyond this tolerance and this
is only in a part of the disputed fence: assuming the fence is 14cms wide and a
tolerance of 2.5cms either side, then the fence could be 9.5cms over on Mr Chen’s
property. Even though a part of the disputed fence was 11cms over into Mr Chen’s
property (assuming a fence of 14cms width, then 3cms in the Ghildyals’ property)
as measured from the centre of the capped lapped palings, in another part it was
only 4cms over into Mr Chen’s property (so 10cms on the Ghildyals’ property). Mr
Foxlee explained that the disputed fence was “running at a bit of an angle.”51 Mr
Foxlee also said that a timber fence has no set tolerance due to its ability to
change,52 as set out in more detail below. The Tribunal finds that the disputed fence
presented a situation where the parties each suffered an advantage and disadvantage
in its angled placement, and the deviation from the boundary of the disputed timber
fence was not significant for either party.
31. Considering now the tolerance to be stated in the orders for the replacement fence, and
applicable to 19 April 2020, the Tribunal notes that Mr Foxlee said that the
tolerance for a timber fence is not set because it isn’t a robust structure like a brick
wall –– it can move and warp, and indeed another survey on another day might find
a different measurement of its proximity to the boundary line. It was on this basis
that Mr Foxlee concluded that the disputed fence was generally on the boundary and
within allowable tolerances.53 Accepting Mr Foxlee’s evidence and given the agreed
replacement fence will be a metal capped lapped timber paling fence of
51 Transcript of proceedings 8 November 2018 page 7652 Transcript of proceedings 8 November 2018 page 6953Transcript of proceedings 8 November 2018 pages 69-71
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approximately 14cms width, the Tribunal orders that the parties work to a tolerance
of approximately 11cms as measured from the centre of the lapped palings (7cms
being approximately half of the fence width, plus 4cms being a tolerance suited to a
non-robust fence, meaning that up to 11cms can be on each of the parties’
properties). The Tribunal notes that environmental circumstances can lead to a fence
moving or changing over time and therefore does not make a determination that this
is the tolerance for the replacement fence forever in the future, only to close of
business 19 April 2020.
Damages issue
Trespass
32. The Ghildyals must prove on the balance of probabilities that Mr Chen trespassed on
their land. This requires proof that Mr Chen intentionally or negligently entered
the Ghildyals’ property or directly caused a physical matter to come into contact
with their property. In the Tribunal’s view, this test in this case can be reduced to
the question of whether the excavator entered the Ghildyals’ property. The Tribunal
finds that there is insufficient evidence that the encroachment onto the Ghildyals’
property was a result of an entry by the excavator onto the Ghildyals’ property.
33. The principal contractor, Mr Richard Kozjak of Sentient Pty Ltd, and the excavator
operator, Mr Edmund Krizaic of Ortus Projects Pty Ltd, both said that they did not
excavate beyond Mr Chen’s boundary, or indeed under the fence.54 Mr Chen also
stated this in his oral evidence.55 His email to the Ghildyals dated 26 March 2018
appears to be contradictory to this evidence56 but he provided some explanation of
this.57 In any case, the email does confirm Mr Chen’s intention to only excavate to
the survey line –– so, within his property –– even if it is provocative, given the
fence dispute remained unresolved at that time. The fact that Mr Chen thought he
had planning approval to excavate to the common boundary supports a finding that
his intention was not to trespass, just to do what he thought he lawfully was
approved to do on his own property. It turned out that he was not approved to
excavate but this does not prove trespass; however it is relevant to the issue of
whether there was negligence as set out later (see paragraphs 36 to 46, below). The 54 Transcript of proceedings 9 November 2018 pages 263 and 29755 Transcript of proceedings 9 November 2018 page 34256 Exhibit C1657 Transcript of proceedings 9 November 2018 pages 344-346
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propping of the disputed fence does not provide evidence of trespass, since this
propping was required even to excavate on the fence line.58 None of the experts
were able to identify the exact line of excavation due to the effects of the slippage
and the passage of time when they attended, and so were not able to contradict
Mr Chen’s submission that the excavator did not enter the Ghildyals’ property.59
34. While the Supreme Court stated that it found there was a trespass (refer to
paragraph 7, above), it is significant that this finding was made on the limited
evidence before it for the purposes of an urgent injunction, which was initially heard
ex-parte. The Tribunal is not bound by this finding.
35. While not finding trespass, the Tribunal accepts that the survey conducted by
Matt Stevenson on 4 April 201860 shows that face of the excavation area by then
was over into the Ghildyals’ property at a depth of 3.95 metres and a distance of
1.42 metres at its maximum.61 Also, it shows that the face of the excavation area
was over into the Ghildyals’ property along most of the boundary –– for example,
43cms at one end of the common boundary.62 This latter fact, in the Tribunal’s view,
shows that the effects of any slippage were not just concentrated in one part of the
excavation.63 Mr Murray said that the slippage happened on a “portion” of the
excavation line,64 but the Tribunal finds that its effects were more widespread than
that one portion, given the encroachment on to the Ghildyals property is along
almost the entire face of the excavation area, even allowing for any trimming. In
regard to the level of trimming, the report of ACT Geotechnical Engineers Pty Ltd
dated 28 March 2018 recommended significant care, for example batter cleaning on
a daily basis,65 which the Tribunal finds on the evidence did not occur (refer to
paragraphs 54 to 55 below). All of the matters raised in this paragraph do not prove
trespass, but are relevant to whether there was negligence.58 Transcript of proceedings 9 November 2018 page 31259 Transcript of proceedings 8 November 2018 page 5960 Transcript of proceedings 8 November 2018 page 58 [11]61 Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying ‘Partial Identification Survey’ 9 April 2018)62 Transcript of proceedings 8 November 2018 page 6063 Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying Partial Identification Survey 9 April 2018); Transcript of proceedings 8 November 2018 page 6064 Transcript of proceedings 8 November 2018 page 9265 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2
15
Negligence
36. Negligence is a breach of duty that results in damages. The Tribunal finds that
Mr Chen breached his duty of care which caused harm to the Ghildyals, and that he
owes damages to them.
37. The test is that of a “reasonable person in [Mr Chen’s] position who was in possession
of all the information that [Mr Chen] either had, or ought reasonably to have had, at
the time of the incident out of which the harm arose.”66 As a neighbour, and in his
capacity as a licensed owner/builder, Mr Chen owed a duty of care to the Ghildyals.
Mr Chen completed the owner/builder course and indeed he stated that he excelled
in this course.67 Mr Chen had experts advising him. Mr Chen owed a standard of
care above that of the ordinary person, above that of a mere customer of a building
company. As the licensed owner/builder, he had a duty to exercise sound judgment
in managing the development which involved complying with requirements and
seeking further advice from experts as required. Mr Chen is liable for the work
undertaken by his contractors.
38. The Tribunal finds that he breached his duty of care in that he excavated on the
common boundary contrary to Rule 20 of the Single Dwelling Housing
Development Code. As the building inspector advised in the letter to Mr Chen dated
27 September 2018 upon lifting the stop notice, the stop notice dated 31 August
2018 was issued because Mr Chen was undertaking “building work … without
development approval [under] s53(1)(f) of the [Building Act 2004]”.68 Mr Chen said
in his oral evidence that he has come to realise that his original certifier,
Mr Joseph Fekete of Canberra Region Building Certifiers, had incorrectly shown
the application for development approval as exempt when it was subject to
compliance with Rule 20: “The maximum cut or fill within 1.5m of side and rear
boundaries is 1.5m.”
39. After replacing his certifier, Mr Chen said that his amended plan was compliant, and it
was works consistent with this compliant plan that had been done in recent months.
While it is unfortunate if Mr Chen received a poor service from his certifier, he
66 Civil Law (Wrongs) Act 2002 section 4267 Amended Civil Dispute Application 10 August 2018 Attachment 26 (Affidavit of Mr Chen 11 July 2018) page 268 Exhibit C15
16
cannot use this as a defence to the Ghildyals’ claims against him. As the licensed
owner/builder, Mr Chen is legally responsible for the work on his property: any
liability in this case that arises from those work, and it is a matter for Mr Chen
whether he pursues contractors for any liability they may have to him.
40. Mr Chen contended that the interference with the Ghildyals property was due to a
natural occurrence –– that is, the slippage of the rock –– and not caused by
Mr Chen’s actions. The legal test for causation in Australia has been well
summarised by Justice Edelman writing extra-judicially. In summary, as he
explains:
An event will only ever be a cause of an outcome if the event is necessary for the outcome. That is, causation requires that the outcome would not have occurred ‘but for’ the event.69
41. Justice Edelman explains that the ‘but-for’ test is moderated by the common-sense
approach set out by Mason CJ in March v Stramare (E & MH) Pty Ltd70 who
regarded the ‘but-for test’ as inadequate in some situations: for example, where
there are “two or more acts or events each of which would be sufficient to bring
about the plaintiff’s injury.”71 As Justice Edelman points out, a majority of the High
Court adopted this ‘common-sense’ approach in Royall v The Queen (1991) HCA
27 and held that causation is a “question to be determined by [the jury] applying
their common sense to the facts as they find them.”72 He points out that overall,
across Australia, statute law is incorporating the ‘but-for’ test into law: for example,
see the Civil Law (Wrongs) Act 2002, where the ‘necessity’ test for causation is to
be applied in negligence actions in the Australian Capital Territory.
42. In this case, Mr Chen is responsible for a non-compliant excavation being undertaken,
without adequate precautions, which resulted in a foreseeable slippage of soil and
rock which caused harm to the Ghildyals. Rule 20 of the Single Dwelling Housing
Development Code is stated above (at paragraph 38), and the associated criterion
requires that “[c]ut and fill is limited so that [amongst other things] stability of the 69 Justice Edelman, “Understanding Causation and Attribution of Responsibility”: Paper presented at the Commercial Conference of the Supreme Court of Victoria, University of Melbourne, 7 September 2015 page 170 March v Stramare (E & MH) Pty Ltd [1991] HCA 12 [21]71 March v Stramare (E & MH) Pty Ltd [1991] HCA 12 [22]72 Royall v The Queen (1991) HCA 27 [17] quoting Campbell v The Queen (1981) WAR 286 per Burt CJ [290]
17
block and adjoining blocks” is achieved. A consequence of Mr Chen’s development
being non-compliant with Rule 20 is that stability of the land being excavated was
not achieved: no geotechnical report was done before the excavation began to guide
the excavation works, and neither Mr Chen nor any of his witnesses could
demonstrate that an adequate risk assessment of the excavation works had occurred.
The slippage occurred on the same day that the excavation of the boundary was
completed, so was proximate in time. ‘But for’ this non-compliant excavation, the
slippage would not have occurred on the common boundary.
43. A person is not negligent for not taking precautions unless “the risk was foreseeable”,
the risk was “not insignificant” and “in the circumstances a reasonable person in the
person’s position would have taken those precautions.”73 The Civil Law (Wrongs)
Act 2002 sets out further considerations when determining if the absence or nature
of precautions supports a finding of negligence.74 The Tribunal finds that the
slippage was foreseeable, and that Mr Chen did not take reasonable precautions.
44. The non-compliant excavation was substantial in its height and width, and undertaken
on unstable land – “siltstone or silty sandstone” of “low and medium strength”.75
It was undertaken without “adequate” risk assessment76 as the WorkSafe ACT
Commissioner pointed out. A reasonable person of Mr Chen’s skills and
knowledge, and being advised by expert contactors, would have taken precautions.
Mr Murray agreed that “there was no way of knowing” the slippage would occur,77
and the Tribunal concludes from this that therefore preventive action was necessary.
Presumably this is why Rule 20 exists, to prevent such slippages. Mr Murray stated
that he was only involved after the slippage, and a slippage can be avoided by
various means such as “reinforced shotcrete or bolting”, by installing “some sort of
retaining structure”, and cutting further away from the boundary would “give
yourself a bit of margin for … something potentially [happening]”.78 Mr Renfrey
stated that when the cut was proposed “geophysical advice” would be normally
obtained, and various forms of preventative action taken: in the absence of these, he
73 Civil Law (Wrongs) Act 2002 sections 43 (1)(a), (b) and (c)74 Civil Law (Wrongs) Act 2002 sections 43 (2) and 4475 Douglas Partners ‘Geotechnical Inspection Report’ 6 April 2018 page 476 Transcript of proceedings 8 November 2018 page 12677 Transcript of proceedings 8 November 2018 page 10778 Transcript of proceedings 8 November 2018 page 87
18
stated that “a steep high cut in fractured rock, which is prone to collapse, you just
don’t do that sort of thing.”79
45. The excavator operator appeared to the Tribunal to have limited skills for such a
complex excavation. He said he had done cuts similar to the one done at Mr Chen’s
property before;80 yet Mr Renfrey stated that such a cut would normally be done
differently.81 The operator stated that he didn’t read geotechnical reports and didn’t
read those available for Mr Chen’s work but relied on instructions from Mr
Kozjak.82 Mr Kozjak said that he was familiar with the Excavation Work Code of
Practice which includes assessing and controlling for risks. Demonstrating his
limited skills for an excavation of this nature, he said that he did a “visual risk
assessment”83, a “quite minimal” 84 assessment, before starting the excavation, which
he incorrectly thought was adequate given the building had planning approval and
he had the engineer’s drawings.85 At best, Mr Kozjak made workers aware of the
cut, the operator was in an enclosed cabin and he monitored the excavation as it was
done.86 In the Tribunal’s view, Mr Chen demonstrated poor judgement and a lack of
common sense about the excavation, in that he blindly relied on others when he was
the owner/builder. He said that he did not think he had to be familiar with the Code
covering excavation,87 and that he could not tell if there would be a slippage.88
He thought that the planning approval gave him licence to proceed and he relied on
“the system … the architect, the certifier and the government authority.”89 He also
obtained guidance from “[t]alking to my building friends.”90
46. For the reasons above the Tribunal finds that Mr Chen was negligent. If the Tribunal
is wrong about there being negligence by Mr Chen, damages are payable by Mr
Chen because he caused a nuisance as set out below.
79 Transcript of proceedings 8 November 2018 page 11180 Transcript of proceedings 9 November 2018 page 25781 Transcript of proceedings 8 November 2018 pages 111-11282 Transcript of proceedings 9 November 2018 pages 257-25883 Transcript of proceedings 9 November 2018 page 30084 Transcript of proceedings 9 November 2018,page 30185 Transcript of proceedings 9 November 2018 page 30286 Transcript of proceedings 9 November 2018 page 29287 Transcript of proceedings 9 November 2018 page 330, [11]-[12]88 Transcript of proceedings, 9 November 2018, page 33989 Transcript of proceedings 9 November 2018 page 33090 Transcript of proceedings 9 November 2018 page 347, [22]-[23]
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Nuisance
47. The Tribunal finds that Mr Chen caused a nuisance to the Ghildyals’ land in that
Mr Chen caused subsidence of the Ghildyals’ land. The usual principles of law on
causation apply in a nuisance action and, as set out above, Mr Chen caused the
subsidence (see paragraphs 40 to 43). Even in the absence of a trespass, in doing the
non-compliant excavation on the boundary Mr Chen removed the support for the
Ghildyals’ land which caused it to subside: this is a common law nuisance of long-
standing. This common law nuisance includes a removal of support for the
Ghildyals’ land by the forces of nature which Mr Chen ought to have foreseen and
guarded against.91 In the case of Fennell and Anor v Robson Excavations Pty Ltd
and Ors [1977] 2 NSWLR 486 nuisance was found on the latter basis even though
excavation work was carried out “in accordance with proper practice”,92 it was not
the sole cause of the subsidence, and there was no trespass: “the withdrawal of
lateral support from land is an actionable nuisance for which strict liability attaches
without proof of negligence.”93
48. The encroachment on to the Ghildyals’ land is not trivial. At 4 April 2018 it was
1.42 metres vertically, and a depth of 3.95 metres, and there was an encroachment
along almost the entire excavation line –– a substantial encroachment.94 Even on
Mr Chen’s evidence it is 1 metre at its maximum distance –– Jeremy Murray in his
oral evidence agreed with Mr Chen’s legal representative that the face of the cut
was cleaned and trimmed as part of the remediation and this increased the
encroachment on to the Ghildyals’ land.95 The Tribunal finds that the batter cleaning
and monitoring was not done as recommended (see paragraph 35, above); however
even if one accepts that it was done as recommended, the encroachment remains
substantial.
49. If the Tribunal is wrong about there being a nuisance caused by Mr Chen, damages
are payable due to Mr Chen’s negligence as set out in paragraphs 36 to 46, above.91 Holbeck Hall Hotel Ltd & Anor v Scarborough Borough Council [2000] QB 83692 Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSW LR 486 [489]93 Fennell and Anor v Robson Excavations Pty Ltd and Ors [1977] 2 NSWLR 486 [493] citing Dalton v Angus (1881) 6 App. Cas. 740 [791]94 Amended Civil Dispute Application 10 August 2018 Attachment 16 (Lonergan Surveying Partial Identification Survey 9 April 2018)95 Transcript of proceedings 8 November 2018 page 97
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Damages
50. As set out above, in paragraphs 21 to 24, the Ghildyals claimed damages for
interference with their enjoyment of the deck and their land from 27 March 2018 to
date, economic loss being costs of reports totalling $7,331.50, the costs of
alternative accommodation totalling $626.50 and parking costs of $88.71, “stress,
grief and suffering”,96 the cost of their time in dealing with the matters (unitemised),
plus interest and any tribunal fees. They claimed the cost of the disputed fence that
they had fully paid for. They also claimed that they lost $10,000 for landscaping
that was delayed due to the subsidence and then the landscaper went in to
liquidation without the Ghildyals receiving a refund.97
51. In regard to interference with their enjoyment of their land, the disputed fence was
observed to be missing in parts by the Ghildyals on 27 March 2018,98 and the
temporary fence was restricting their “access to the backfilled area [of their
property]”, according to the Ghildyals.99 The geotechnical engineer on
28 March 2018 recommended a 3 metre exclusion zone for workers, which he said
in his oral evidence was short-lived.100 But the temporary fencing establishing the
3 metre exclusion zone remained in place because WorkSafe ACT did not
conclusively advise the Ghildyals that this was no longer required until the
hearing.101 There was evidence that the Ghildyals had workers at times within the
exclusion zone and on the deck,102 however the Tribunal does not regard such
minimal and necessary access as overcoming the interference with their enjoyment
of the land suffered by them. The report of ACT Geotechnical Engineers Pty Ltd
dated 28 March 2018 stated that the deck was potentially undermined, and
Mr Jeremy Murray explained in his evidence that this was because the slippage was
within the zone of influence of one of the footings for the deck:103 subsequently
Mr Murray stated in his oral evidence that the deck, at the hearing date, was not
96 Amended Civil Dispute Application 10 August 201897 Transcript of proceedings 9 November 2018 page 23698 Amended Civil Dispute Application 10 August 2018 page 2, [21] and Attachment 1299 Amended Civil Dispute Application 10 August 2018 page 3, [46] and Attachment 28100 Transcript of proceedings 8 November 2018 page 89101 Transcript of proceedings 9 November 2018 pages 142 and 217-220102 Transcript of proceedings 9 November 2018 pages 237-240 and 289103 Transcript of proceedings 8 November 2018 page 98
21
undermined. 104 Mr Renfrey agreed that “[o]n the work I’ve done to date … there’s
no structural damage” 105 to the deck or the house. Mr Kozjak stated that the
remediated wall was better than the original planned wall because it is “tied back
through into the building, it’s really strong.”106 Mr Chen confirmed that some
aspects of the remediation were above the standard of what was required.107 So, on
the evidence the Tribunal finds that the deck is now safe, and the props to the deck
can be removed. But it remains the case that the Ghildyals have made limited use of
their deck since 27 March 2018. The loss of the use of their land near the common
boundary that was to be landscaped but was instead an excavation and works site,
and the loss of the normal use of their deck, for nearly 10 months is not a trivial loss
of enjoyment of their land.
52. Another aspect of the interference with their enjoyment of their land is that it is, at
some level, ongoing. This results from it not being clear that the remediation work
has been done as required. Mr Kozjak said that he had followed up with all the
recommendations in the report of ACT Geotechnical Engineers Pty Ltd dated
28 March 2018, including trimming the face of the excavation on 31 March 2018.108
He stated that cleaning the face meant that he “monitored it, and if I saw … any
rocks that may have been loose … I would de-stabilise it and it would fall. But it …
didn’t change that much, except for that one slippage.”109 He completed the wall on
8 April 2018 and the backfill on 16 April 2018. He said that he called the
geotechnical engineers about an extra slippage on 13 April 2018,110 and that he
ensured that the backfill left no voids around the material that fell due to the extra
slippage.111 He agreed that the geotechnical engineer did not witness him do this
backfill, but thought it was not necessary for them to supervise this.112
53. However, Mr Renfrey disputed that all the recommendations in the report by
ACT Geotechnical Engineers Pty Ltd dated 28 March 2018 had been followed up.
104 Transcript of proceedings 8 November 2018 page 101105 Transcript of proceedings 8 November 2018 page 90106 Transcript of proceedings 9 November 2018 page 317107 Transcript of proceedings 9 November 2018 page 342108 Amended Civil Dispute Application 10 August 2018 Attachment 27 (Affidavit of Richard Kozjak 11 July 2018) pages 6-8109 Transcript of proceedings 9 November 2018 page 290110 Transcript of proceedings 9 November 2018 page 287111 Transcript of proceedings 9 November 2018 pages 288-289112 Transcript of proceedings 9 November 2018 page 296
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When considering whether all the recommendations were followed, the Tribunal
notes that they included “[r]egular inspections by a geotechnical engineer of the
batters … must be conducted on a weekly basis”,113 but Mr Chen’s geotechnical
engineers only attended, according to their own evidence, on 28 March 2018 and on
13 and 24 April 2018.114 Mr Renfrey observed no spoon drain or bund as
recommended,115 the recommendation being “[a] spoon drain or bund should be
constructed along the top edges of the batter.”116 Mr Renfrey also disputed that the
face was trimmed as recommended, the recommendation being “trimmed back at
1(H):1(V)” and “cleaned of loose material on a daily basis.”117 He stated that he
attended on 4, 9, 13 and 17 April 2018 and did not find what he expected, which
would be “the existing face … not vertical anymore, had been cleaned enough that
there was actually a slope on the face [and] the block in the face … tight, not … bits
that were loose and half detached.”118
54. Mr Renfrey stated that based on his observations “it was clear that the batters …
hadn’t been properly cleared of material … a lot of rock … was never cleaned out
from the back of the wall”,119 and he was particularly concerned about material from
the extra slippage that he observed on 13 April 2018 as shown in photos he and the
Ghildyals had taken.120 He described this material as “two tonnes of material, of
boulder size, sitting in the gap between the wall and the rock face.”121 This material
was described as “nothing major” by Mr Kozjak when he emailed ACT
Geotechnical Engineers Pty Ltd about inspecting it.122 Mr Renfrey stated that this
rock was not cleared out, which meant this material was buried in the backfill and in
his view this raised a question about whether there were voids in the backfill. He
113 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2114 Affidavit of Jeremy Murray 1 November 2018 115 Transcript of proceedings 8 November 2018 page 146116 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2117 ACT Geotechnical Engineers Pty Ltd ‘Geotechnical Assessment of Excavation Batter Stability – 28 March 2018’ 28 March 2018 page 2118 Transcript of proceedings 8 November 2018 pages 146 and 148119 Transcript of proceedings 8 November 2018 pages 147 and 148]120 Transcript of proceedings 8 November 2018 page 145, referring to Exhibit G1 121 Transcript of proceedings 8 November 2018 page 145122 Exhibit C13 ( Email from Mr Kozjak to Jeremy Murray 12 April 2018 8:44am)
23
explained that some of the areas to backfill were very narrow, so difficult to
backfill; different backfill was used in different parts; it was “a tricky job”.123 He
said “I wouldn’t comment on the backfill placement, if I never witnessed it” and
that, in reference to ACT Geotechnical Engineers Pty Ltd, “they’ve been given a
drawing or they’ve been advised that that was done but haven’t been there to
witness and confirm that.”124 On this basis he raised a query about the effectiveness
of the remediation and did a dilapidation report.125 The Tribunal accepts the
evidence of Mr Renfrey on this point, and finds that there is a reasonable doubt that
the remediation work has been done as required. The Tribunal also notes that the
Ghildyals may have no warranties available to them for the remediation work.
55. Mr Murray said that the slippage happened on a “portion” of the excavation line,126
but the Tribunal finds that its effects are more widespread than that one portion,
given the encroachment onto the Ghildyals’ property is along almost the entire face
of the excavation area (see paragraphs 35 and 48). If Mr Chen submits he didn’t
excavate into the Ghildyals’ property, which the Tribunal accepts, then the
encroachments along the rest of the excavation line must be due to the effects of the
slippage. Yet Mr Murray stated that the focus of remediation was only on one
portion, with different backfill being used in other parts of the remediation,127 which
raises further concerns about the effectiveness of the remediation.
56. The Tribunal awards $2,000 compensation to each of the Ghildyals for interference
with the enjoyment of their land.
57. The Tribunal accepts the Ghildyals claim for the costs of reports totalling $7,331.50,
the costs of alternative accommodation totalling $626.50 and parking costs of
$88.71. Mr Chen raised that the reports were costs associated with the proceedings.
However, the Tribunal finds that they are costs associated with the Ghildyals
engaging with Mr Chen about remediation works, having lost trust in Mr Chen and
his experts and contractors. Mr Murray disagreed with Mr Renfrey that a
dilapidation survey was required because he disputed that anything further would
123 Transcript of proceedings 8 November 2018 page 145124 Transcript of proceedings 8 November 2018 page 149125 Exhibit G2 (Douglas Partners Dilapidation Report, Douglas Partners 3 May 2018)126 Transcript of proceedings 8 November 2018 page 92127 Transcript of proceedings 8 November 2018 pages 93-94
24
happen due to the slippage and remediation; however he acknowledged that the
report would assist if “you’re worried that there’s going to be subsidence from the
backfill.”128 The Tribunal finds that the Dilapidation Report was required (refer to
paragraph 54, above).
58. The cost of the Ghildyals’ time in dealing with the remediation and related issues is
unspecified, with no details of the basis for this claim provided,129 and is not
supported by the Tribunal. Likewise, the claim that they lost $10,000 for
landscaping is not evidenced, so is not supported by the Tribunal.
59. It is clear from the evidence that the Ghildyals suffered inconvenience and distress
from 27 March 2018 due to what has occurred, and the Supreme Court also made a
similar finding. Mr Kriziak said that he observed Mr Ghildyal “trying to stop the
trucks”130 and “yelling out ‘Stop’”,131 and Mr Kozjak gave evidence that
Mr Ghildyal “blared out music”,132 all of which the Tribunal regards as signs of
inconvenience and distress. The Ghildyals said that they had tried to discuss their
concerns with many of the workers on the site, but this was not effective, which
added to their inconvenience and distress. The WorkSafe ACT officer advised Mr
Kozjak that Mrs Ghildyal was taking Mr Ghildyal for medical assistance on
29 March 2018.133 The Ghildyals organised alternative accommodation on two
occasions to assist manage their distress. The Tribunal notes that the Ghildyals lost
trust in Mr Chen and his contractors and felt they were in a hostile situation, which
added to their inconvenience and distress. The Tribunal can understand this, given
Mr Chen’s refusal to show them his plans (he said for personal reasons): in the
Tribunal’s view it is remarkable, given the scale of Mr Chen’s development, that the
Ghildyals were reduced to making a freedom of information application to obtain
the plans. Also of concern to the Ghildyals was that Mr Chen began the excavation
and undermined the disputed fence, leaving it vulnerable to collapse, while his fence
dispute application was before the Tribunal. Another understandable concern of the
128 Transcript of proceedings 8 November 2018 page 106129 Transcript of proceedings 9 November 2018 page 251130 Transcript of proceedings 9 November 2018 page 261131 Transcript of proceedings 9 November 2018 pages 265132 Transcript of proceedings 9 November 2018 page 296133 Amended Civil Dispute Application 10 August 2018 Attachment 27 (Affidavit of Richard Kozjak 11 July 2018) [17]
25
Ghildyals is that the experts Mr Chen was relying on to meet the Ghildyals’
concerns were being paid for by Mr Chen and were not independent.
60. In some circumstances, damages can include an award for ‘inconvenience’ and
‘distress’. The law on whether there can be damages payable for inconvenience and
distress as a result of a breach of contract or a wrong, without the limits of
section 35 of the Civil Law (Wrongs Act) 2002 applying, is complex. It is well set
out by Anforth, Christensen and Adkins.134 In summary, it is payable and not subject
to the limits of section 35 of the Civil Law (Wrongs Act) 2002 for certain breaches
of residential tenancy agreements, and where there is an intentional wrong or
exemplary or aggravated damages are made out,135 and it may be payable under the
tort of nuisance.136 However, this issue is not necessary to decide in this case
because the Ghildyal’s inconvenience and related circumstances have been
considered in the award of damages for loss of amenity.
61. The Tribunal dismisses the Ghildyals’ claim for aggravated damages. While Mr Chen
has been negligent and demonstrated a lack of common sense, he has not behaved
so poorly as to warrant such damages. The Tribunal dismisses the Ghildyals’ claim
for exemplary damages because the harm caused to them by Mr Chen was not
intentional.
62. The Tribunal dismisses the Ghildyals’ claim for the cost of the disputed fence, since
Mr Chen is paying fully for the replacement fence.
63. The Tribunal awards interest, being $602.67, on the total sum of the damages, being
$12,046.71, with interest calculated from 27 March 2018 to the date of these
Orders. The Tribunal also orders that Mr Chen reimburse the Ghildyals the
subpoena fees of $129, and pay to the Tribunal the fee for the second day of the
hearing, being $153, given these fees were necessary for the Ghildyals’ application
to proceed.137
134 Allan Anforth, Peter Christensen & Christopher Adkins, Residential Tenancies Law and Practice New South Wales (The Federation Press, 7th edn, 2017) [2.187.5]135 NSW v Ibbett [2005] NSWCA 445136 Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWC 230 [102] per Slattery J137 ACT Civil and Administrative Tribunal Act 2008 section 48(2)(ii)
26
………………………………..Senior Member L Beacroft
27
Attachment A
BRIAN MILBURN AND ASSOCIATES DATE 9-04-18CONSULTANT SURVEYING OUR REF 2123
55 BIMBERI CRES PALMERSTONACT 2913 (PH. FAX: 62412543, 0407 432 593)
Attention: Y J Chen
I have surveyed the land being BLOCK 7 SECTION 34 DIVISION of LAWSON, DISTRICT of BELCONNEN in the Australian Capital Territory, having an area of 570 square metres and appearing in Deposited Plan 11268.
Erected thereon fronting BELLBIRD LOOP is a concrete block wall, the position of which in relation to the boundaries is as shown on the diagram.
There are no apparent proposed easements affecting the subject land shown on DP11268.
This survey is for IDENTIFICATION purposes only.
NOTE ALL BLOCKWORK CLEAR OF BOUNDARY
TB DENOTES DISTANCE TO BOUNDARY FROM TOP OF WALL BB DENOTES DISTANCE TO BOUNDARY FROM BASE BLOCK BW DENOTES BLOCK WALL
28
HEARING DETAILS
FILE NUMBER: XD 325/2018
PARTIES, APPLICANT: Yijuan Chen
PARTIES, RESPONDENT: Amit Ghildyal and Reena Ghildyal
COUNSEL APPEARING, APPLICANT N/A
COUNSEL APPEARING, RESPONDENT N/A
SOLICITORS FOR APPLICANT Aulich Civil Law
SOLICITORS FOR RESPONDENT N/A
TRIBUNAL MEMBERS: Senior Member L Beacroft
DATES OF HEARING: 8 and 9 November 2018
29