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

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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

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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

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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)

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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)

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………………………………..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