List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss 16, 17, 18, 82 and 86, and part 4

Civil Law (Sale of Residential Property) Act 2003, s 9

Unit Titles Act 2001, ss 18, 123 and 125

List of Cases: Amanda Levet and Bruce Levet v. Moira Dalla [2012] ACTSC 23

Belgrove v. Eldridge [1954] HCA 36

[2007] HCA 22

Garry O'Donnell v. Environment Protection Authority [2012] ACTSC140

Levet and Levet & Dalla and the owners Corporation of units plan 2165 [2011] ACAT 20

Maloney v. New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161

Stollery v. The Greyhound Racing Control Board [1972] HCA 53; [1972] 128 CLR 509

Tabcorp Holdings Ltd v. Bowen Investments Pty Ltd [2009] HCA 8

Yared v. Glenhurst Gardens [2012] NSWSC 11

List of Texts/Papers: JRS Forbes, Justice in Tribunals, The Federation Press, 3rd edition 2010

Appeal Tribunal: Mr W.G Stefaniak - Appeal President

APPEAL TRIBUNAL: Mr W.G Stefaniak - Appeal President

The decision of the tribunal of 22 February 2013 is confirmed.

1. This is an appeal against the order of Senior Member Anforth in proceedings number XT 915 of 2010. The order was dated 22 February 2013. The order was that the appellants were to pay to the respondent the sum of $12,287 within 28 days of the date of the order. There were no other or residual obligations on the appellants as a result of the order, other than the payment of money.

2. The matter has had an extensive history in the tribunal and before the Master of the Supreme Court. The appellants commenced proceedings against the respondent on 29 June 2010. The respondent filed a cross-claim on 23 August 2010. On 21 September 2010, the appellants filed an amended application that joined the owners corporation as second respondent. The proceedings were instituted under the provisions of the Unit Titles Act 2001 of the ACT ("Unit Titles Act") [1]. The appellants and the respondent were at all relevant times the owners of the only two units in the units plan number 2165.

1. The complaint by the appellants against the respondent in the original proceedings included a requirement that the respondent ensure that the wall of her garage, which supported soil from the appellants' unit, be maintained in good repair and that an engineer's or builder's certificate attesting that the walls were in a good state of repair was to be provided to the owners corporation. This issue of the damage to, or support by, the garage wall remained the substantial issue between the parties through all the proceedings.
2. The respondent's cross-claim dealt with a number of matters in the originating proceedings by the appellants, but also stated that the garage wall was situated wholly within her property and did not appear to be common property. The respondent made the claim that the appellants should clear their garden beds of the area encroaching on her land and repair the damage caused to her garage walls. The respondent also dealt with the other matters raised by the originating application.
3. There were a number of other issues raised in the original proceedings but which were not the subject of, or considered in, this appeal other than a claim by the appellants for the right to drain water from their swimming pool through the land of the respondent. That issue was not one of the matters in the appeal notice and does not need a decision by this tribunal.

1. Senior Member Anforth gave a decision and made an order on 15 March 2011, in the matter of Levet and Levet & Dalla and the owners Corporation of units plan 2165 [2011] ACAT 20. In these reasons, this decision is referred to as "Anforth one". In that decision, Senior Member Anforth set out in detail the various claims of the parties, the geography of the two properties and the relationship between the parties themselves. It is not necessary to repeat those matters, but they provide the background to the decision of this tribunal.

7. The decision in Anforth one did not achieve the appellants' aim of requiring the respondent to provide lateral support for their land. As a result of enquiries made in the proceedings, it was ascertained that the boundary between the two units was not the garage wall, but was situated at a variable (although small) distance from the garage wall on the appellants' side. Accordingly, there was an encroachment on to the respondent's land and up against her garage wall by soil from the appellants. Senior Member Anforth found that water travelling through the soil and lying against the garage wall had caused it to deteriorate[2]. The full terms of the order made in Anforth one are set out in annexure "A" to these reasons.

1. The appellants appealed the decision in Anforth one. The appeal division of the tribunal was comprised by the Appeal President and the senior member hearing this appeal. Within the appeal, the appellants argued amongst other matters that the claim of damage to the respondent should be properly classified as a nuisance application or a trespass application pursuant to section 16 of the ACT Civil and Administrative Tribunal Act 2008 ("ACAT Act").
2. Section 18 of the ACAT Act provides as follows:
   1. $10 000 limit on civil dispute applications

(1) A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal's jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement - amounts over $10 000) allows the application to be made.

(a) civil dispute applications claiming amounts of not more than $10 000; or

(b) in relation to debt declarations - applications for declarations for debts of not more than $10 000.

Note For working out an amount to decide whether the tribunal has jurisdiction - see s 19.

(a) an application for a common boundaries determination; or

1. Section 16 of the ACAT Act defines the meaning of "civil dispute" as follows:
   1. Meaning of civil dispute and civil dispute application - Act

civil dispute means a dispute in relation to which a civil dispute application may be made.

civil dispute application means an application that consists of 1 or more of the following applications:

(h) an application for a common boundaries determination;

(i) an application for an order under the Australian Consumer Law (ACT);

(j) an application stated to be a civil dispute application in an authorising law.

1. Section 17 of the ACAT Act provides as follows:

A person may make a civil dispute application to the tribunal.

1. The ACAT Act therefore limits the amount of damages that may be made in a civil dispute application where that application is instituted under the provisions in the ACAT Act. It does not say that the limit should be applied to damages that may be awarded in any other matter before the tribunal where it has been originated under any other enabling legislation, whether or not the matter arising under that other enabling legislation could be classified as a matter of the type described in section 16 (a) - (j) of the ACAT Act. The Unit Titles Act does not specify that applications under that act are "civil dispute applications" within the meaning of section 16(j) of the ACAT Act.
2. Senior Member Anforth referred to this matter in the decision in Anforth one as follows:

"The Applicants (appellants) adverted to some possible jurisdictional impediments to the Tribunal hearing the present matter, but did not particularise any such objections and did not press them. The Tribunal is not aware of any jurisdictional impediments."

"The Tribunal is satisfied that the present dispute falls within both items 1 and 3 of section 123 of the Unit Titles Act 2001 (the Act) and is thus a dispute over which the Tribunal has jurisdiction." [3].

1. He then went on to determine that the tribunal had power to make an order of the kind set out in section 125 of the Unit Titles Act.
2. At the appeal hearing from Anforth one, the matter of jurisdiction was raised before the appeal tribunal. Oral reasons were given for the dismissal of the appeal, including a rejection of the argument that the tribunal had no jurisdiction to make an order of the nature in Anforth one, because of the jurisdictional limit in part 4 of the ACAT Act.

1. The appellants applied for leave to appeal to the Supreme Court from the appeal tribunal's decision. Section 86 of the ACAT Act provides that a party to an application may appeal to the Supreme Court on a question of fact or law from a decision of the appeal tribunal. However, the appeal may only be brought with the Court's leave. The leave application was heard before Master Harper. On 10 February 2012, he made an order dismissing the application for leave and ordering that the applicants pay the respondent's costs. The decision of the Master is reported as Amanda Levet and Bruce Levet v. Moira Dalla [2012] ACTSC 23. It is referred to in these reasons as "the Master's decision."
2. It is not necessary to set out in detail the reasons that the Master gave for rejecting the appeal, but he noted that Senior Member Anforth in reaching the decision in Anforth one had found as a fact that damage to the garage walls had been caused by water seepage from a buildup of soil abutting the exterior side of the wall, and made the same finding in relation to the log retaining wall on the boundary between the properties. Senior Member Anforth noted that the use of the garage wall as a retaining wall was entirely for the benefit of the appellants with no corresponding benefit to the respondent[4].
3. The Master determined that this was not a case in which leave to appeal to the Supreme Court should be granted for the reasons set out in the decision[5]. The matter then returned to Senior Member Anforth for determination of the compensation and the timing for compliance in accordance with the original order made by him as varied by the appeal tribunal.
4. In the proceedings on this appeal to the Master no transcript of the application for leave to appeal to the Supreme Court was available to the appeal tribunal, nor was a copy of the application itself filed with the tribunal. In this appeal hearing, Mr Levet indicated that he had not been present at the application for leave proceedings, and was therefore unable to advise the tribunal on the arguments that counsel had raised[6]. Accordingly, this tribunal is left with only the reasoning of the Master for rejecting the application.
5. The Master noted that the appeal tribunal had dealt in its reasons with two other issues which had been raised on appeal, but apparently not at first instance. One related to the effect of section 18 (2) of the Unit Titles Act. The appeal tribunal had rejected that submission and it was not pursued in the draft notice of appeal to the Supreme Court being considered by the Master[7].
6. The other issue was as to the jurisdiction of the tribunal where the amount at issue exceeded $10,000. In relation to that the Master in paragraph 26 said as follows:

"The other issue was as to the jurisdiction of the Tribunal where the amount at issue exceeded $10,000. The jurisdiction of the Tribunal in relation to civil disputes under part 4 of the ACT Civil and Administrative Tribunal Act is limited to that figure. Effectively what was the small claims jurisdiction of the Magistrates Court has been removed from the court and conferred on the Tribunal. Part 4 has no application to applications to the Tribunal in the exercise of jurisdiction conferred by other legislation, such as, in the present case, the Unit Titles Act. The appeals tribunal correctly rejected the argument and it is not pursued in the proposed appeal to this court."

1. In refusing leave to appeal, the Master also noted as follows (referring to the decision in Anforth one):

"This is not a case where the Tribunal can be seen to have arrived at findings of fact which were incorrect, or not available to it on the materials before it."[8].

1. The Master also noted that the factors which influenced him in coming to the conclusion that appeal should not be granted included the following:

" that there is no grey area of applicable law, which needs to be resolved in the interests of the wider community.

that no obvious error was made by the Tribunal, either at first instance or on internal review as to the findings of fact or as to the applicable law." [9].

1. The matter was remitted to the tribunal for further hearing on the question of damages, in accordance with paragraph 7 of the decision of the appeal tribunal decision referred to in paragraph 15 above. The matter was again heard before Senior Member Anforth, and on 22 February 2013 the order the subject of this appeal was made. The reasons for decision issued on the same date are referred to in these reasons as "Anforth two."
2. By the time of the final hearing in Anforth two, the appellants had excavated their encroaching soil and constructed a retaining log wall along the fence line parallel to the garage wall at a cost of $9,460.00. The appellants had replaced the previous log retaining wall, parallel to the driveway at a cost of $8,910.00. Both walls were of a continuous log construction built at the same time by the same builder[10].
3. Senior Member Anforth set out in paragraph 22 of Anforth two the outstanding issues that were dealt with at the final hearing of the matter. On 19 November 2012, after the hearing, the appellants filed a further supplementary submission directed to the jurisdictional issue and other matters.
4. On 19 November 2012, the matter was again heard before Senior Member Anforth. The appellants sought to re-argue the jurisdictional issue referred to in paragraph 8, although Mr Levet acknowledged that the particular issue was mentioned only as obiter in the Supreme Court, but was "not run". He acknowledged that the argument was

"ultimately not put or run because at that time - and the reason it wasn't run was that at that stage the cost of complying with the orders haven't crystallised; it is now crystallised."[11].

1. The other matters leading to the decision in Anforth two were:

(a) whether there had been malicious damage to the garage wall by the respondent or some other person as a result of which there was increased damage which the applicants (i.e. appellants) should not have to compensate for;

(b) the cost of repairing the garage wall and whether there should be any set off of the "new for old factor";

(c) whether the log retaining wall, parallel to the driveway should have had the vertical supports facing the appellants' side and not the respondent's side;

(d) whether the respondent had agreed to the cost of the log retaining wall; and

(e) the claim by the respondent that the new log wall leaked.

1. Having considered all of the arguments of the parties, Senior Member Anforth made the decision that is the subject of this appeal.

1. The appellants lodged an appeal against the decision in Anforth two by a notice of appeal dated 22 March 2013. The notice gave five grounds of appeal.
2. The first ground of appeal was that the tribunal had erred in awarding relief to the respondent in excess of the monetary jurisdictional limits imposed by section 18 of the ACAT Act.
3. The second ground of appeal was that the tribunal had erred in failing to apportion the damage to the garage so as to limit it to the damage which was occasioned either from
   • (a) 12 October 2009, being the date on which the respondent first notified the appellants that she did not consent to the continuation of the nuisance; alternatively
   • (b) 25 January 2006, being the date on which the respondent was registered as the owner of unit two; alternatively
   • (c) 27 September 2002, being the date on which separate titles were issued in respect of the properties now owned by the appellants and the respondent respectively.

1. The third ground of appeal was that the tribunal had erred in not applying a set off for the "new for old factor" in awarding compensation for damage to the respondent's garage wall.
2. The fourth ground of appeal was that the tribunal had erred in making the appellants liable for the cost of rectifying damage maliciously inflicted on the garage wall by a person or persons unknown.
3. The fifth ground of appeal was that the tribunal had erred in making numerous findings of fact which were not supported by the evidence. Those findings were particularised over some 19 pages.
4. Annexed to the notice of appeal were two reports dated 20 March 2013 and 21 March 2013 from a project engineer commenting on the drainage of the area, adjacent to the new retaining wall, and a report from an engineer commenting on an earlier report produced to the tribunal from an engineer engaged by the respondent. Just because these additional reports were annexed to the notice of appeal does not mean that they have been admitted as evidence. The usual procedure would be for those reports to be annexed to the affidavit of a party, and for an application for those materials to be admitted to be made to the tribunal.

1. Section 82 of the ACAT Act allows the tribunal as it considers appropriate to deal with an appeal as a new application or as a review of all or part of the original decision. In this case, the tribunal determined that the matter should be heard as a review of that part of the original decision which was identified in the notice of appeal. The appeal should be regarded as "an appeal in the strict sense" within the meaning used by her Honour Justice Penfold in the matter of Garry O'Donnell v. Environment Protection Authority[12]: that is, the tribunal should determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Such a decision did not involve coming to a conclusion that the appeal tribunal may have taken a different view from the member originally hearing the matter, considering the weight of the evidence on either side. It would involve the appeal tribunal determining that the decision of the original member, having regard to the evidence, was so unreasonable that no reasonable decision maker could have come to that conclusion. Where the case involves an assessment of considerable factual and expert opinion on the causes of damage to a building, the appeal tribunal would not lightly interfere with the decision that the original member had come to.
2. The tribunal came to the view that this was the appropriate way to proceed because the transcript of the hearings before Senior Member Anforth indicated that there had been a substantial amount of technical evidence about the condition of the garage and the encroachment by the soil of the appellants, and that it was not appropriate for further evidence to be received in circumstances where that could have been given at the hearing.
3. At the directions hearing on 5 April 2013, the tribunal did admit from the respondent a certificate of occupancy for additions undertaken in May 2002. The certificate was apparently related to a matter which had been raised before Senior Member Anforth. The appellants did not object to the introduction of that certificate[13]. In any event, it was not referred to in arguments on the matter when the hearing of the appeal was conducted, and forms no part of the reasoning in this decision.

40. The two additional reports annexed to the notice of appeal were excluded from admission on the basis that they were additional evidence beyond that considered by Senior Member Anforth in Anforth two[14].

1. The hearing of the appeal was conducted on 15 May 2013. At the hearing, Mr Levet represented both of the appellants. He sought to introduce an affidavit of Ms Levet, containing additional evidence.
2. The respondent had sought to sell her property, and the appellants had obtained a copy of the contract for sale, including the prescribed building report. The affidavit of Ms Levet sought to introduce that contract for sale and, in particular, the building report annexed to it, as evidence of the respondent's representation of the structural soundness of the garage. The affidavit also sought to re-introduce engineering reports which had previously been tendered before the tribunal.
3. The appellant sought to tender the building contract as evidence of an acceptance by the respondent that the garage was in a sound structural condition. That submission misconceived the nature of building reports in a conveyancing transaction in the territory.
4. Under the provisions of the Civil Law (Sale of Residential Property) Act 2003, section 9 and the regulations made under the Act, in preparing a contract of sale the owner is required to obtain a report from an independent building consultant setting out the expert's view on the state of the property. It is not a representation by the owner, and the owner has no right to review or alter the report. The only reference to the report in the standard contract of sale is in clause 7.1.4, where the seller warrants that the seller is not aware of any material change in the matters disclosed in the required documents (which includes the building report). The seller does not warrant the accuracy of the report in the contract of sale, and it is not a representation by the seller. Accordingly, the building report in the contract was not a representation by the owner.
5. The additional matters sought to be introduced by the affidavit and particularised in clause 5 (a) - (d) were not accepted on the basis that they were acknowledged to have been before the tribunal and were matters that had been considered by Senior Member Anforth.
6. In relation to the matter referred to in paragraph 6, this was not accepted on the basis that it was not before the original hearing, and was therefore fresh evidence. The material was a comment from an engineer on a report provided to the tribunal some six months before. There was some discussion as to the reason for the delay in the appellants' seeing the material, which may have been because of delays in the appellants' solicitor's office. After consideration, the tribunal decided not to admit the additional affidavit[15].

1. There was extensive argument before the appeal tribunal about whether it was bound by the comments of Master Harper in the Master's decision on the jurisdictional issue. Mr Levet sought to argue that these comments were obiter dicta, or only incidental to the decision. The argument was that the tribunal could reconsider the matter, and determine that the monetary limitation in part 4 of the ACAT Act still limited the extent to which the tribunal could order damages on a case of this nature under the Unit Titles Act to the sum of $10,000.
2. In the hearing the tribunal expressed quite strongly its view that as the Master had dealt with this jurisdictional issue in his reasons, then on the normal principles of superior courts binding lower courts and tribunals, it was not open to the tribunal to diverge from his view as a matter of law[16].
3. Further, the tribunal had previously formed the opinion about the point in the earlier appeal proceedings. The decision of the Master confirmed the view that the tribunal had taken as a matter of statutory interpretation of both the Unit Titles Act and the ACAT Act, and the tribunal remains of that view. Where jurisdiction to consider a matter is conferred by legislation other than the ACAT Act, then any limitation on the jurisdiction of the tribunal must be found in that enabling legislation. There is nothing in the Unit Titles Act to suggest that the monetary limitation is that set out in part 4 of the ACAT Act, either generally on by reference to section 16(j) of the ACAT Act.
4. The appellants agreed that the dispute the subject of this appeal was "an ACAT dispute" within the definition of section 123 of the Unit Titles Act[17]. The appellants referred to section 125(1) of that Act, and in particular paragraph (d). This paragraph enables the tribunal to make an order "requiring a person to pay the territory or someone else an amount of not more than $1,000." While the appellants argued that this imposed a limit on any damages payable under any application under this Act, the tribunal considers that it should not be taken as a limit on damages payable between parties to an application.
5. It may be that there are cases where in the course of a dispute under the Unit Titles Act, it is appropriate to direct payment to a third party as a result of the actions of one of the parties to the hearing. If it was intended to apply only to the parties, it is hard to see why the reference to the territory would have been included. That indicates that it is directed towards payments to third parties.
6. Had the provision intended to limit any amounts payable under any application under the Unit Titles Act, then the tribunal considers that it would have said so. To impose a limit of $1,000 in actions, for example, to recover unpaid levies from a unit owner that stretch back many years would be counter to the usual obligations of a unit holder, and could have a very serious effect on the body corporate and the other unit holders. The limitation in this paragraph does allow for the compensation of a third party who may have been damaged by the actions of the unit holder, but it is not to be taken to limit the amounts payable between the parties to the action itself. Further, to read the section in that way would deny the discretion conferred on the tribunal by sections 125 (2) and (3).
7. The first ground of appeal has no merit and is rejected.
8. The tribunal sees no basis for agreeing to the remedy in paragraph 1(d) of the notice of appeal that the appellants seek under the heading "What Remedy You Are Seeking". This is a request that the tribunal refer the matter to the Supreme Court for determination of the jurisdictional question raised on the first ground of the appeal. The matter has been considered at length, the Master has expressed a clear view on the matter with which the tribunal respectfully agrees, the appellants did not avail themselves of an option that they had to appeal the Master's decision, and the monetary sum involved is not substantial. The matter will not be referred on the tribunal's own motion.

1. The second ground of appeal raised the issue of the period of time over which the damage to the garage may have occurred, and whether the appellants should be responsible for all of that. As indicated in paragraph 32 above, the appellants propose three alternative dates as the dates from which damage to the garage should be calculated. Those alternatives, and much of the argument before the tribunal, involved the question of whether at a particular time the respondent had withdrawn the consent (however that is implied) to the encroachment of the soil over the boundary and against her garage wall.
2. There was no clear evidence as to when the soil was originally placed against the garage wall, although it may be reasonably implied that it was as a result of the construction of the swimming pool on the appellants' land by the previous owner. In argument, the respondent maintained that as a result of the appellant planting shrubs along the garage wall the amount of water in the soil would have increased, increasing the damage. This must be speculation, in the absence of any clear evidence of dates when any planting took place.
3. If one assumes that an encroachment over the boundary occurred when both blocks were in the ownership of the original owner of the land and before they were separately transferred to the appellants and the respondent (which seems likely) then at that time there would be no actionable nuisance by the owner against herself. Further, if everyone had been aware of the situation of the encroachment and the respondent had been asked by the appellants whether she agreed to the continuation of the encroachment and the prospect of damage to her garage wall, in a way that would have made full disclosure to her and to which she consented with proper understanding of the issues, then this ground of appeal may have some force.
4. The difficulty is that neither party was aware of the encroachment when they acquired their units. It was the appellants who through their original action first raised the prospect that there was damage to the garage wall which may fail to provide what they claimed as a right of lateral support.
5. To follow these speculations in the absence of any evidence is not a fruitful process. One may as well raise the question of whether either the appellants or the respondent should have had an accurate survey of the unit boundaries undertaken before they purchased the units, and then turned their minds to the situation of the encroachment. This does not appear to have happened. We must deal with the situation as it was when the action commenced.
6. The situation is much more akin to one where the tree on a person's property falls onto the property of their neighbour. The tree and the ground around it may have been weakened for years by digging or excessive watering on the part of the person on whose land it stood, or their predecessor in title. However, once the tree falls and the damage to the neighbour occurs, it is difficult to see that the neighbour on whose tree the land stood should not compensate the other because of the actions of some predecessor in title. In that sense, the person who acquires the land takes it with its faults whether those are undertaken by them or as a result of previous owners.
7. In Anforth one, Senior Member Anforth referred to the decision in Yared v. Glenhurst Gardens[18]. In that case, the plaintiff sued for damages resulting from the collapse of a wall and the entry of soil from an uphill property onto the plaintiff's land. The defendant was found liable for a failure to adequately retain its own soil on its own land, resulting in damages payable. The essence of the liability arose from the encroachment by the defendant's soil through the collapsed wall. While the defendant in that case had contributed to the damage by placing additional soil against the land, there was no suggestion that had previous owners of the property undertaken some or all of the placing of the soil, or carried on any other activity increasing the likelihood of the soil collapsing down the hill, that the defendant could have avoided or reduced his liability. The liability arose from the encroachment itself.
8. In the present case, Senior Member Anforth has found that the encroachment of soil and water onto the respondent's land has caused her damage. Whether the damage was caused partly during the time prior to the appellant's ownership of the land is not the issue: the appellants take the land as they find it with a continuing encroachment, and it is the encroachment that has caused the damage.
9. The second ground of appeal is rejected.

1. The third ground of appeal was one that questioned whether Senior Member Anforth should have allowed a set off for the "new for old factor" and whether the tribunal's order was "necessary and reasonable" in relation to the garage wall. The principles applying to this argument rely on the decision of Belgrove v. Eldridge[19].
2. There was no argument put that, apart from the damage caused to the side and rear wall by the encroachment of soil and water damage, the garage was otherwise unfit for use. It is an old structure, and has continued in use beyond the period that one might normally expect for such a structure, but there was no suggestion that it was not functional for the purpose. Senior Member Anforth referred to the contrast between the wall adjacent to the appellants' premises, and the damage to the concrete wall which was reported by the appellants' engineers[20] with the much better condition of the wall on the other side of the garage[21].
3. Belgrove v. Eldridge was a case involving a claim for rectification of a building where it had not been constructed in accordance with the building contract. In that case, the High Court held that the proper measure of damages was said to be, prime facie, rectification provided that rectification is both a "necessary" and "reasonable" measure. The issue was further explored in the later High Court case of Tabcorp Holdings Ltd v. Bowen Investments Pty Ltd [22]involving a claim for rectification work to a building at the end of the tenancy.
4. Where the appellants' argument falls down on this ground is that in this case there was no order for rectification. Senior Member Anforth did not order any form of building work on the garage itself. Once the encroaching soil had been removed and appropriate drainage provided in the gap between the appellants' and the respondent's improvements, then all that was ordered was the payment of a sum of money to compensate the respondent for the damage done to her property by the encroachment over the years.
5. It should be noted that in Anforth two, Senior Member Anforth considered the alternative claims of rectifying the garage wall and the question of an unintentional gain to the respondent. Having considered all of the evidence provided by engineers' and builders' reports, and had an inspection of the site, Senior Member Anforth determined that the damage to the wall was such that an amount should be awarded that took account of the cost of rectifying the garage walls and draining the area between the garage wall and the appellants' property. The tribunal considers that this approach was a proper one for him to undertake, and that no error has been shown in his process of decision[23].
6. The third ground of appeal is rejected.

1. In Anforth one, Senior Member Anforth had ordered that the encroaching soil be removed by the appellants and that a new wall be constructed on their side of the boundary to retain their soil on their property. This was done. During the course of removing the soil, one of the workmen engaged by the appellants had accidentally knocked a hole in the wall of the garage. This is understandable where the workmen was operating in a narrow trench. One may also surmise that although the workmen was being careful, even an inadvertent knock to the concrete slab wall of the garage in its weakened state enabled the hole to be punched through the wall. This reflects the deterioration that had occurred.
2. The evidence was that at a later date, some person unknown appears to have knocked several holes in the wall of the garage, causing some scatter of broken pieces into the garage itself. The matter was reported to the police, but there is no evidence as to who did the damage. The respondent denied that she or anyone on her part had done it.
3. The appellants claimed that to the extent that this damage increased their potential liability, they should not be accountable for it. It is impossible to say to what extent the damage suffered by the respondent was increased by these holes alone, as against the weakened state of the garage wall which made it vulnerable to the hole made by the appellants' workmen. There was no evidence as to how the consequence of that damage should be assessed, as against the damage caused by the encroachment.
4. In the totality of the matter, and the need for rectification of the side and rear walls of the garage as determined by Senior Member Anforth, his failure to specifically refer to this in determining the damages payable is not a ground on which an appeal should be upheld.
5. The fourth ground of appeal is rejected.

1. The last ground of appeal was that Senior Member Anforth erred in making numerous findings of fact which were not supported by the evidence. These were particularised in some 20 pages of comment and detail annexed to the notice of appeal. The annexure set out a number of comments made in the decision and referred to and also extracted a number of comments by the Senior Member in the hearing, which the appellants disputed. The annexure also set out detailed argument as to why the appellants maintained that the decision made by the Senior Member was against what was in their view the weight of the engineering and building evidence about the problem.
2. It is relevant to remember the history of the matter. The Senior Member in his decision in Anforth one set out his views of the evidence which had been provided and his assessment of it. Similarly, in Anforth two there was a lot of debate between the Senior Member and Mr Levet for the appellants about the weight to be placed on various reports, and the inferences which should be drawn about the likely life of the building, the prospects for its repair and the likely cost. To some extent, these discussions about the garage also involved the costs for repairing the log retaining wall and fence in front of the garage. This work was not the subject of serious argument, being on the boundary and having been accounted for in the order under appeal.
3. The difficulty with an appeal point that relies on extracting individual sentences and points of exchange from the transcript is that none of them can be regarded in isolation. It is common in court and tribunals for the determining body to raise propositions and put situations to counsel for comment. These cannot necessarily be taken to be the final view of the tribunal, which is reflected in its decision.
4. The appellants must persuade this tribunal that, looked at as a whole, Senior Member Anforth so disregarded significant pieces of evidence or drew such inferences and conclusions that the ultimate decision made was not one that a reasonable tribunal member could make in all the circumstances. In a matter of this complexity, running over two hearings before the Senior Member and then being the subject of appeal both to the appeal tribunal and to the Master, the Senior Member was well acquainted with the evidence and the arguments. In this appeal, there was no extensive argument about the weight that should be given to any one of the factors detailed in appeal ground 5 as against any of the others, and this tribunal is left to try and interpret the annexure as against the transcript and the evidence that had been provided.
5. As indicated above, ultimately, the tribunal speaks through its decision. Comments extracted from the transcript are of less significance in determining whether there has been a serious divergence from the obligation to act reasonably and in accordance with the evidence.
6. As indicated in paragraph 78, it is not the role of this appeal tribunal to simply determine whether it would have preferred another outcome to that in the decision appealed from. The appellants' obligation is to satisfy this tribunal that, taken as a whole, the decision of the Senior Member was so unreasonable that it could not stand. This tribunal has had to consider those appeal points as a whole, although it notes that the appellants dispute a number of the conclusions and the way that they are expressed.
7. Having regard to the terms of Anforth two, the transcript that has been provided of that hearing and the argument before this tribunal, the tribunal is not satisfied that the appellants have discharged their onus of proving that the decision below was so unreasonable that it should not stand. Accordingly, this appeal ground is rejected.

1. Following the hearing of the substantive appeal, Mr Levet on behalf of the appellants wrote to the tribunal on the following day requesting that the appeal tribunal members disqualify themselves from further hearing in the matter. The ground given was that there was a reasonable apprehension of bias in the tribunal members. In view of the seriousness of the allegation and the fact that it had not been raised at the tribunal hearing, the matter was relisted for argument on 30 May 2013.
2. It should be noted that the allegation by the appellants was not one of actual bias. The test of whether there is apprehended bias in a tribunal member has been set out in the matter of Stollery v. The Greyhound Racing Control Board[24] and may be summarised as follows: "it is enough that an observer aware of the facts and being a reasonable man could very properly suspect a lack of impartiality or feel a reasonable apprehension that the tribunal might not bring fair and unprejudiced view to the resolution of the question, or that the conclusion will not be altered irrespective of the evidence and arguments put forward."[25].

84. Although a finding of apprehended bias is not necessarily a pejorative claim, it should not be lightly made. A party alleging bias must establish the claim by permissible evidence; mere assertions of suspicion are not enough[26]. A claim of bias and request that the tribunal disqualify itself should be made at the commencement of the hearing or so soon thereafter as the relevant facts are known[27]. The mere fact that a tribunal has decided against a party is no evidence of bias. Expectations of detachment that may be reasonable with respect to courts may be unrealistic where a tribunal or administrative officer is concerned[28].

1. The appellant's letter of 16 May 2013 noted that the tribunal was engaged only in a review of the decision of Senior Member Anforth and that the tribunal made a decision that the expert material that the appellant sought to adduce by annexing to the notice of appeal and in the subsequent affidavit of Ms Levet had not been before the Senior Member. On that basis, it was not admissible. It should be noted that the appellants in their letter do not "cavil with that ruling per se."
2. As a matter of record and as noted previously in these reasons, the tribunal had allowed the respondent at a directions hearing to lodge a notice clarifying the date upon which certain improvements to the property were made. While this was in response to an issue apparently raised in the hearing in Anforth two, it was not referred to in the appeal hearing by way of argument and forms no part of the tribunal's decision.
3. The major point that the appellants rest their argument of apprehended bias upon is that towards the conclusion of the hearing on 16 May 2013, the respondent made a statement about the conduct of the appellants in relation to an auction that the respondent had arranged for a sale of the property.

88. After having sat through the day of legal argument in respect of which the respondent could not have been expected to make any significant contribution (and in which the tribunal in the interests of fairness had tested by a number of questions the arguments of the appellants), the respondent alleged that at the auction which had been arranged for a sale of the property, the appellants engaged a person who was registered as a potential bidder. At a particular point in the auction, that person then made a statement publically about there being legal issues between the parties and what those issues were. The auction then ceased, causing the respondent to incur substantial expense[29].

89. The appellants were offered the opportunity to respond to the comments of the respondent. There then followed a discussion between the members of the tribunal and the appellants that extended over seven or so pages of transcript. Ms Levet and Mr Levet both offered information about what they had done, their wish to get rid of the respondent from the property, and their preparedness to purchase the property if it was to be sold at a "reasonable market value." While at one stage Ms Levet objected to the discussion, asking, "how is this is anyone's business?"[30], the appellants continued to participate in the discussion about their actions in relation to the auction, and the nature of their relationship with the respondent. Beyond the comment of Ms Levet referred to previously, there was no formal objection that the discussion should cease on the ground that it constituted evidence of apprehended bias.

1. It is important to acknowledge that one of the appellants in this matter was Mr Levet, an experienced barrister. He must be taken to be aware of the requirements relating to allegations of apprehended bias. As Glass JA noted in a matter o_f Maloney v. New South Wales National Coursing Association Ltd (No 2)_ in relation to a party who had delayed in raising the claim:

"..He was represented by a qualified legal adviser who, the court is entitled to assume, was fully acquainted with the relevant rights which the plaintiff had. The plaintiff must be taken to have deliberately elected not to object... either because he did not [apprehend bias]...or because he deliberately elected to keep the present allegation in reserve in case he was dissatisfied... he deliberately elected to take his choice... and has [thus] waived any right to object."[31]

1. The letter of 16 May 2013 also referred to a "fair reading of the transcript of yesterday's hearing (taken with the transcript of the earlier directions hearing before you both)." (tribunal's emphasis) as potentially leading a reasonable observer to the conclusion that the tribunal had formed a view before the members came onto the bench. This conclusion was to be drawn because the tribunal had made a procedural decision against the appellants on the basis that the material that they sought to tender post dated the decision of Senior Member Anforth, but it did not apply the same test to the respondent's submission. The appellants also considered that there was an apprehension of bias because the respondent had been allowed to complain about the actions of the appellants' agent at the auction. Instead of refusing the respondent the opportunity to make the statement not only did the tribunal entertain her submission but "entered into the arena and advocated on her behalf."
2. This matter was referred to in paragraphs 89 and 90 above. The tribunal expressed concern about whether this action may have breached the respondent's rights and advised her to get further advice if she wished. The appellants put their point of view at length, as they were entitled to do.
3. The reasons for the exclusion of the material annexed to the notice of appeal and to the affidavit of Ms Levet have been referred to earlier in these reasons for decision. It was not simply that they post dated the decision of Senior Member Anforth. The material was excluded on the grounds that it could not support the proposition sought for by the appellants, or was already before the tribunal. To the extent that there were technical reports postdating the hearing in Anforth two, they were excluded on the basis that they were fresh evidence.
4. The appellants raised a further matter as one that supported their argument that, taken as a whole, a number of matters which individually would not constitute a reasonable apprehension of bias in the tribunal did satisfy that test.
5. In the hearing of 15 May 2013, Senior Member Chenoweth was discussing with Mr Levet the issue of not drawing too fine a distinction between the ratio of a case, and comments that were obiter. The Senior Member referred to the High Court case of Farah Constructions Pty Ltd v. Say-Dee Pty Ltd[32] as one that supported the proposition that he had been putting. The proposition was that inferior courts and tribunals should not disregard propositions from superior courts, whether those propositions be classified as the ratio of the case, or as incidental comment not going to the heart of the case. Senior Member Chenoweth made the comment: "and I have been comforted by that decision."
6. The appellants submitted that this indicated a pre-judgement on the issue that was being debated with Mr Levet.
7. The appellant's argument was that had the Senior Member said: "I am comforted by" rather than using the past tense, then perhaps they would not have been so concerned. They drew an implication from the words used that the mind of this member of the tribunal was closed on that point.
8. The appellants acknowledge that none of these matters that they allege could be regarded as apprehended bias, when taken individually, would justify such a finding.
9. The tribunal does not accept that the submission of reasonable apprehension of bias has been made out. Anything said in the directions hearing that may be taken to give rise to such an apprehension prior to the substantive hearing must be taken to have been waived when not raised at the time or upon the transcript becoming available.
10. The other matters are in the tribunal's view part of the vigorous exchange that takes place when contentious issues are debated with counsel or experienced and legally qualified parties. They cannot amount to a reasonable apprehension of bias in the mind of a properly informed observer, whether taken individually or as a whole. Considering all matters together, the tribunal does not accept that there could be a reasonable apprehension of bias.

1. The tribunal orders that the decision appealed against be confirmed.

CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 915 of 2010

1. The Applicants are to take immediate steps to remove their soil from encroachment on the First Respondent's land
2. The Applicants are to cease using the First Respondent's garage wall and log wall as a retaining wall for the soil in the Applicants' back yard.
3. The Applicants are to take immediate steps to:

1. constrain their soil to their own property; 2. construct an adequate means of retaining their soil retaining wall on their own property and;

1. to provide such lateral support as is necessary for their back yard on their own land.
2. The Applicants are to compensate the First Respondent for the damage caused to the First Respondent's garage and log walls and the Applicants encroachment.
3. The Applicants' application that the First Respondent return the 'overhang' to its previous state, is dismissed
4. The matter is to be relisted for further directions on the quantification of the compensation and the timing for compliance with the orders.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[4] Master's decision - paragraphs 12 and 13

[5] Master's decision - paragraphs 47 and 48

[6] Transcript dated 15 May 2013 - page 24, line 40; paragraph 27 line 3

[9] Master's decision - paragraph 48(c) and (d)

[11] Transcript dated 19 November 2012 - page 38, line 44, and page 39, line 3

[12] [2012] ACTSC 140 - paragraph 49

[13] Transcript dated 5 April 2013 - page 43, line 33

[14] Transcript dated 5 April 2013 - page 30, line 6, and page 33, line 25

[15] Transcript dated 15 May 2013 - page 10, line 37

[16] Transcript dated 15 May 2013 - page 24, line 10, page 28, line 37

[17] Transcript dated 15 May 2013 - page 15, line 31

[18] Anforth one - paragraphs 80 and 89, Yared v Glenhurst Gardens [2002] NSWSC 11

[19] [1954] HCA 36

[20] Northrop Engineers Report dated 15 December 2009 - second comment

[22] [2009] HCA 8

[23] Anforth two, paragraphs 60 - 65 inclusive, 81

[24] [1972] HCA 53; [1972] 128 CLR 509

[25] See JRS Forbes, Justice in Tribunals, The Federation Press, 3rd Edition 2010 ("Forbes") at P. 282

[27] Forbes, Paragraph 15.36, page 303-304

[29] Transcript 15 May 2013, page 93, line 32

[30] Transcript 15 May 2013, page 97, line 25

[31] [1978] NSWLR 161 at 172, quoted in Forbes, paragraph 15.36 page 304

[32] [2007] HCA 22