1. Rain water flows from lot 3 to lot 2 in such a way, the Woollards allege, that it floods lot 2. The Woollards allege that this has occurred because Mr and Mrs Miglas have interfered with the flow of water. They claim damages of $7,810.00 as the cost of drainage works that would deal with the flow and stop the flooding.
2. The land in question falls south to north towards lot 2. The property that adjoins the eastern boundary of lots 2 and 3 is considerably higher than those lots. There is a retaining wall on the boundary. Because of the fall of the land, water that runs off lot 3 runs along the common property driveway towards lot 2. There is also ground water seepage beneath the retaining wall that enters lot 2 and lot 3. Mr Miglas gave uncontradicted evidence that the seepage occurs.
3. Mr Wenning, the plumbing consultant who gave evidence for Mr and Mrs Miglas, described a stormwater drain that services lots 2, 3 and 4 and connects to a point of discharge which is near to, but beyond, the north-western corner of lot 2. He also described, and supplied a photograph of, a stormwater drainage pit within lot 2 and opposite the driveway.
4. Soon after the Woollards took possession of lot 2 in 2010 they constructed an open drain along lot 2's eastern boundary. They extended the open drain so that it ran along Mr and Mrs Miglas' side of the fence line between lots 2 and 3 and then for about 40 metres along the eastern edge of the common property driveway. The extension was done while, at Mr Miglas' request, the Woollards' excavation contractor did some levelling of lot 3's surface.
5. The part of the open drain that was on lot 3 no longer exists. I refer below to the circumstances in which, according to the Woollards, it ceased to function effectively and then ceased to exist.
6. According to Mr Woollard's evidence, the open drain, for as long as it functioned effectively, captured water that came off lot 3 onto the common driveway and took it to the drainage pit, so that there was no flooding of lot 2 and the flow of water from lot 3 to lot 2 was reasonable. There was no expert or independent evidence as to how water flowed from lot 3 to lot 2 before or after the construction of the open drain was completed, or whether the flow was reasonable or unreasonable before or after the time of completion.
7. The Woollards allege that, on three occasions, Mr and Mrs Miglas have interfered with the flow of water, as it had been after the completion of the open drain's construction, and have caused an economic loss which is the cost of drainage works that will deal with the flooding of lot 2:

(a) In 2011 Mr Miglas had some work done to lot 3 to build another wall on the eastern boundary and to provide car parking. The excess fill from the construction of the wall was left uncompacted on the eastern side of the common property driveway. Rain water carried some of the loose fill to the open drain and silted it up, so that it blocked the drain.

(b) In 2013 Mr Miglas built a rock wall along the fence line, over part of the drain. Although Mr Miglas' contractor proposed to lay a pipe beneath the wall so that there would still be an effective drain, Mr Miglas took away the pipe.

(c) In 2014 Mr Miglas removed the rock wall but filled up the area where the drain had been, and placed a rock near the fence line and the gate from the driveway into lot 2, causing water to be diverted onto the driveway and into lot 2.

1. So far as is relevant to the ways that the Woollards put their case or that Mr and Mrs Miglas defended it, the Water Act 1989 provides:

(a) a person interferes with a reasonable flow of water onto any land or by negligent conduct interferes with a flow of water onto any land which is not reasonable; and

(b) as a result of that interference water causes -

(ii) damage to the property (whether real or personal) of any other person; or

the person who interfered with the flow is liable to pay damages to that other person in respect of that injury, damage or loss.

(1) The Tribunal has jurisdiction in relation to all causes of action (other than any claim for damages for personal injury) arising under sections 15(1), 16, 17(1) and 157(1) of this Act ...

(3) In exercising jurisdiction conferred by subsection (1), the Tribunal -

(ab) may make an order for payment of a sum of money awarding damages in the nature of interest; or

20 Matters to be taken into account in determining whether flow is reasonable or not reasonable

(1) In determining whether a flow of water is reasonable or not reasonable, account must be taken of all the circumstances including the following matters -

(a) whether or not the flow, or the act or works that caused the flow was or were authorised;

(e) the uses to which the lands concerned and any other lands in the vicinity are put;

1. By virtue of s 16(2)(a) there are two circumstances in which interference with a flow of water onto land may expose to liability the person who interferes when the interference causes injury, damage to property or economic loss. The first circumstance is where the flow interfered with is reasonable. In that circumstance, any interference creates the exposure to liability: a strict liability. The second circumstance is where the flow interfered with is not reasonable. In that circumstance, there is exposure to liability only if the interference takes the form of negligent conduct.
2. For reasons which follow, I decide that on the first of the three alleged occasions Mr and Mrs Miglas did interfere with a reasonable flow of water onto lot 2, and that their interference will probably cause the Woollards to suffer economic loss, but I also decide that the Woollards have not satisfactorily proved what amount of loss they will suffer. So the Water Act claim will be dismissed.
3. That first alleged occasion of interference was the causing of the open drain to be silted up and blocked, so that the drain could not carry away what had been a reasonable flow of water onto lot 2, and flooding of lot 2 occurred.
4. The starting point in the determination of the Water Act claim is to decide whether the flow of water onto lot 2 was reasonable, as the Woollards allege that it was, after the open drain was completed and before the first of the alleged occasions of interference occurred. Mr Triaca submitted that, in the absence of any evidence that gave a detailed history of the flow of water before the completion of the drain, and which took into account the matters set out in s 20(1), I should not be satisfied that the Woollards had proved that there had been a reasonable flow of water.
5. In my view there is no need to make a comparison between the flow of water before the completion of the drain and after its completion, or to decide whether the flow before the completion was or was not reasonable. I need to decide only whether, after the completion and before the first alleged occasion occurred, the flow was reasonable.
6. In deciding that question I am required by s 20(1) to take into account all of the circumstances including the nine matters numbered (a) to (i) set out in the subsection. I have taken all those nine matters into account, even though the only ones mentioned by Mr Triaca in his written submission on the Water Act claim were (a), (e) and (f), which I have set out above. In paragraph 156 below I say something about Mr Triaca's submission on matter (a). More important than any of those matters, however, was Mr Woollard's evidence about the flow of water once the drain was completed. It was uncontradicted. It pointed towards a conclusion that the flow was reasonable once the drain was completed. Neither party submitted that any of the matters specified in s 20(1) pointed towards a different conclusion and in my opinion they did not. I conclude, therefore, that after the completion of the open drain in 2010 the flow of water onto lot 2 was reasonable.
7. The next question is whether Mr and Mrs Miglas interfered with the reasonable flow of water onto lot 2. The Woollards maintain that they interfered by leaving uncompleted fill on lot 3 so that silt found its way into the drain and blocked it.
8. The evidence that bore upon that question was as follows:

(a) In his verified witness statement Mr Woollard gave evidence, again uncontradicted, that in July 2011 several truckloads of fill were dumped in lot 3 near the eastern side of the common property driveway during the course of construction of a wall, that silt from the fill was carried into the open drain, that the drain became blocked with silt and that water flooded across lot 2 instead of being carried by the drain.

(b) An annual general meeting of the owners corporation was held on 26 February 2013. Mr Woollard and Mr Miglas were present at the meeting. According to minutes of the meeting (apparently prepared in Mr Miglas' office, because the minutes were headed in a way that recorded the office's email address), 'general business' at the meeting included the following:[57]

The owners of Lot 2 had expressed their concern that the clean fill had been unsightly, and should be leveled out. Also pointed out was the fact that the un-compacted fill in heavy rain was subsequently washing into and blocking the drainage system on Lot 2.

James & Phillip offered to level out the fill at their expense provided they have permission to do so as it is private land.

Anatol assured the meeting that action would be taken to remedy the situation.

That entry in the minutes appeared to have recorded Mr Miglas' acknowledgment that uncompacted fill had been washing into and blocking the drain.

(c) In his report Mr Wenning accepted that the placement of fill material on lot 3 caused siltration of surface water flows. He went on to say in his report that he did not believe that the siltration caused an increase in the flow of water, but during cross-examination he agreed that he had not been made aware of the existence of the open drain and that fill which was left unstabilised would result in siltration that could block an open drain.

1. I accept all that evidence. I find that after July 2011 the drain became blocked by silt that had originated from uncompacted and unstabilised fill left on lot 3, and that because of the blocked drain flooding occurred on lot 2.
2. There was no evidence that identified the person or persons who physically left the fill on lot 3 in July 2011 after the construction of a wall. In his verified witness statement Mr Miglas gave evidence that he had 'authorised' some rock landscaping and the construction of a wall,[58] implying that he had engaged someone else to do those things. The parties seemed to have been proceeding on the basis, and I readily infer it to have been the fact, that Mr Miglas had engaged an earthworks contractor to do those things and that it was the earthworks contractor who had left the uncompacted fill on the land.
3. One of Mr Triaca's written submissions was that because it was an independent contractor who had left fill on lot 3, and had performed all the other acts or omissions alleged to have been interference with the flow of water, only the independent contractor, not Mr and Mrs Miglas, could be liable under s 16(2) for any damage that the water caused. That was a startling proposition because, if correct, it would mean that in practice very few owners or occupiers of land could ever be liable under s 16(2); works that allegedly interfered with a flow of water would usually be done by an independent contractor. What made it even more startling was that Mr Triaca cited a decision of then Deputy President (now his Honour Judge) Macnamara which, at first sight, appeared to support the proposition: Trycala Importers & Wholesalers Pty Ltd v Growmac Imports Pty Ltd.[59] This was the second of two matters about which I invited the parties to make additional submissions (the other having been the proprietary estoppel issue): whether there was any liability of Mr and Mrs Miglas for the consequences of work done by an independent contractor.
4. In his additional submission Mr Rimmer referred me to another Tribunal decision by Senior Member Walker, Fyson v Leederville Pty Ltd,[60] which in my view correctly distinguished and explained the Trycala decision. In the Trycala case, a builder, engaged by an occupier of land to excavate the land and erect a building on it, deposited a quantity of dirt in a position that created a dam and diverted water onto the applicant's land. The applicant did not allege that the builder had been required to deposit the dirt there as part of its contract or by the occupier's instruction. Instead, the applicant alleged that the occupier was liable for damage the water caused because the contractor was the occupier's 'servant or agent'. The Deputy President (as his Honour then was) held that as a matter of law an independent contractor is a principal, not a 'servant or agent', and so the person engaging the contractor cannot be vicariously liable for damage that the contractor causes. There having been no other alleged basis for liability of the occupier, the proceeding could not succeed against it. By contrast, in the Fyson case, the allegation was that the very drainage system that the occupier of land had engaged an independent contractor to install has been defective and failed to prevent flooding to the applicant's land. The Senior Member rejected an argument (based on the Trycala decision) that because an independent contract, not the occupier, had installed the allegedly defective system the occupier could not be liable for damage that resulted from the defect, and held that because the contractor had done what the occupier had instructed it to do, the occupier was liable:

If I cause something to be done it is as if I have done it myself and if it causes damage it is no answer for me to say to the person who suffered that damage: "I did it using an independent contractor."[61]

The Senior Member went on to distinguish the Trycala decision on the basis that, in that case, there was no allegation that the occupier had caused or instructed the contractor to deposit the dirt where it did and that the case that the applicant put was consistent with the contractor merely having done it 'incidentally'.[62]

1. In the present case Mr and Mrs Miglas have never alleged that an independent contractor engaged to build a wall and deal with left-over fill had not been authorised to leave the fill where it did on lot 3 in an uncompacted state. Absent the allegation or any evidence in support of such an allegation, Mr and Mrs Miglas must be regarded as having performed those actions themselves.
2. I conclude that Mr and Mrs Miglas interfered with a reasonable flow of water from lot 3 to lot 2 when they left uncompacted fill upon lot 3 in July 2011. The result was that silt was carried to and blocked the open drain.
3. Mr Rimmer submitted that that interference was the result of negligent conduct and that I should so find. If I were to make such a finding, it would not have mattered whether the flow of water interfered with was reasonable or not reasonable. But I am not prepared to make such a finding. In their Amended Points of Claim the Woollards did not allege that the placing and leaving of uncompacted fill on lot 3 was negligent. It was not put to Mr Miglas in cross-examination that he should have taken care to compact the fill. The allegation of negligence was not made fairly and squarely before Mr Rimmer made his submission. Making an adverse finding on that matter would be procedurally unfair to Mr and Mrs Miglas. Nevertheless, the potential liability to which they are exposed following their interference with a reasonable flow of water onto lot 2 is a strict liability.
4. As the Woollards' case, which I have accepted so far, is that Mr and Mrs Miglas' interference in July 2011 resulted in the flow of water flooding lot 2 instead of being carried away in the open drain, it follows that they are contending that the flow of water onto lot 2 after July 2011 was not reasonable, and that any further acts of interference after that date were acts of interference with an unreasonable flow of water. By virtue of s 16(2)(a) Mr and Mrs Miglas are exposed to potential liability if by negligent conduct they interfered with the flow of water onto lot 2 which was not reasonable. That is to say, the Woollards are required to prove negligent conduct before any potential liability could arise from interference with such a flow of water.
5. Following the annual general meeting during which Mr Miglas agreed to take action to remedy the siltration of the drain, Mr Miglas did level the fill and build a rock wall along the boundary between lots 3 and 2. The wall covered the part of the open drain which had run parallel to the fence line. This occurred in 2013. The rock wall was removed the following year. There was no evidence that the temporary presence of the wall interfered with a flow of water; the drain was already blocked. The Woollards, however, allege that there was another act of interference at the time that the rock wall was built. Mr Woollard's evidence about this, in his verified witness statement, was as follows:[63]

The excavator operator went and bought a pipe to put in the existing drain where the rock wall was going to go on top. James then offered to install a pit on Lot 3 however the excavator said don't worry about a pit and that he would ensure that there was still adequate drainage under the rock wall. However the excavator told James the next day when putting in the rock wall that Anatol had taken out the drain pipe that had been purchased for this purpose.

1. Mr Miglas denied having taken out or done anything with a drain pipe; he said that he had not seen any pipe at the time that the rock wall was built. His evidence in cross-examination was that he had seen a coil of hose and had said that it should not be part of the installation. He did not elaborate.
2. The Woollards' evidence on this matter was unsatisfactory. Neither the excavator operator nor James Woollard gave evidence. So Mr Woollard's evidence that I quoted in the previous paragraph was double-hearsay. It carries very little weight as against Mr Miglas' denial. The Woollards have not proved, on the balance of probabilities, that Mr and Mrs Miglas took away a pipe or engaged in any conduct on the occasion in question that interfered with a flow of water, let alone any negligent conduct.
3. The third occasion of alleged interference was when the rock wall, built in 2013, was removed during the following year. The Woollards have alleged that Mr Miglas caused the drain to be filled in. Presumably that is an allegation that his contractor filled in the drain in the course of doing the work that the contractor was engaged to do. As the Woollards' case, which I have accepted, was that the drain had already been silted up and blocked before the rock wall was built then removed, and there was no evidence that the filling-in of the drain made the flow of water onto lot 2 greater than it had been beforehand, the Woollards have not proved, on the balance of probabilities, that a filling-in of the drain was conduct, let alone negligent conduct, that interfered with a flow of water.
4. Although there was no reference to the event in either of his witness statements, Mr Woollard gave some oral evidence of a large rock having been placed near the driveway gate between lot 2 and lot 3 after the rock wall had been removed. I observed this rock during the view on 7 July 2015. Mr Woollard's evidence was that the rock caused water to be diverted onto the driveway near the gate. I accept that, but it was not evidence that the presence of the rock made the flow of water onto lot 2 greater than it would otherwise have been.
5. Mr Triaca submitted that whatever Mr and Mrs Miglas did, that affected a flow of water, was 'authorised' within the meaning of s 20(1) because the Shire of Yarra Ranges, when approving the proposed amending plan, had issued a planning permit that required drainage to be constructed on all lots to the Shire's satisfaction.[64] Although there was no evidence of the Shire having gone on to issue a statement of compliance in accordance with the permit, I shall assume that the Shire did issue that statement. Nevertheless, whether the drainage system that existed at the time of approval - if that system was 'authorised' in the relevant sense - is a matter that, as provided for in s 20(1), only goes to the question of whether a flow of water is reasonable or not reasonable. As I have decided for other reasons that the flow of water onto lot 2 was reasonable before Mr and Mrs Miglas interfered with the flow, it is not necessary to decide whether the flow was 'authorised' within the meaning of s 20(1)(a).
6. The outcome is that the Woollards have proved that the occasion of leaving uncompacted fill on the surface of lot 3 in 2011 was an interference with a reasonable flow of water onto lot 2 because it led to a silting and blockage of the open drain, but have not proved that there was any later negligent conduct that interfered with a flow of water, which was not reasonable, from lot 3 onto lot 2.
7. The next question is whether that interference caused the Woollards to suffer economic loss. That question involves two sub-questions. First, did the interference cause the flooding of which the Woollards have complained? Secondly, if so, has the flooding caused the Woollards to suffer economic loss?
8. As to the first sub-question - causation of the flooding - Mr Triaca submitted that the evidence showed that there were multiple sources of water that flowed into lot 2 and that there was no way of differentiating the effect of water that originated on lot 3, once it reached lot 2, from the effect of water that came from other sources. So far as it went, the submission was correct. The sources of water that reached lot 2 have always been seepage from the adjoining property on the east beneath the retaining wall, rain water that falls on lot 3 and rain water that falls on the common property driveway. Irrespective, however, of the sources of the water that has reached lot 2, I have found that the flow of water had been reasonable for as long as the unblocked open drain was there to cope with it, and I have also found that the flooding of lot 2 occurred once there was the interference that led to the silting-up and blocking of the drain. I am therefore satisfied that the interference caused the flooding.
9. The economic loss that the Woollards claim to have been caused by the interference is the cost of plumbing works that would intercept the flow of water onto lot 2. The only evidence that they offered on the subject was a quotation dated 27 November 2014 that they had obtained from Piping Hot Plumbing Pty Ltd. Part of the quotation read:[65]

The natural water course has been totally altered by excess spoil and fill being placed outside property on eastern wide of driveway. This has caused storm water to be diverted out onto the driveway and into Factory 2.

To rectify problem a 900mm & 600 mm pit needs to be constructed in the centre of drive at property entrance. A cut off / aggy drain needs to be installed from pit to south east corner of property.

The quotation was for $7,810.00 for the cost of removing concrete, constructing the pit, installing the drain and reinstating the concrete.

1. Neither the author of the quotation nor any other person from Piping Hot Plumbing Pty Ltd gave evidence. So there was no evidence that explained why the doing of the work quoted for would solve the problem of storm water being directed onto lot 2 or that explained how the quoted cost had been calculated or arrived at.
2. Mr Wenning, the expert witness for Mr and Mrs Miglas, disputed the claim that the work quoted for would solve any such problem. The relevant parts of his report were:

The solution proposed by Piping Hot Plumbing would partially intercept sub-soil water and surface stormwater along the northern boundary of Unit 3. However, due to the topography of the property, and gradients in the common driveway, I do not believe that the solution proposed by Piping Hot Plumbing would satisfactorily intercept all overland flows for a rainfall event with an Average Recurrence Interval ≥ 10 years for 5 minutes which for Montrose is approximately 100 mm/h.[66]

The Quote / Stormwater Report of Piping Hot Plumbing does not contain any assessment of the condition or capacity of the existing drainage facilities. For the most part, the solution proposed by Piping Hot Plumbing would intercept the flows at a higher level in the stormwater drainage system, and not provide or add any additional capacity to stormwater drainage that the Applicant claims now floods on Unit 2.[67]

By his saying that the proposed works would intercept the flows 'at a higher level' I have taken Mr Wenning to mean that there would be a pit at the point where the driveway meets lot 2, further to the south than the existing pit within lot 2.

1. In addition to submitting that the Woollards had failed to prove by acceptable evidence that the proposed works were necessary to remedy the consequences of interference with a flow of water so that the interference had caused economic loss in the claimed sum of $7,810.00, Mr Triaca submitted that there was a more fundamental reason why the Woollards had not established any economic loss. The submission was that no claim under s 16 was maintainable unless there was proof of actual damage from the flow of water, and that the cost of taking remedial action to prevent or reduce a flow of water was not actual damage. He cited a passage from a Supreme Court decision, Di Clemente v Small,[68] in support of the submission.
2. I reject the submission. It overlooks that under s 16(2)(b)(iii) the liability of a person who interferes with a flow of water onto land to pay damages arises if the interference causes another person to suffer economic loss, not necessarily injury or damage to property. The passage cited does not support the submission. In the Di Clemente case there was an application for an injunction restraining the respondents 'from continuing to cause damage to the claimants' land'[69] which the Tribunal dismissed because the applicants did not provide any evidence of actual damage.[70] There was no allegation that the flow of water complained of had caused economic loss as distinct from damage to property. Balmford J, dismissing an appeal, rejected a submission that it was not necessary for the applicants to have established actual quantifiable damage. The first and last sentences from the passage Mr Triaca cited show that there had been no allegation of economic loss, only an allegation of damage to property (emphasis added):

Mr Jolson submitted that the concept of damage under the Act was not limited to actual quantifiable damage to property. I did not understand Mr Jolson to be submitting that that remedy was available where, as here, no actual damage (absent a claim for injury or loss) was found by the Tribunal to have taken place.

1. I did not understand Mr Triaca to be submitting that the estimated cost of plumbing or drainage work to alleviate the flooding problem could not be economic loss within the meaning of s 16(2), but if I did misunderstand and that submission is being made, I reject it. I see no reason why in principle such a cost could not be economic loss in the relevant sense. For example, the Tribunal has regarded as economic loss, within the meaning of s 16(2), the cost of investigation and inspection of the structural effects of flooding on a house property.[71]
2. I do, however, accept the submission that the Woollards have failed to prove that the works proposed in the Piping Hot Plumbing Pty Ltd quotation will probably remedy any flooding of lot 2 and so have failed to prove that they will suffer economic loss in the sum claimed or in any sum.
3. Mr Wenning's sworn evidence, verifying his report, was that those proposed works would not satisfactorily intercept all water that might flow onto lot 2. I consider that I should accept, and I do accept, his evidence on the point in preference to the assertion in the quotation by a person who did not give evidence. It is true that Mr Wenning did not say that the proposed works would be of no use at all; he said that they would 'partially' intercept some water and would intercept that water before it got to the existing stormwater pit within lot 2. It is also true that Mr Wenning did not propose any alternative plumbing or drainage solution, but it is not surprising that he did not, because he was expressing a view that the flow of water onto lot 2 has been reasonable all along.
4. The position, therefore, is that while I consider that some remedial action is required to alleviate the problem of an excessive flow of water onto lot 2, and that the Woollards will probably incur economic loss in taking that remedial action, I do not accept that the particular remedial action that the Woollards have proposed will probably alleviate the problem; the Woollards have not proved that. There was no other evidence of what remedial action would probably alleviate the problem, and so no evidence of the cost of appropriate remedial action.
5. This is not the kind of case in which it is permissible to make an assessment of damages by way of guesswork. The nature of the alleged economic loss - the cost of remedial action - is such that it is readily quantifiable once there has been proof of what the appropriate remedial action is; but there has been no such proof. 'A plaintiff claiming damages must prove his case. To justify an award of substantial damages he must satisfy the court both as to the fact of damage and as to its amount. If he satisfies the court on neither, his action will fail, or at the most he will be awarded nominal damages where a right has been infringed'.[72] Only where the nature of the alleged damage is such that the assessment of damages will really be a matter of guesswork is it permissible to make a guess at what a fair award of damages would be. Because the cause of action under s 16(2) of the Water Act is a statutory cause of action that has the occurrence of damage or economic loss as its gist, the awarding of nominal damages is not permissible either.[73] The consequence is that the Water Act claim will be dismissed.

1. The orders made in one or other of the two proceedings should deal with the following matters:

(a) There should be a declaration that the wings of the square are common property.

(b) Mr and Mrs Miglas should be ordered to remove from the wings the barricades which obstruct them, but nothing in the order should require them to move the feet of the hopper.

(c) The owners corporation should be ordered to lodge with the Registrar of Titles another amending plan of subdivision which:

(i) describes the common property, and the boundaries between lot 3 and the common property, in the same way as I have determined they should be described; and

(ii) removes any reference to upper and lower boundaries to any of the lots.

(d) All other claims, including the Water Act claim, should be dismissed.

1. In his written submission Mr Rimmer for the Woollards stated that his client wished to be heard upon the form of any orders proposed in either proceeding. So did Mr Triaca for Mr and Mrs Miglas in his written submission. I have not attempted, therefore, to draft any proposed orders. Instead, I shall leave it to the parties to prepare minutes of the orders that they seek in accordance with these reasons for decision, and there will be a directions hearing during which the minutes may be submitted.
2. The parties may see fit to ask me to make a different order from the one numbered (c) in paragraph 170. One obvious and sensible solution to the difficulty that the feet of the hopper are on common property would be for the parties to agree that the land should be subdivided further so that the part on which the feet stand becomes a small new lot and that the owners corporation should transfer that small new lot to Mr and Mrs Miglas for a modest consideration. If the parties were so to agree, the amending plan that they would be asking me to order the owners corporation to lodge would be in accordance with that agreement rather than in accordance with these reasons.

[1] The plan of subdivision was registered under the Strata Titles Act 1967, so the individual parcels of land (other than common property) shown on the plan were called units, as provided for in that Act.

[2] The amended plan was registered under the Subdivision Act 1988, so the individual parcels of land (other than common property) shown on the amended plan were called lots, as provided for in that Act.

[3] Section 162 defines 'an owners corporation dispute' in such a way that it includes a dispute or matter relating to an alleged breach of the rules of the owners corporation. The model rules set out in Schedule 2 of the Owners Corporations Regulations 2007 prohibit a lot owner or occupier from obstructing the lawful use and enjoyment of the common property by any person entitled to use the common property. There was no dispute that the rules of the owners corporation involved in this proceeding are the model rules.

[4] Section 19 of the Water Act provides that the Tribunal has jurisdiction in relation to all causes of action arising under s 16 (amongst others).

[5] The Tribunal book was received as Exhibits H and 5. Mr and Mrs Miglas agreed that all of the documents in the Tribunal book that were referred to in evidence could be treated as part of the evidence, but did not agree that all other documents in the Tribunal book were necessarily part of the evidence. I do not think that there is any dispute that each document in the Tribunal book to which I refer in these reasons became part of the evidence by virtue of the tendering and receipt of the Tribunal book.

[6] Certificate of Title volume 9692 folio 802.

[10] Sheet 3 of the 1988 plan (Tribunal book p 133) contained a schedule of unit entitlement and unit liability. It specified that unit 1 had 520 points out of 720 and that unit 2 had 200 points out of 720. In these two proceedings nothing turns upon the difference in unit entitlement or upon what became lot entitlement for lot 2 and for other lots.

[11] Subdivision Act 1988 Schedule 2 clause 2(1)(a), (c) and (d).

[12] Subdivision Act 1988 s 24(2)(f).

[18] Subdivision Act Schedule 2 clause 3(2).

[19] In 2005 the section of the Subdivision Act which so provided was s 28(d) and (e). Following amendment to the Act in 2006 the sections which now so provide are ss 30(1)(a) and 31.

[21] See footnotes 12, 18 and 19 above.

[28] There was no evidence of who prepared the documents, but they appear to have been prepared by someone with legal knowledge or clerical skill, or with both.

[31] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 180-181.

[32] The Amended Points of Claim in proceeding OC2345/2014 made those allegations in paragraphs 10-13. The Tribunal book pp 27-46 included the Amended Points of Claim.

[34] Tribunal book pp 184-248, especially p 215.

[35] (1866) LR 1 HL 129.

[36] (1866) LR 1 HL 129 at 140-141.

[37] Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84 at 103, per Robert Goff J.

[38] (1866) LR 1 HL 129 at 170-171.

[40] [1982] QB 133 at 151-152.

[43] Inwards v Baker [1965] EWCA Civ 4; [1965] 2 QB 29 at 37.

[44] ER Ives Investments Ltd v High [1966] EWCA Civ 1; [1967] 2 QB 379.

[45] [1967] 1 QB 379 at 392.

[46] [1966] EWCA Civ 1; [1967] 2 QB 379 at 404.

[47] Meagher, Gummow & Lehane's Equity Doctrines & Remedies, 5th ed, (2015), para [17-130].

[48] Mr Rimmer's submission dated 7 August 2015, especially paragraph 24, but also paragraphs 4(a), (c) and (d), 16 and 22.

[49] Mr Triaca's submission dated 7 August 2015, paragraphs 60 and 67.

[50] Walker & Sopov v Registrar of Titles [2001] VSC 354 at [47].

[51] [2008] VSCA 118; (2008) 20 VR 362 at 374. The other members of the Court of Appeal agreed with the reasons of Dodds-Streeton JA for dismissing the appeal.

[52] Owners Corporations Act 2006 s 139(2).

[53] Owners Corporations Act 2006 ss 162, 165(1)(a).

[55] Subdivision Act s 32(c), s 34D(1)(a), (2). See paragraphs 21 and 22 above.

[57] Tribunal book pp 263-266, especially p 264.

[59] [2001] VCAT 1445.

[60] [2013] VCAT 1748.

[61] [2013] VCAT 1748 at [15].

[62] [2013] VCAT 1748 at [16], where the Senior Member cited a passage from the Trycala decision, [2001] VCAT 1445 at [14]. Another decision that Mr Triaca cited, Yarra Valley Water Ltd v Henley Arch Pty Ltd [2009] VCAT 504, can be distinguished in the same way. An occupier of land escaped liability for the consequence of its independent contractor, engaged to install a tree-root barrier, having broken a sewerage pipe and caused a blockage. The breaking of the pipe was not something that the occupier had engaged or instructed the contractor to do.

[68] [1998] VSC 157 at [25], per Balmford J.

[71] Kopitschinski v Song [2007] VCAT 1958.

[72] McGregor on Damages, 14th edition, paragraph [260] cited with approval in J.L.W. (Vic) Pty Ltd v Tsiloglou [1994] VicRp 16; [1994] 1 VR 237 at 241 (per Brooking JA, with whom the other members of the Court of Appeal agreed).

[73] J.L.W. (Vic) Pty Ltd v Tsiloglou [1999] 1 VR 237 (statutory cause of action under s 82(1) of the Trade Practices Act 1974).