ACT CIVIL & ADMINISTRATIVE...

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BURBANK AUSTRALIA PTY LTD ACN 007 099 872 v LAU (Appeal) [2019] ACAT 42

AA 38/2018 (XD 79/2018)

Catchwords: APPEAL – civil dispute – appeal against decision of original tribunal to award damages for trespass to land – trespass established – failure of party to provide evidence corroborating quantum when requested by Tribunal – appeal allowed in part

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 26, 79, 82

SubordinateLegislation cited: ACT Civil and Administrative Tribunal Rules 2009 (No 2) r 21

Court Procedures Rules 2006 r 21

Cases cited: Fox v Percy [2003] HCA 22House v R [1936] HCA 40Legal Practitioner v Council of the Law Society of the ACT (No. 2) [2014] ACTSC 352Mansour v Dangar [2017] ACAT 49Puri v Iconic Markets and Events Pty Ltd [2019] ACAT 28Sarbandi v Sharif [2017] ACAT 57

List of Texts/Papers cited: J D Heydon, Cross on Evidence (LexisNexis Butterworths,

11th ed, 2017)

Tribunal: Presidential Member E Symons

Date of Orders: 15 April 2019Date of Reasons for Decision: 15 April 2019

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 38/2018

BETWEEN:

BURBANK AUSTRALIA PTY LTD ACN 007 099 872Appellant

AND:

JASON LAURespondent

APPEAL TRIBUNAL: Presidential Member E Symons

DATE: 15 April 2019

ORDER

The Tribunal orders that the decision under review is set aside and substituted with

the following order:

1. The appellant, Burbank Australia Pty Ltd, is to pay the respondent, Jason Lau,

$6,664.39 by close of business 9 May 2019.

………………………………..Presidential Member E Symons

REASONS FOR DECISION

Summary

1. In these reasons for decision:

(a) ‘Original Tribunal’ means the Tribunal appealed from and

‘Appeal Tribunal’ means this Tribunal; and

(b) the Appeal Tribunal has referred to Burbank Australia Pty Ltd as the

appellant and Jason Lau as the respondent, notwithstanding that in the

proceedings before the Original Tribunal (XD 79/2018) Jason Lau was the

applicant and Burbank Australia Pty Ltd was the respondent.

2. This is an appeal by Burbank Australia Pty Ltd (the appellant or Burbank) from

the decision of the Original Tribunal on 13 August 2018 that it pay to Jason Lau

(the respondent or Mr Lau) $17,117.24 for damages for trespass ($16,430)

plus interest ($537.24) and the filing fee ($150).

3. The Appeal Tribunal has allowed the appeal in part as it has found that the

Original Tribunal’s conclusion on the quantum of the damages was contrary to

the uncontested evidence and contrary to compelling inferences. The

Appeal Tribunal has set aside the decision under review and substituted an order

that Burbank pay Mr Lau $6,664.39.

Background

4. Sekisui House Services (NSW) Pty Ltd (Sekisui) entered into a contract dated

8 January 2016 to build a house on Block 18 Section 44, Coombs for

Mr Takeshi Sakamoto and Ms Helena Sakamoto (the Sakamoto property).

From 1 July 2016 Burbank, under contract with Sekisui, completed building the

house.

5. Mr Lau owned the adjoining block — Block 17 Section 44, Coombs — at all

relevant times and had a contract with S&G Pavilion Homes to build a house on

his block.

6. Mr Lau alleged that in December 2016 Burbank had overcut by up to two metres

beyond the boundary between the two properties and trespassed on to his block

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which caused a delay in the construction of his house and additional engineering

works and related costs.1

The proceedings

7. Mr Lau filed a civil damages application against Burbank on 18 January 2018

claiming $16,430 for the costs associated with the damages he suffered as a

result of the alleged overcut, $3,300 estimated scaffolding costs plus his filing

fee and interest in accordance with the Court Procedures Rules 2006.

8. Burbank filed a response on 22 February 2018 which stated “This complaint has

previously been dealt with by the Housing Industry Association (HIA) … and

dismissed” and attached a copy of its letter to the HIA dated 26 July 2017 in

response to the complaint.

9. Burbank denied liability and summarised its position as follows:2

(a) Mr Lau is chasing compensation from Burbank which Burbank says it had

no control over.

(b) Mr Lau has been charged by his builder for “extra” work.

(c) The “extra” work charged by Mr Lau’s builder was work that should have

been costed/included in the initial building contract between Mr Lau and

S&G Pavilion Homes as it appeared that they were going to build

Mr Lau’s home without piers or drop edge beam notwithstanding the

builder brought approximately 500mm of uncontrolled fill onto the site

and notwithstanding the close proximity to the cut away at the boundary.

(d) Burbank had no contractual relationship with Mr Lau, or with his

neighbour, and had not caused any action that may have led to Mr Lau’s

perceived right to compensation.

The original hearing

10. Mr Lau represented himself at the hearing on 25 July 2018. Mr Peter Thompson,

building manager for Burbank, represented it under an authority to act.

1 Civil Dispute Application dated 9 January 2018 and filed 18 January 2018

2 Response and Summary for Proposed Hearing dated 29 June 2018

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11. The Original Tribunal heard evidence from Mr Lau, his licensed builder

Mr Boris Planinac, of S&G Pavilion Homes, and Ms Helena Sakamoto, from

the neighbouring block, Block 18 Section 44, Coombs. Burbank’s site

supervisor at the relevant time, Mr Daniel Watt, a licensed builder, gave

evidence over the telephone at the hearing. At the end of the hearing the

Original Tribunal invited the parties to file any further submissions and

specifically asked Mr Lau to file and serve the “first engineering plan and the

second engineering revised plan … the quote from Paramount Concrete for the

extra concreting work…and the tax invoice from Pavilion Homes in the sum of

$4415.40 … itemised”3 to support his claim for damages due to the over-

excavation. The Original Tribunal reserved the decision.

12. Mr Lau provided engineering plans dated 15 February 2017 and 3 May 2017, the

Additional Works Claim dated 10 May 2017, and copies of emails. Burbank’s

response to this material was also provided to the Original Tribunal.

The Original Tribunal’s decision

13. In the decision dated 13 August 2018, which is set out in paragraph 2 above,

the Original Tribunal noted that neither party had sought to add any other

respondent or third party or parties; that Mr Lau had filed the engineering plans

and that no further evidence was filed in relation to the claimed scaffolding

costs. The Original Tribunal found:

(a) This was a claim in trespass.

(b) Burbank’s privative contract argument did not apply.

(c) Burbank owed Mr Lau a duty of care as it had taken over the building of

the Sakamoto’s house on Block 18 Section 44, Coombs; it was the

employer of the site manager, Mr Watt, and it was responsible for the

subcontractors engaged to fulfil these responsibilities. It had a high degree

of control and the only responsibility for building the house on Block 18

Section 44, Coombs at the relevant times which was in very close physical

proximity to Mr Lau’s land being immediately adjacent to it.

3 Transcript of proceedings (original hearing) 25 July 2018 page 125, lines 27-30

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(d) Nothing in the plans or associated laws for the plans or works required

Burbank to cause the alleged harm to Mr Lau’s property.

(e) Mr Lau had no conflicting duties to cause harm to his land (for example,

an emergency, or safety).

(f) Burbank breached its duty of care to Mr Lau by trespassing on to his land.

This was a direct interference with Mr Lau’s land.

(g) Trespass is actionable per se.

(h) Burbank caused a direct interference with Mr Lau’s land.

(i) Burbank’s own documents to the HIA disclosed that the excavation to the

boundary was ‘trimmed’. Mr Watt gave evidence that this meant cleaned

up loose soil.4 When Mr Watt attended the site visits with Mr Lau’s

builder, after the alleged over-excavation, the boundary was measured

mid-air because the survey pegs were actually missing, which suggested

more than a mere trim on his own evidence.

(j) Mrs Sakamoto said that the nature of the first excavation changed

dramatically in late December 2016, just before handover by Burbank,

with the face of the boundary excavation being altered such that she could

walk up it.5 She described this change as a clean cut with bobcat marks

showing. She had provided two photos to Mr Lau which supported her

evidence.

(k) Mrs Sakamoto had asked Mr Watt why this extra cut had been done and he

told her it was for bobcat access to tidy up in the backyard of her site.6

She said that the bobcat work was of such a nature that it caused damage

to her garage brick wall which Burbank later fixed.

(l) Mrs Sakamoto’s evidence suggested that the changes to the boundary

excavation were more than a mere trim.

4 Transcript of proceedings (delivery of decision) 13 August 2018 at page 6, lines 12-15



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(m) The cross-sections in Mr Lau’s photos of the excavated boundary from

December 2016 show Burbank did over-excavate, and significantly, and

required that the temporary fence erected by Mr Lau’s builder had to be

removed. This demonstrated knowing over-excavation.

(n) The boundary of Mr Lau’s property was as submitted by Mr Lau’s builder,

not as argued by Burbank.

(o) Even if, as Burbank argued, they had over-excavated at the request of

Mr and Mrs Sakamoto, which Mrs Sakamoto denied, Burbank had the

expertise to make its own decision about the wisdom or otherwise of such

a request and was under no duty or obligation to comply with such a

request. Mr Watt said he was a licensed builder and Burbank is a company

with building supervision expertise.

(p) The engineering plans filed by Mr Lau after the hearing confirmed that an

amendment was made on 3 May 2017, after the situation with the changed

boundary excavation occurred and came to light.

(q) The related changes to the building of Mr Lau’s home associated with this

change in the engineering plan were due to the significantly changed

nature of the boundary as compared to the initial plan and the instability

of the soil that also resulted. It was not just that soil was removed; in

being so disturbed it was less stable.

(r) While Burbank argued that the original engineering plan was inadequate

and would need to be amended to include a drop edge beam and piers to

support the concrete slab, Mr Lau’s builder, Mr Planinac, denied this and

his evidence was the most expert on this issue. The Original Tribunal

accepted Mr Planinac’s evidence.

(s) The fence erected by Mr Lau’s builder was actively moved. Burbank

breached its duty of care to Mr Lau in trespassing significantly onto

Mr Lau’s land.

(t) The May 2017 amendment to the engineering plan and the related changes

to building Mr Lau’s house set out in the S&G invoice dated 22 May 2017

($16,430) are the natural and probable consequences of Burbank’s

trespass.

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(u) The claim for the scaffolding fails due to a lack of evidence about the

quantum of this claim and is dismissed.

The appeal

14. Burbank lodged an application for appeal on 11 September 2018 which set out the

following as errors of law or fact:

The Senior Member did not seem to understand the FACT that Pavilion Homes placed uncontrolled fill on the site in order to raise the level of Mr Lau’s slab. In raising the ground level of the block, Pavilion Homes was obliged to design a drop edge beam and piers to support the slab. This was known to Pavilion Homes before they started construction, and in fact Mr Boris Planinac admitted that his engineer had been to the site during the design phase and had already incorporated the drop edge beam and piers into the design. This should be on the recording of the Hearing. Despite admitting to this, Mr Planinac convinced the Senior Member that his engineer had to redesign the slab. Mr Planinac was asked to submit both the original design and the re-design. Mr Planinac did not submit the original design which is dated 07/02/17. Mr Planinac submitted only the subsequent designs which were dated 15/02/17 and 3/05/17. The design dated 15/02/17 appears to have been tampered with.

15. Under reasons why the appeal should succeed Burbank said that:

(a) It had not joined other parties (Sekisui House, Mr and Mrs Sakamoto and

S&G Pavilion Homes) to the proceedings before the Original Tribunal

because it had not been advised that it had the right to join other parties.

(b) Burbank was not the builder or principal contractor responsible for the

construction of the dwelling on Block 18 Section 44, Coombs. The builder

and/or principal contractor was Sekisui House Services (NSW) Pty Ltd.

(c) Burbank was, at all relevant times, a contractor employed by Sekisui to

perform works on the property.

(d) Neither Burbank nor Sekisui have caused harm to the owners of the

property at Block 17 Section 44, Coombs.

(e) If it can be established that the builder of the property at Block 18

Section 44, Coombs has caused harm to the neighbouring property it

would be Sekisui that will need to defend this claim and not Burbank as it

has no standing in this matter.

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16. At the directions hearing held on 26 November 2018 Burbank was ordered to file

a one page document setting out the orders sought on appeal.

17. On 29 November 2018 Burbank advised the tribunal that it sought the following

order:

That Burbank Australia Pty Ltd is not liable to pay Mr Lau any money by way of compensation and the application XD 79/2018 is dismissed.7

18. Prior to the appeal hearing Burbank issued a subpoena to

Indesco Engineers (Indesco) and obtained the original engineering plans for

Mr Lau’s property, dated 7 February 2017, which neither Mr Lau nor his

builder, Mr Planinac, had provided to the Original Tribunal, and the two

amended engineering plans dated 17 February 2017 and 3 May 2017. Indesco

also provided copies of emails between Burbank, Mr Lau and themselves at the

relevant times.

Appeal hearing

19. Mr Peter Thompson appeared for Burbank at the hearing on 17 December 2018.

Mr Jason Lau, appeared on his own behalf. The Appeal Tribunal granted leave

pursuant to rule 21(c) of the ACT Civil and Administrative Tribunal Rules 2009

(No. 2) for Burbank to provide further evidence in the form of photographs of

the subject property dated 12 July 2017 which was the date Mr Thompson said

he, Mr Watt and Mr Martin Apap, the appellant’s General Manager for New

South Wales (NSW) and the Australian Capital Territory (ACT), visited the site

to view the cut the subject of these proceedings. The Appeal Tribunal also

granted leave to Mr Lau to call oral evidence from his builder, Mr Planinac, at

the appeal hearing on 17 December 2018.

20. At the conclusion of the hearing the Appeal Tribunal made orders requiring

Mr Lau to file and serve, by 11 January 2019, any written submissions in

relation to the photographs tendered at the hearing by Burbank and for Burbank

to file and serve any written submissions in reply by 31 January 2019.

The Appeal Tribunal reserved the decision.

7 Email from applicant to tribunal dated 29 November 2018

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21. Mr Lau notified the tribunal on 9 January 2019 that he did not intend to adduce

further evidence to the Appeal Tribunal. Burbank notified the tribunal on

29 January 2019 that it did not intend to file written submissions in relation to

Mr Lau’s 9 January 2019 submission.

22. On 28 February 2019 the Appeal Tribunal sought further material and information

from each of the parties and has taken the information provided by the parties,

in response, into consideration.

23. This is the Appeal Tribunal’s decision.

Principles applying to appeals

24. In order to decide the appeal, it is important to keep in mind the nature of the

appeal and the role of the Appeal Tribunal.

25. The appeal was conducted as a review of the Original Tribunal’s decision

pursuant to section 82 of the ACT Civil and Administrative Tribunal Act 2008

(ACAT Act). When conducting a review the Appeal Tribunal must proceed by

reference to the evidence before the Original Tribunal. In Mansour v Dangar

the tribunal said:8

17. The provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) dealing with appeals within the tribunal are few, and briefly worded. The ACAT Rules add procedural guidance around the conduct of such appeals. Appeals are creatures of statute and it is accepted that the legal principles developed in relation to appeals generally apply to appeals within the tribunal.

18. Under section 79(3) of the ACAT Act an appeal from a decision of the tribunal may be brought on a question of fact or law. This means that the appeal exists for the correction of error. Because of the statutory limitation to appeals on ‘a question of fact or law’ an inquiry into the existence of error is the initial focus of the appeal.

19. If an error is shown to have been made it is then necessary for that error to be material to the outcome in order for the appeal to be successful.

…

22. … for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal

8 [2017] ACAT 49 at [22]

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tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. [footnotes omitted]

26. The principles to be exercised by an appellate court on appeal from the exercise of

a discretion by the original court, or court of first instance, were expressed by

the High Court in House v R:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.9

27. The grounds of appeal challenge factual findings that turned on the

Original Tribunal’s assessment of the witnesses and the documentary exhibits.

In Legal Practitioner v Council of the Law Society of the ACT (No. 2)10

(Legal Practitioner) the ACT Supreme Court Chief Justice said, in relation to

such a ground of appeal:

… to successfully challenge the tribunal’s decision the appellant must demonstrate that the tribunal’s credit-based conclusions were contrary to “incontrovertible facts or uncontested testimony” or were “glaringly improbable” or “contrary to compelling inferences”, upon due allowance being made for the advantages enjoyed by the trial tribunal: Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at [28]-[29].

9 House v R [1936] HCA 40 per Dixon, Evatt and McTiernan JJ10 [2014] ACTSC 352 at [25]

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Consideration

28. As a preliminary issue the Appeal Tribunal will deal with the various matters

raised in paragraph 15 above in which Burbank challenged it being named as

the party in the original application.

29. The Senior Member dealt with this in her decision where she stated:

The applicant confirmed this was the case during the proceedings and did not seek to add any other respondents. Likewise, the respondent did not seek to join third parties that might share in any liability or indeed have exclusive liability against the applicant’s claims.11

30. There was nothing to prevent Burbank, or Mr Thompson on behalf of Burbank,

seeking legal advice in relation to these proceedings. The Appeal Tribunal noted

that Mr William Wuu was the legal advisor for the Burbank group of

companies. He appeared to have some role in these proceedings in that he

clarified the correct name of Burbank during the appeal hearing and advised the

Appeal Tribunal by email dated 29 January 2019 that Burbank did not intend to

file and serve further written submissions. There would appear to be no reason

why Mr Wuu’s advice in relation to the named parties in the application had not

been sought much earlier in these proceedings. It is not the tribunal’s role to

advise litigants to join other parties or to present their case for them.

31. At the original hearing Mr Thompson described the relationship between Burbank

and Sekisui. He submitted that Burbank was, at all relevant times, a contractor

employed by Sekisui to perform works at the property. However the Senior

Member noted that the application alleged trespass by Burbank’s employee and

that it was not based in contract.

32. Burbank’s case at the original hearing and at the appeal was that neither it nor

Seksisui had caused harm to the owners of Block 17 Section 44, Coombs.

Burbank was unsuccessful before the Original Tribunal and has lodged the

appeal which is before the Appeal Tribunal for determination.

11 Transcript of proceedings (delivery of decision)13 August 2018 at page 3, lines 37-44; page 4, line 1

11

33. The Original Tribunal did not accept Burbank’s submission that Sekisui, and not

Burbank, was liable for any damages payable to Mr Lau. The Senior Member

said:

However, it is clear from [Mr Lau’s] submissions that he is claiming in trespass, an action under torts law, so the [privity] of contract argument did not apply in this case.12

34. The Appeal Tribunal is satisfied that the Senior Member did not err in her

findings. There is no merit in Burbank’s submission that it was not properly a

party to these proceedings.

35. The Appeal Tribunal will now consider the questions of fact or law relied on by

Burbank.

Did the original decision maker err in fact or law?

36. Burbank submitted that the Original Tribunal erred in finding that:13

(a) Burbank had breached its duty of care to Mr Lau by trespassing on to his

land when, in December 2016, Mr Watt, who was a Burbank employee,

arranged for a bobcat to trim the excavation on the boundary between the

Sakamoto’s house (Block 18 Section 44, Coombs) and Mr Lau’s house

(Block 17 Section 44, Coombs);

(b) Burbank over-excavated when carrying out the trim on the boundary

which required the temporary fence erected by Mr Lau or his builder to be

removed;

(c) the boundary of Mr Lau’s property was as submitted by Mr Lau and his

builder and not as submitted by Burbank;

12 Transcript of proceedings (delivery of decision) 13 August 2018 page 4, lines 25-27

13 Application for Appeal 11 September 2019 (Reasons for Appeal)

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(d) the engineering plans show that on 3 May 2017, after the changed

boundary excavation in December 2016 came to light, they were amended

and these changes were due to the significantly changed nature of the

boundary as compared with the initial plan and the instability of the soil

that resulted; and

(e) the natural and probable consequences of Burbank’s trespass was as set

out in the S&G invoice dated 22 May 2017 of $16,430.

37. Burbank also submitted that the Original Tribunal erred by failing to give any or

any proper weight to its claim that the original engineering plan was inadequate

and would need amendment, accepting Mr Planinac’s denial of this claim, and

finding that Mr Planinac’s evidence was the most expert on the issue.

Consideration

38. In considering the first two grounds in paragraphs 36 (a) and (b) above, it is

readily apparent from the decision and the transcript that the Senior Member

had heard and weighed up the evidence from Mr Lau, his expert Mr Planinac,

and from Mrs Sakamoto and Burbank’s witness, Mr Watt. The Senior Member

had considered the photographs of the boundary before and after the December

2016 trim and the emails sent by Mr Planinac to Mr Watt following up on Mr

Watt having a subcontractor ‘trim’ up the boundary excavation.

39. While answering questions during the original hearing Mr Watt maintained that he

engaged the subcontractor to tidy up for the Sakamoto’s house to be habitable,

and that the subcontractor had not excavated further and past the boundary line

and into the neighbouring property.

40. When asked about his visit to the site after Mr Lau’s site supervisor had contacted

him in early 2017 Mr Watt said he had observed the string lines on pickets and

did not think to question whether the string line was an inaccurate boundary

line; he said he did not measure it. He was unable to remember if he had

arranged for soil to be removed from Mr Lau’s block and said it was not

common practice to keep a record like that.

13

41. However, under cross examination, Mr Watt conceded meeting Mr Planinac on

site at least twice in 2017, discussing the need to engage an engineer and

Mr Planinac giving him some quotes. Mr Watt agreed that when he attended site

visits after the alleged interference, the boundary was measured ‘mid-air’

because the survey pegs were actually missing.

42. Mr Watt also conceded that Mr Planinac had sent him a lot of emails, shared the

engineering drawing dated 3 May 2017 and the quote from Paramount

Concreting with him and given him the ‘financials’. Mr Watt agreed that he

“got nervous when [Mr Lau’s builder] started mentioning figures of $16,000”14

and when he presented him with details of the amount of money being claimed,

and said:

That is when it came to the fore. Pretty much it was the discussion that I had with Martin [the General Manager]. I gave him the sequence of events and I presented him with the issues and where it was up to.15

After he had spoken to management, Mr Watt emailed the builder at Pavilion

Homes on 17 May 2017 informing them that he had been advised by

management not to sign any documents regarding the issue onsite in Coombs.

43. The evidence from Mr Planinac and Mrs Sakamoto enabled the Original Tribunal

to be comfortably satisfied that Mr Watt knew that the first cut in May 2016 was

a 90 degree cut on the boundary between the two properties and that he should

have been aware that any further trim of that cut, such as occurred in December

2016, would be going over the boundary line.

44. Mrs Sakamoto told the Original Tribunal that when she got the keys to her

property, around 22 or 23 December 2016, she noticed that the boundary

between her property and the respondent’s property was no longer a straight cut,

but on an angle so she could easily walk up it. She had asked Mr Watt why it

was cut in December 2016 and she said:

the explanation he gave me was that he needed to get the bobcat in there and there was no safe way to get it in. They had to cut the land on angle

14 Transcript of proceedings (original hearing) 25 July 2018 at page 111, lines 36-37


14

to get it in to clean up that section of my block … My builder, Daniel, also told me that when the bobcat was cleaning up my site before it was given to me, the bobcat’s driver knocked that wall, the brick wall [of the garage] out and that would have been the same time that that was cut.16

She said Burbank had fixed up the brick wall.

45. Mrs Sakamoto told the Original Tribunal that the ‘overcut’ was definitely not

caused by erosion adding:

There were bobcat marks on that. … Had it been cut cleanly I think everything would have been fine but it wasn’t. They did it again. It disturbed everything.17

She had also observed that a string line had been put up and had no reason to

think it was not on the boundary of her property.18 Mrs Sakamoto had provided

two photographs to Mr Lau of the cut on the boundary, one taken after the

90 degree boundary cut in May 2016 and before December 2016 and the other

in December 2016, after the overcut, which Mr Lau had tendered in evidence.

46. Mrs Sakamoto also gave evidence that she had had a conversation with

Mr Planinac and Mr Lau, before they had started building on the respondent’s

block, and they had done some drawings because there was a problem with soil

missing on Mr Lau’s block after the ‘trim’ and that had changed what Mr Lau

was trying to do on his block.

47. Mr Planinac told the Original Tribunal that he had installed a safety fence along

the 90 degree cut on the boundary and Burbank had removed it. He said that

Mr Watt was aware of the ‘overcut’ issue from December 2016/January 2017

when Mr Lau’s site manager, Damir Erceg, asked him to move soil from the

‘trim’ or ‘overcut’ which he or his contractor had dumped on Mr Lau’s block.

Mr Planinac said Mr Watt removed this soil. Mr Watt attended two site

meetings with Mr Lau’s site manager in or around March 2017 and then in

April or May 2017 to review the engineer’s plans and to compare them with the

first design. Mr Planinac said:




15

So we met with Daniel and we said to Daniel, “What happened here?” and he said, “Yes, I did arrange the overcut. I shouldn’t have done that for Helena. I was trying to be helpful.” … I said, “Well, you can have a look here. Get a survey if you want. Call your managers if you want. Call whoever you want and tell us how you want to proceed here”. … he said, “I suppose you’re going to want us to pay for this,” and I said, “Yes, I think our client is going to want you to pay for this. Your guy, you’ve asked him to trim it to here. He cut it out to here. You weren’t here supervising what he was doing and he’s done what he’s done so, you know, you’re going to have to be responsible for your contractor that you asked to do that work.” So he goes, “Okay. Well, leave it with me.”19

48. The Appeal Tribunal is satisfied from considering the original decision, the

transcript of the proceedings on 25 July 2018 and the exhibits, that the Original

Tribunal’s finding that Burbank caused a direct interference with Mr Lau’s land

was open to it. Mr Planinac said Mr Watt had admitted to him and to Damir

Erceg that his contractor engaged to trim the boundary cut had overcut the

boundary excavation. The Original Tribunal found that this was trespass onto

Mr Lau’s land. This was one of the main reasons20 why Mr Planinac continued

to contact Mr Watt by email and SMS to follow up on these discussions and to

get a resolution. The Original Tribunal placed credence on the evidence from

Mr Lau and his witnesses. The Senior Member stated she preferred their

evidence.

49. The Appeal Tribunal is satisfied that it was reasonably open to the

Senior Member, having heard all of the evidence, to find that she preferred the

evidence of Mr Lau and his witnesses. The Appeal Tribunal is not satisfied that

she misused the advantage she had of seeing some of the witnesses and hearing

from all of the witnesses, or that she mistook or misapprehended the facts, or

that she acted on evidence that was glaringly improbable or fell into some error

of principle. The Original Tribunal was entitled to make the findings it did in

relation to paragraphs 36 (a) and (b) above.

50. The Appeal Tribunal finds that grounds (a) and (b) in paragraph 36 are without

merit and are not made out.


20 The other reason was to ensure that Mr Watt arranged for the spoil that the respondent’s subcontractor had stock piled on the respondent’s property without his permission to be removed

16

51. In considering the third ground in paragraph 36 (c) above — that the boundary of

the respondent’s property was as submitted by the respondent and not as

submitted by the appellant — the Appeal Tribunal noted that, notwithstanding

that Mr Lau’s builder told the Original Tribunal21 that he had a survey done of

the site before they started the building and they ended up getting the block

surveyed and pinned after the December 2016 ‘trim’,22 neither party provided a

copy of either survey to the Original Tribunal which may have assisted it in

determining this issue.

52. It was not in dispute that the original 90 degree cut by Sekusui in May 2016 was

on the boundary between Mr Lau’s property and the Sakamoto’s property. It

was also not in dispute that Burbank, through Mr Watt, had arranged for the

boundary to be trimmed in December 2016.

53. In determining whether Burbank had overcut the boundary in December 2016 the

Original Tribunal had both parties’ submissions which included the

photographic evidence of before and after the December 2016 cut. The Original

Tribunal also heard evidence from each of the witnesses, in relation to the

location of the boundary.

54. Mr Planinac said, and Mr Lau agreed with him, that when they went to Mr Lau’s

site in April 2017 Mr Planinac got some pegs and put a white string line down

between the two survey pegs showing where the boundary was.23

55. Mr Planinac explained it this way:

We actually then ended up getting it surveyed and pinned up the top and we even measured it ourselves to make sure that the surveyors’ measurements were correct in case his apprentice marked it out wrong. So we started measuring from the top side garage wall offset and then measured back. That would then show us where Jason’s house finished on that left-hand side point there. We then put pins and posts in. We then measured from there to get to the boundary line. We went to both sides to get parallel lines. That’s how we got the string line in.



23 Transcript of proceedings (original hearing) 25 July 2018 at page 35, lines 27-29; page 44, line 8

17

Tribunal: So you’re saying that string line is on the boundary? ---Correct.24

56. Burbank’s witness, Mr Watt, told the Original Tribunal, when asked if he had

walked along and checked the survey line:

I don’t know if we had survey pegs there. I walked along and, yes, there were string lines. I remember that they were on pickets which were installed by unknown.25

When asked if he had any reason to think the line26 was an inaccurate boundary

line Mr Watt said,27 at the time, he did not think to question it.

57. Mrs Sakamoto said she did not have any reason to think that the string line was

not on the boundary of her property.28 While she said she had never stepped it

out and she was not a surveyor, she said she “just looked at the back and knew

where half a metre in from one of those fences which is up from another

property and that was accurate pretty much there so I assumed the rest was.”29

58. Mr Thompson told the Original Tribunal that the first time he saw the block was

after Mr Lau brought it to his attention.30 He visited the block on 12 July 2017,

approximately seven months after Mr Lau and his builder alleged Mr Watt’s

subcontractor had overcut the boundary in December 2016. Mr Thompson did

not give evidence for Burbank. Only Mr Watt gave evidence (on the telephone)

for Burbank.

59. Mr Thompson submitted that the Original Tribunal could be satisfied from the

photographic evidence that the boundary was not where the witnesses had said

in their oral evidence. He relied on a photograph on which he had drawn a line



26 The line on the picket posts27 Transcript of proceedings (original hearing) 25 July 2018 page 102,

lines 33-3528 Transcript of proceedings (original hearing) 25 July 2018 page 120,



lines 40-41

18

which he described as “the notional side boundary.”31 Mr Planinac strongly

disputed this claim.

60. In Sarbandi v Sharif32 the President of the tribunal considered an appeal from a

decision based primarily on the credibility of witnesses and set out the well

settled principles that govern how an appeal tribunal should proceed. The

President stated:

67. … As the authors of Cross on Evidence observe, quoting numerous reasons for judgments:

The appellate court will naturally be loath to disturb a finding of fact by the trial judge who has had the advantage of observing the demeanour of witnesses, “their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial” … The principles applies particularly where “the interests of individuals are divergent and conflicting, where personal feeling is acute, and where … so much depends upon the character, personal motives and interests of individual persons.” “Trial by transcript can seldom be an adequate representation of an oral trial…” Reading the transcript alone is not a substitute for seeing and hearing the witness, “since the transcript eliminates clues to veracity that are supplied by tone of voice, hesitation, body language, and other non-verbal expression.” … It does not follow that because the trial judge did not refer expressly to demeanour and credibility that they played no part in the judge’s conclusions. [footnote omitted]

68. Second, as the authors of Cross on Evidence also state by reference to judgments:

Errors of law or fact by the court below on other matters do not necessarily vitiate its conclusion on credibility. Hence it is unusual to set aside ... the findings of a trial judge based on the credibility of a witness unless it can be concluded that the trial judge failed to use or palpably misused the advantage he or she had of seeing and hearing the witness, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings. However, it is possible to set aside ... credibility-based findings in other circumstances, because “no

31 Transcript of proceedings (original hearing) 25 July 2018 page 50, lines 11-12, 21-24

32 [2017] ACAT 57

19

short exhaustive formula” of the above kinds can meet every case. The court occasionally takes the view that the judge was wrong to give credence to a particular witness, or to find a witness unreliable, in either case because “a whole body of evidence points inescapably to a conclusion different from that reached by the judge at first instance, where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal.” [footnote omitted]

61. In applying the principles in the above extracts from Cross on Evidence33 the

Appeal Tribunal should be loath to intervene to disturb findings of fact by the

Original Tribunal. The Original Tribunal had the advantage of hearing what the

witnesses had to say and of observing two of the witnesses when they gave their

evidence. Notwithstanding Mr Thompson’s submission that the boundary was

as shown in the photograph he relied on, this was disputed by Mr Planinac.

The Original Tribunal had all of the photographs in evidence before it as well as

the oral evidence. Mr Watt had not questioned the location of the boundary as

identified by the respondent’s string lines.

62. The Original Tribunal did not accept Mr Thompson’s argument as to where the

boundary was. It found that the boundary of the respondent’s property was as

submitted by Mr Planinac. Mr Planinac’s evidence was supported by Mr Lau

and Mrs Sakamoto. This finding was reasonably open to the Original Tribunal

on the available evidence. There was no compelling evidence to demonstrate

that the decision of the Original Tribunal to prefer the evidence of one or more

witnesses rather than another or others was wrong.

63. It follows that ground (c) of the appeal is not made out.

64. The Appeal Tribunal now considers Ground (d) in paragraph 36 above and the

ground in paragraph 37 — that the Original Tribunal erred in:

(a) ground (d) — finding that the engineering plans show that on 3 May 2017,

after the changed boundary excavation in December 2016 came to light,

they were amended and these changes were due to the significantly

changed nature of the boundary as compared with the initial plan and the

instability of the soil that resulted; and

33 J D Heydon AC, Cross on Evidence (LexisNexis, 11th ed, 2017)

20

(b) at paragraph 37 — denying the appellant’s claim that the original

engineering plan was inadequate and would need amendment and

accepting Mr Planinac’s denial of this claim and finding that Mr

Planinac’s evidence was the most expert on the issue.

65. Burbank submitted that Mr Lau’s builder’s (Mr Planinac’s) original design dated

7 February 2017, and the minor amendment dated 15 February 2017, should

have included a deepened edge beam and short piers because he had introduced

fill to the site. Mr Planinac had given evidence that, before he became aware of

the overcut, as they were cutting the top, they were having a small amount of

fill, “so we had the slab on the top and we had some piers going in where the fill

was over 400 mil.”34

66. Mr Planinac had only provided the Original Tribunal with copies of the plans

dated 15 February 2017 and 3 May 2017. Neither the 15 February 2017 plan he

provided nor the 7 February 2017 plan which Mr Thompson had obtained under

subpoena to Mr Lau’s engineers, Indesco, showed the deepened edge beam or

the piers. The 3 May 2017 plan did show 22 piers and a deepened edge beam;

however, it also showed a further 14 hand drawn piers. The 3 May 2017 plan

produced by Indesco did not show the further 14 piers that had been hand drawn

onto the plan.

67. Mr Planinac alleged that the 3 May 2017 amendments were necessary because of

Burbank’s overcut into the boundary which required additional engineering

work requiring an edge beam and piers as shown. He denied that the February

plan or plans were inadequate and would need to be amended as claimed by

Mr Thompson.

68. Burbank submitted that Mr Lau is wrongly claiming the whole cost of the edge

beam and the piers from it when his own builder admitted that he was always

going to have an edge beam and some piers going in where the fill was over

400 mil (see paragraph 65 above).


21

69. Accordingly, on 28 February 2019, the Appeal Tribunal sought further

clarification in relation to the absence of the piers in the February plans and of

the hand drawn piers in the 3 May 2017 plans.

70. In his reply Mr Lau’s builder, Mr Planinac, variously stated that: 35

Landscaping fill does NOT require piers

[the h]ouse was designed to be up to max 400mm fill originally so no piers needed technically nor any drop edge beam

…a waffle slab used, has its base sitting LOWER36 than the finished landscape levels…

There was NO drop edge beam or piers allowed in the DA design specifically, we cut the garage in at top right side of garage to avoid this need

No cost allowance for any of the above [first drop edge beam]

Second drawing [3 May 2017] required due to overcut and sole reason for extra costs shown in additional work claim.

71. Mr Planinac acknowledged that there were 14 hand drawn piers marked on the

3 May 2017 plan describing this “as good practice due to site conditions and

pipework or other deemed good to do” and said “we added these [14 piers] at no

cost to client and have not charged anyone to date.”37 He said the cost for the

extra 14 piers was not included in Mr Lau’s damages claim.

72. Burbank, in its reply, maintained that Mr Lau was always going to need piers on

this job and the cost should have been allowed in the builder’s price to Mr Lau.

Burbank attached its review of the original building plans in which it

highlighted the contour of Mr Lau’s site and identified five locations on that

plan and on the various elevation drawings of the house where it set out the

measurements showing more than 400mm of compacted fill which required

piers.

73. Mr Thompson also resubmitted a photograph showing the original line of the

Sekisui excavation as well as Mr Lau’s slab. He alleged that the photograph

shows the original foundation material does exist after the placement of the slab 35 Respondent’s submissions in response to Tribunal request dated 8

March 201936 10 to 200mm below ground lines on architect drawings to reduce fill37 Respondent’s submissions in response to Appeal Tribunal request

dated 8 March 2019 at page 6

22

for Mr Lau’s house — which is the exact corner of the house that Mr Planinac

claimed was overcut. Burbank also provided costing for extra piers from

Priyan Senanayake, Burbank’s Senior Production Estimator and Purchasing

Coordinator, in the following amounts: Hanson Construction Materials concrete

supply at $190 per m³; and ACT Concreting concrete labour at $37.50 per lineal

metre.38

74. The Appeal Tribunal noted that the Original Tribunal found Mr Planinac’s

evidence the most expert on this issue and accepted his evidence. Mr Thompson

did not give evidence to the Original Tribunal, as he said he did not come into

the matter until June 2017. Nor did he call evidence from an expert witness. The

only person to give evidence on behalf of the appellant was Mr Watt, who was

Burbank’s building supervisor of the Sakamoto property at the relevant times

and gave evidence in that capacity. Mr Watt said that he was a licensed builder

in the ACT and a licensed supervisor in NSW. However, he did not give his

evidence in the capacity of an expert witness.

75. Mr Thompson strongly advocated that the Appeal Tribunal find that the decision

of the Original Tribunal to accept Mr Planinac’s evidence in relation to this

issue was against the evidence and the weight of the evidence. He urged the

Appeal Tribunal to find that, had Mr Planinac had the building appropriately

costed after the contour survey was undertaken, it would have been apparent

that he needed to put in fill in excess of 400mm and, therefore, needed to have

piers under Mr Lau’s house. He completely refuted Mr Planinac’s evidence that

the changes to the drawings on 3 May 2017 were because of the overcut.

76. Mr Planinac, as strongly, rejected Mr Thompson’s claim. He was adamant that

prior to the overcut he did not need to install piers and that the need to install

piers was solely attributable to Burbank’s overcut.

77. Their evidence before the Original Tribunal and the Appeal Tribunal was

diametrically opposed. The question for the Appeal Tribunal is did the

Original Tribunal make a finding of fact that was clearly wrong or exercise a

discretion on a wrong principle or in a way that was clearly wrong.38 Appellant’s submissions in response to Appeal Tribunal request dated

15 March 2019

23

78. In the recent appeal decision in Puri v Iconic Markets and Events Pty Ltd that

appeal tribunal set out the role of the Appeal Tribunal as follows:39

54. Section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a party to an original application may, by application, appeal the decision to the Tribunal ‘on a question of fact or law’. That provision shapes the requirements and limitations of the appeal.

55. The role of the Appeal Tribunal is different from the role performed by the Original Tribunal. An appeal Tribunal must determine whether the decision appealed from is wrong because the original Tribunal fell into an error of law, made a finding of fact that was clearly wrong or exercised a discretion on a wrong principle or in a way that was clearly wrong. Ordinarily, if there has been no further evidence admitted or no relevant change in the law, an appeal Tribunal can exercise its appellate powers only if satisfied that there was an error on the part of the original Tribunal. The appeal Tribunal will also give proper allowance to the advantage of the original Tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

56. As differently constituted Tribunals have observed in previous cases, an appellant does not have standing to appeal as of right and is required to identify a question of fact or law. The appellant cannot merely request the re-exercise of a discretion. The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that were so there would be no point in the original hearing. [foot notes omitted]

79. The Appeal Tribunal refers to and adopts the statement by the plurality of the

High Court in House v R40 in at paragraph 26, above, which set out established

principles in relation to an appeal from a discretionary decision. It also adopts

the statements in paragraph 78, above.

80. No doubt Mr Thompson believes a substantial wrong has resulted from the

decision of the Original Tribunal. The Original Tribunal had the advantage of

hearing all of the evidence at first instance and of assessing those witnesses who

appeared personally at that hearing. It accepted Mr Planinac’s evidence, having

found him the most expert on the issue. Its decision should not lightly be

overturned.

39 [2019] ACAT 2840 [1936] HCA 40 per Dixon, Evatt and McTiernan JJ

24

81. The reality for the Appeal Tribunal is that, even if I had been presiding at first

instance and taken a different course, that is not enough to allow the appeal.

Mr Planinac gave evidence and was cross-examined by Mr Thompson. For the

appellant, Mr Watt was the only person who gave evidence. The Original

Tribunal found in favour of Mr Lau. It not only had all of the evidence and

submissions, but it also had the later submissions filed by the parties on 26, 27,

28 and 30 July 2018 in which, particularly, Mr Thompson, had the opportunity

to repeat his primary submissions that:

The plans presented show that no piers or edge beam were allowed for in “Original Design 1” dated 15.02.17.

Whereas “Revised Engineering 2” (dated 03.05.17) shows that the engineer has now incorporated a “Deepened Edge Beam” plus 36 Piers. It is this EXTRA work that Paramount Concreters have presumably quoted. Yesterday Boris [Planinac] told us that the original design already DID include a deepened edge beam and short piers. Yesterday Boris was caught between two difficult choices while he was presenting evidence and while being questioned on that matter:

1. he could say that the edge beam and piers were not included in the first place, however that would highlight the obvious fact that they were about to proceed on a site with a design that would not stand up in “mid air” (remembering that they had raised the ground level by at least 500mm).

2. or he could say to us that the edge beam and short piers were included in the original design (which he did) and that the extra money was purely for the extra length of piers that were required because of the unstable soil.

…we are saying that Mr Lau’s builder cannot have it both ways – he cannot say that his Originally costed design was adequate to complete the job if it did not incorporate a deep edge beam with at least some length of piers – while at the same time saying that Paramount Concreters would have charged the Quoted amount of money to incorporate the Engineer’s (so called) Revised plans. We also find it odd that Paramount were not even used to do the job and that Mr Lau’s builder is unwilling to provide invoices for the actual work, (which he must retain for his structural warranty obligations and tax purposes).41

82. The Appeal Tribunal is not satisfied that the Original Tribunal failed to give

proper weight to Burbank’s evidence or its submissions. It was for that Original

Tribunal to weigh up all of the evidence in coming to its decision. In doing so,

the Appeal Tribunal is not satisfied that the Original Tribunal erred or allowed

41 Email response by the appellant dated 26 July 2018

25

extraneous or irrelevant matters to influence it. The Original Tribunal’s findings

were not contrary to incontrovertible facts or uncontested testimony.

83. Ground (d) 42of the appeal and the ground in [37] above are not made out.

84. The Appeal Tribunal now turns to the final ground of appeal in paragraph 36(e) —

“that the Original Tribunal erred in finding that the natural and probable

consequences of the appellant’s trespass was as set out in the S&G invoice

dated 22 May 2017 of $16,430.”

85. The evidence before the Original Tribunal in relation to the quantum of the claim

was unsatisfactory. At the commencement of the original hearing the Senior

Member said:43

So, today, I guess if you’re claiming trespass and damages the issue would be: is Burbank liable and why? You’ve got to prove that. The onus of proof is on you [Mr Lau]. If they are, what damages are due to you because you’ve got to prove each of those damages…

86. The claim included $10,340 for additional concrete quoted by Paramount.

The following exchange occurred in relation to this quotation44

Senior Member: So that quote. Well there should be an invoice. Didn’t you get the concreting done?

Mr Planinac: We ended up using a different concreter after that.

Senior Member: Do you know how much you paid that concreter? I’m sorry, I’m just trying to work it out.

Mr Planinac: It’s too confusing because –

Senior Member: Well, why do we want a quote from someone you didn’t use? Like if you’re saying this is how you prove what the damages were?

Mr Planinac: Well, I’ll give you a copy of the paperwork that we had at the time which ties in with all of this.

Senior Member: So you’re saying that you got a quote for the extra concreting, if you like?

Mr Planinac Yes.

Senior Member: And that’s by who?

42 In [36]43 Transcript of proceedings (original hearing) 25 July 2018 page 6,


lines 3-37

26

Mr Planinac: Paramount Concrete.

Senior Member: All right. So, Paramount, is it? Okay. So if you could do that tomorrow, if that’s not too difficult. Send it to the other party and email it to the tribunal.

87. After the hearing Mr Planinac provided to the Original Tribunal and Burbank,

again, the same 10 May 2017 Additional Works Claim letter that Mr Lau had

previously included in his claim, and informed the Original Tribunal that the

quotes had been given to Daniel Watt before Mr Planinac had commenced the

work.

88. The only evidence, apart from the Additional Works Claim letter referred to in the

previous paragraph, in relation to the quantum of the claim was that Mr Lau had

paid Mr Planinac the sum of $16,430.40 by releasing Mr Planinac from his

contractual obligation to install the landscaping for $10,000 and he had paid the

balance at the time the kitchen was installed. That may well have been the

reason why the Original Tribunal assessed the damages at $16,340.40 in the

absence of the actual quotation from Paramount Concreting or from the actual

concreter Mr Planinac used.

89. The Appeal Tribunal referred above to the High Court decision in House v R in

which the plurality referred to a situation where it may not appear how the

primary judge has reached the result embodied in the order. It falls to the

Appeal Tribunal to determine if, upon the facts, the decision to assess the

damages at $16,340.40 is unreasonable or plainly unjust or contrary to

uncontested testimony such that I may infer, after allowing for the advantages

enjoyed by the Original Tribunal in seeing and hearing from the witnesses, that

in some way there has been a failure to properly exercise the discretion by the

Original Tribunal.

90. On 28 February 2019 the Appeal Tribunal also sought, pursuant to section 26 of

the ACAT Act, that Mr Lau or his builder provide the quotation he had obtained

from Paramount Concrete as well as the quotation, invoice or receipt from the

different concreter Mr Planinac had said, in his evidence (at paragraph 86

above), he had used for the concreting. Neither Mr Lau nor Mr Planinac

27

provided this evidence to the Appeal Tribunal. Nor did they provide this

evidence to the Original Tribunal when given the opportunity to do so.

91. Mr Thompson provided the evidence set out in paragraph 75 above in relation to

the cost of concreting. It does not go as far as providing the total cost which

may have been of assistance in determining whether the amount of $10,340 was

unreasonable. In any event the onus is not on Burbank to provide this evidence.

It remained at all times with Mr Lau.

92. The Appeal Tribunal is satisfied that Mr Lau and Mr Planinac had been given

more than sufficient opportunity to provide documentary evidence to

corroborate Mr Planinac’s claim that the cost of concreting was $10,340 even

though he did not use Paramount Concreting. Mr Planinac’s explanation as to

why he could not provide this information in 2018 and in 2019 was not

convincing. He said he had not used Paramount Concreting. He did not provide

the name of the concreter he claimed he had used, or any evidence of any

monies he paid to that concreter. The only compelling inference which can be

drawn from his evidence that he used a different concreter is that the concreter

he used was cheaper than Paramount Concreting. Without any evidence of any

payment to the different concreter, the question of what if any money was paid

for this work arises. Mr Thompson submitted, Mr Planinac should have retained

these documents for his structural warranty obligations and tax purposes. In the

absence of such evidence the Appeal Tribunal finds that the Original Tribunal

erred in assessing Mr Lau’s damages as including the $10,340 for concrete. It

was, as stated by the Chief Justice of the ACT Supreme Court in Legal

Practitioner, “contrary to compelling inferences”.45

93. Mr Lau was placed in an invidious position as his building work was being held

up by Mr Planinac until the payment he demanded for the ‘extra’ work had been

resolved. While Mr Lau paid the amount demanded to ensure that his building

work progressed, that of itself, considering Mr Planinac’s uncorroborated

evidence of the cost of the concrete, is not satisfactory evidence of the actual

damage.

45 See paragraph 27, above

28

94. For these reasons, the Appeal Tribunal is satisfied that to allow the original

decision to stand, given the lack of any or any credible evidence particularly in

relation to the concreting costs would result in a substantial wrong being

incurred.

95. The Original Tribunal dismissed Mr Lau’s claim for $3,300 scaffolding costs “due

to a lack of evidence about the quantum of this claim.”46 Mr Lau and his builder

failed to provide corroborative evidence to support the damage claimed of

$10,340 or any other amount for ‘additional’ concrete. Mr Lau did not discharge

the onus of proof in relation to establishing the quantum of the damages claim.

96. The Appeal Tribunal is satisfied that the Original Tribunal erred in finding the

cost of the ‘additional’ concrete was $10,340 and that the decision to assess the

damages at $16,430.40 was wrong.

97. This appeal ground is established. The appeal will be allowed in part. The

damages to be paid by Burbank are to be assessed excluding the additional

concrete claim of $10,340, namely $6,090.40 plus interest from 9 January 2018

to 15 April 2019 of $423.99 and the filing fee of $150.

Conclusion

98. Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No

2) sets out the Appeal Tribunal’s general powers. Rule 21(d) provides that the

Appeal Tribunal “may make an order confirming, amending or setting aside the

order of the Tribunal appealed from”.

99. For the reasons set out above, the Appeal Tribunal sets aside the decision of the

Original Tribunal dated 13 August 2018 and substitutes the following order:

(1) The appellant, Burbank Australia Pty Ltd, is to pay the respondent, Jason

Lau, $6,664.39 by close of business 9 May 2019.

………………………………..Presidential Member E Symons

46 Transcript of proceedings (delivery of decision) 13 August 2018 page 8, line 44; page 9, lines 1-2

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HEARING DETAILS

FILE NUMBER: AA 38/2019

PARTIES, APPLICANT: Burbank Australia Pty LtdACN 007 099 872

PARTIES, RESPONDENT: Jason Lau

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT N/A

SOLICITORS FOR RESPONDENT N/A

TRIBUNAL MEMBERS: Presidential Member E Symons

DATES OF HEARING: 17 December 2018

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