Dimitropoulos v Wang and Ding

Applicant's submissions

1. The applicant relies on submissions filed on: 1. 12 June 2023, 2. 16 August 2023, 3. 4 October 2023, 4. 16 October 2023

Respondents' submissions

1. The respondents rely on submissions filed on: 1. 2 August 2023, 2. 3 October 2023, 3. 18 September 2023 (handed up at hearing) 4. 3 October 2023, 5. 16 October 2023.
2. The Tribunal has read and considered the submissions. those parts of the submissions that are relevant to the real issues between the parties.
3. The parties' submissions cavil unnecessarily and are repetitive and convoluted. The Tribunal will consider those parts of the submissions that are relevant to the real issues between the parties.

Consideration

1. The consideration of the Remitted Proceedings are informed by the directions of the Appeal Panel and of Deputy President Harrowell. That is, the questions to considered and answered are as follows: 1. Appeal Panel: 1. Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act. 2. If so, what is the proper construction of the Original Orders including: 1. whether the Original Orders require a party (and if so which party) to carry out fencing work; 2. the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence; 3. the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required; 4. whether the fencing works were required to be carried out in accordance with a particular quote or invoice; 1. When did the "required time" for compliance with the Original Orders expire? 2. Whether the appellants failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act. 3. Whether the work carried out by the respondent is the fencing work determined by the Original Orders. 4. Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover. 1. Direction of Deputy President Harrowell: 1. The Tribunal notes the issues for determination may include: 1. Whether the orders made by the Tribunal in application COM 22/22892 on 31 August 2022 (being orders dated 7 September 2022) (Original Orders) were sufficiently certain as to: 2. scope of the fencing work; 3. location of the fencing work; 4. who was entitled to carry out the fencing works; 5. what was the date by which any works were required to be carried out; 6. the circumstances in which the respondents would be liable to pay the applicant the cost of any fencing work performed by the applicant. 1. For the purpose of a., whether, to the extent of ambiguity, the transcript and other evidence provided to the Tribunal in application COM 22/22892 is admissible for the purpose of construing the Original Orders and what is the proper construction of those orders. 2. Whether, to the extent the respondents were required to perform fencing work pursuant to the Original Orders, they failed to do so, or failed to do so in the required time. 3. To the extent the applicant was entitled to perform any fencing work, whether he did so in accordance with the Original Orders and/or the works done were of the required standard and/or in the correct location required(d) by those orders or otherwise by the Dividing Fences Act (1991) (NSW). In this regard the respondents contend the works done by the applicant were not on the boundary between the properties. 4. Whether a money order should be made in favour of the applicant in consequences of the Original Orders and, if so, for what amount. In this regard, there is an issue as to whether an order should be made under s 15(1)(b) for the payment of money. 5. Whether any issues identified by the Appeal Panel in its reasons for decision dated 23 May 2023 (Wang v Dimitropoulos [2023] NSWCATAP 137) (Appeal Panel) otherwise entitle or disentitle the applicant to the relief sought, 6. Whether, having registered and enforced by way of garnishee the order of the Tribunal (Money Order) made on 23 January 2023 (as subsequently amended) in application COM 22/56134 (the second proceedings) for payment of money, the applicant should repay to the respondents the money received by reason of the Appeal Decision setting aside the Money Order and having regard to any determination in the present proceedings, 1. Any other orders this presently constituted deems appropriate according to law.
2. The Tribunal now makes its determination in regard to each of the remitted issues and the issues directed to be determined., and if necessary, any other issues regarded by the presently constituted Tribunal as relevant.

Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act.

1. The remittal of the proceedings by the Appeal Panel is for reconsideration of the applicant's renewal application as an application for a money order and whether the Tribunal can exercise its discretion to make a money order for the amount agreed or ordered to be paid for, or, if the agreement does not specify the amount to be paid, half the cost of the fencing work carried out under section 15(1)(b) of the DFA.
2. The Appeal Panel has found that the Tribunal erred in making the Renewal Decision and upheld the respondents appeal of the Renewal Decision. The Appeal Panel at [21] - [26] of its decision said that it understood that the erroneously brought renewal application "was in substance a claim for recovery of monies under the DFA" and that it would have been consistent with the provisions of the DFA for the Tribunal to treat the application in this way.
3. In an application for a money order under the DFA, the Tribunal's discretion may only be exercised if: 1. An agreement was reached by adjoining owners or an order was made by the Tribunal for the payment of money, 2. An adjoining owner bound by the agreement or order failed to perform his or her part of the agreement or to comply with the order within the required time (which is three months from the making of the agreement or order in circumstances where no time limit for performance of the fencing work is specified), and, 3. The other adjoining owner has carried out the fencing work as agreed or as determined by the order.
4. The Tribunal has considered the transcript of the hearing of the Renewal Application on 31 August 2023 as included in the submission of the applicant on 12 July 2023.
5. Regarding the issue with the front end of the dividing fence, after discussions between the applicant, respondent and the Member about the price and different colour colorbond for each side of the proposed fence for the front end of the dividing fence, the transcript of 31 August 2023 is: 05.08 Mr Dimitropoulos "Yeah, um, its $662, it might be a bit more because the quote is 8th April, and obviously as you are aware, contractor's prices have gone through the roof as you might have heard through the media, so it might be a bit more, might be close to $700.00, I don't know because I don't have a recent quote". … 05.42 Member "What are these different colours, what are they called?" 05.45 Mr Dimitropoulos "So mine is colorbond grey, sorry, Woodland Grey. I'm not sure what his colour is called" 05.55 Member "Do you propose the posts be Woodland Grey?" 05.57 Mr Dimitropoulos "I proposes the posts be Woodland Grey and the Tracks be the colour he chooses". 06.04 Member "Mr Wang, what is the colour of your fence to be?" 06.09 Mr Wang "I don't know the name of the colour, but it will be (inaudible) as the fence will matching existing which means colour on my side will go with my side". 06.21 Member "But what is the colour". 06.22 Mr Wang "I don't know the name of the colour". 06.24 Member "But why not? Well, they're standard colorbond colours, aren't they?" 06.29 Mr Wang "Yes, the fencer will know it and match to existing colour". 06.34 Member "Ok, what do you think about Mr Dimitropoulos's proposal that the posts be in his colour and the tracks be your colour?" 06.44 Mr Wang "I wouldn't worry too much, that's fine with me" 06.47 Member "That's Ok?" 06.48 Mr Wang "Yes" 06.49 Member "Ok. So if I make an order that SFG Fencing be retained to do it in accordance with that agreement, that disposes of the front fence, right?" 07.01 Mr Dimitropoulos "Correct". 07.04 Member "Are you happy with that Mr Wang?" 07.04 Mr Wang "Yes, its ok. The only thing I need to confirm with Mr Spiro with regarding to the final price, because I'm not sure". 07.12 Member "Well, no, no, one of the reasons we are not sure Mr Wang is because you have produced no quotes" 07.23 Mr Wang "From last I can remember, I never (inaudible word) from my submission, I agree already in the last time". 07.45 Member "SFG will charge what they charge and the two of you will have to go halves in that, OK?" 07.50 Mr Wang "Yes, that's correct, I agree with that"
6. Regarding the issue with the rear end of the dividing fence and when the final orders were made, the relevant parts of the transcript of 31 August 2022 are: 40.23 Mr Wang "Um, one thing I want to ask Member, like if I wanted to cross (inaudible words followed by), do I have to lodge a separate application?" 40.31 Member "Um, um, well that's what I said, yes" 40.38 Mr Wang "Ok, I will reserve the right to lodge an application for a cross claim". 40.43 Member "But, um, I can tell you Mr Wang that even if you had lodged a cross application, I would've have went against you. I am giving my decision now. I respect to the front fence, I'll make orders saying in accordance with the um, the agreed, um orders of the um, of the parties, that is that the front is to be um, um, installed by SFG with the um, the, the different coloured panels on each side. Woodland Grey on Mr Dimitropoulos's side and a side specified by Mr Wang on the other side, um, that the, um. That the posts can be Woodland Grey, the tracks can be Mr Wang's colour, um in respect to the rear fence, I find that the fence that has been erected is not up to standard, it is aesthetically, um, um displeasing and it needs to be replaced and repaired, or repaired properly so I proposes to make an order under the Dividing Fences Act that um, Mr Wang, um, pay, um, the entire cost of repairing the rear fence, the reason for that is, while he submits that the cause of the demolition of the fence is the weather, um, it appears from the evidence before the Tribunal that the water tank was improperly installed in that it was placed on a sloping um, bed of concrete when the tank filled up, it fell over on the fence and caused the damage, um, its not for Mr Dimitropoulos to have to pay for the repair of the fence at all, um, so even if Mr Wang had put on a cross claim, I would have denied that in any event. Um, so there the orders I propose to make. Each side bear the cost of the, um, installing the (Mr Wang interrupts Member)". 42.43 Mr Wang (inaudible three to four words then Member interrupts him). 42.45 Member "Mr, Mr Wang, I'm delivering my decision, please don't interrupt. Mr Wang and Mr Dimitropoulos can share, are to share the cost of installing the front fence and Mr Wang is to bear the entire cost of replacing the damaged rear fence. That's my decision". …
7. The time for compliance with the Original Orders needs to be determined before considering whether the Tribunal can exercise discretion to treat the renewal proceedings as an application for a money order.
8. The Tribunal file COM22/22892 shows that the Original Orders were made on 31 August 2022 and entered by the Member on 7 September 2022. The transcript shows that the orders were made ex tempore at the hearing. Notwithstanding the written notification of the Original Orders being made dated 7 September 2022, the Tribunal is satisfied that the Original Orders were made on 31 August 2022.
9. The Original Orders do not specify a time for the fencing works to be carried. In the absence of such a time in the order, the DFA at s 15(2) provides that if no such time is specified in the order, then the required time for carrying out the fencing work is within 3 months after the making of an agreement or order for fencing work.
10. In the Original Proceedings the applicant sought orders determining: * The fencing work to be carried out (including the kind of dividing fence involved) * The manner in which contributions for the fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work. * Which portion of the dividing fence is to be construed or repaired by either owner. * The time within which the fencing work is to be carried out.
11. The fencing work was carried out and completed by the applicant's contractors on 6 December 2022. The fencing work was carried out more than 3 months after the Original Orders were made.
12. The Renewal Proceedings were commenced on 20 December 2023 and sought orders for the payment of money in the amount of $1,386.00, costs and interest at the Local Court pre-judgement rate of 4.85% in addition to orders that Order 1 and 2 made on 31 August 2023 be amended for a specific amount.
13. Where fencing work has not been carried out in accordance with an agreement or order, the applicant was entitled to avail himself of the provisions of s 15(1)(a) and carry out the fencing work as determined by the order on 31 August 2022.
14. The Tribunal now, in these Remitted Proceedings, is satisfied that the applicant sought as part of the orders in the Renewal Proceedings an order for the payment of money under the DFA.
15. The Tribunal finds that the Remitted Proceedings ought to be treated as a fresh application for the recovery of monies under the DFA.

Do the Original Orders require a party (and if so which party) to carry out fencing work;

1. The Original Orders do not stipulate which party is to carry out the fencing work.
2. The application for orders in the Original Proceedings is based on the Fencing Notice. Without a valid fencing notice the Tribunal would not have had jurisdiction to entertain that application.
3. The Fencing Notice does not propose who will carry out the fencing works.
4. S 14 of the DFA sets out the orders the Local Court or Tribunal may make. The DFA does not prescribe the making an order to carry out fence against either or both adjoining owners.
5. The applicant sought the orders as set out previously. The respondent did not make a cross application.
6. As the applicant has made the application for orders and has obtained the quote for the carrying out of the fencing works it may be inferred that the orders are in favour of the applicant arranging for the fencing works being carried out. However, the DFA does not require such an order, although in practice such an order is usually made.
7. S 3 of the DFA defines "adjoining owners" as the owners of land on either side of a common boundary.
8. S 15 of the DFA provides: (1) If an agreement is reached by adjoining owners or an order is made by the Local Court or the Civil and Administrative Tribunal and an adjoining owner bound by the agreement or order fails within the required time to perform his or her part of the agreement or to comply with the order, the other adjoining owner: (a) may carry out the fencing work as agreed on or as determined by the order, and (b) may recover from the defaulting adjoining owner the amount agreed or ordered to be paid by that adjoining owner or (if the agreement or order does not specify the amount to be paid) half the cost of the fencing work carried out. (2) The required time is the time specified in the agreement or order or, if no time is specified, within 3 months after the making of the agreement or order.
9. If the orders are construed as read, then the orders are in favour of both adjoining owners and either owner could have carried out the fencing works. In that the works were not carried out in the required time of 3 months, the applicant could cause the fencing work to be carried, as he did. The respondents being similarly able to cause the works to be carried out, but did not.

What was the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence

1. The Fencing Notice, with the applicant's quotes attached, specified the fencing works to be carried for both the front end and rear end of the dividing fence. The application in the Original Proceedings is based on the Fencing Notice.
2. The scope of the fencing works particularised in the Fencing Notice are: Front end fence works: Length of fence: 3.4 metres; Height of fence:1200mm; Type of Fence: Colorbond-slate grey Cost: $462.00 - The front end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $231.00 to Sydney Fencing and Gates on the date of completion and Spiro Dimitropoulos and Anna Dimitropoulos to pay $231.00 to the fencing contractor on the date of completion. Rear end fence works: Length of fence: 8.2 metres; Height of fence: 1800mm; Type of Fence: Colorbond-slate grey Cost: $1,386.00 - The rear end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $1,386.00 to Sydney Fencing and Gates on the date of completion.
3. The transcript of the Original Proceedings that the applicant and the respondents agreed with the Member that the front fence would be in accordance with the SFG quote but at the request of the respondents the colour of the fence would be different on each side increasing the cost to $660.00 and that the cost of the fencing works be shared between the parties, that is $330.00 each. The respondents agreeing that SFG would charge the amount to carry out the fencing work and that they agreed to pay half of that cost (Transcript at 07.50).

What was the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required;

1. For the reason as set out regarding the front end of the dividing fence, the scope of the fencing works for the rear end of the dividing fence was particularised in the Fencing Notice upon which the application is based.
2. In the transcript (at 40.43), the Member found that the respondents were liable for the proposed fencing works for the replacement of the repaired rear end dividing fence.
3. The transcript also provides (at 10.10): 10.10 Member "So you got a quote from SFG to replace that length of fencing?" 10.15 Mr Dimitropoulos "Correct".
4. The SFG quote is dated 8 April 2022 and was attached to the Fencing Notice.

Whether the fencing works were required to be carried out in accordance with a particular quote or invoice;

1. The Fencing Notice and the application based on the Fencing Notice reference both SFG quotes. The transcript shows that the Member referred to both SFG quotes respectively for the works required to be carried out, except with the variation of the quote for the front end of the dividing fence which was increased to accommodate the respondents concern for the fence colour on their side of the fence to match their existing fence colour.
2. The Tribunal is satisfied that it can infer from the transcript and the application that the Original Orders were referenced to the SFG quotes for the scope of the works to be carried out.

When did the "required time" for compliance with the Original Orders expire?

1. This question has been answered under the heading "Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act"(see paragraphs [56] - [60] of these reasons)

Whether the appellants (respondents)failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act.

1. The fencing works ordered were not carried out within the required time under the DFA. There was no substantial compliance with the Original Orders. The fencing work was not carried out until the applicant's contractor completed the fencing works on 6 December 2022.

Whether the work carried out by the respondent is the fencing work determined by the Original Orders.

1. On the evidence before the Tribunal the fencing work now completed has been completed in accordance with the Original Orders

Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover.

1. The Tribunal will exercise its discretion and make a money order in favour of the applicant against the respondents in the amount as claimed by the applicant being $330 as the respondents' contribution to the cost of the front end dividing fence and $1056.00 for the whole of the cost of the rear end dividing fence rectification, a total of $1,386.00 as was the intent of the Original Orders.
2. As to Deputy President Harrowell's directions the Tribunal responds respectively in the succeeding paragraphs.

Whether the orders made by the Tribunal in application COM22/22892 on 31 August 2022 (being orders dated 7 September 2022) (Original Orders) were sufficiently certain as to: (i) scope of the fencing work; (ii) location of the fencing work; (iii) who was entitled to carry out the fencing works; (iv) what was the date by which any works were required to be carried out; (v) the circumstances in which the respondents would be liable to pay the applicant the cost of any fencing work performed by the applicant.

1. The Tribunal response to this question is set out in paragraph of these reasons [75] - [82].

For the purpose of the previous direction, whether, to the extent of ambiguity, the transcript and other evidence provided to the Tribunal in application COM 22/22892 is admissible for the purpose of construing the Original Orders and what is the proper construction of those orders.

1. The Tribunal has considered the evidence before it and relied upon the transcript to make inference to clarify any ambiguity in Original Orders.

Whether, to the extent the respondents were required to perform fencing work pursuant to the Original Orders, they failed to do so, or failed to do so in the required time.

1. The Tribunal has responded to this question in paragraphs [56] to [60] and [65] to [73].

To the extent the applicant was entitled to perform any fencing work, whether he did so in accordance with the Original Orders and/or the works done were of the required standard and/or in the correct location required(d) by those orders or otherwise by the Dividing Fences Act (1991) (NSW). In this regard the respondents contend the works done by the applicant were not on the boundary between the properties.

1. S 16 of the DFA provides: 16 Substantial compliance sufficient (1) Substantial compliance with the terms of any agreement or order referred to in section 15 is sufficient for the purposes of this Act. (2) However, the adjoining owner who carries out the fencing work is liable to the other adjoining owner for any defect or omission in the fencing work.
2. The Tribunal is satisfied that the front end dividing fence installed by the applicant's contractor satisfies the requirements of a sufficient dividing fence and that it has been constructed substantially in compliance with the intent of the Original Orders. The front end dividing fence was installed in the same position above the existing boundary line adjacent to existing pavers. The encroachment is less than 0.5% of the length of the respondents' frontage to High Street. The encroachment is minor and within a reasonable person's acceptable tolerance. The fence follows the line of the existing pavers and is within an acceptable tolerance given proportionality of the length of the boundary (see Purcell v Chadwick [2018] NSWCATAP 250; Nasr v Kassiri [2020] NSWCATCD 12 and Jiang v Cousins [2019] NSWCATAP 118).

Whether a money order should be made in favour of the applicant in consequences of the Original Orders and, if so, for what amount. In this regard, there is an issue as to whether an order should be made under s 15(1)(b) for the payment of money.

1. The Tribunal has considered this issue in its reasons at paragraphs [65] and [87].

Whether any issues identified by the Appeal Panel in its reasons for decision dated 23 May 2023 (Wang v Dimitropoulos [2023] NSWCATAP 137) (Appeal Panel) otherwise entitle or disentitle the applicant to the relief sought,

1. The Tribunal has answered this direction generally in its determination set out in paragraphs [51] to [87]

Whether, having registered and enforced by way of garnishee the order of the Tribunal (Money Order) made on 23 January 2023 (as subsequently amended) in application COM 22/56134 (the second proceedings) for payment of money, the applicant should repay to the respondents the money received by reason of the Appeal Decision setting aside the Money Order and having regard to any determination in the present proceedings,

1. The Tribunal makes a money order in favour of the applicant. The money order can be applied against the moneys received by the applicant through his enforcement of the Money Order made on 23 January 2023 by garnishee.

Costs

1. The respondents made submissions in support of an application for costs filed on 3 October 2023.
2. The applicant made submissions in support of an application for costs against the respondents filed on 4 October 2023.
3. The applicant made submissions opposing the respondents' application for costs on 16 October 2023.
4. The respondent made submissions opposing the applicant's application for costs on 16 October 2023.
5. Neither party were legally represented in the proceedings.
6. S 60(1) of the CATA Act provides the general rule that parties should bear their own costs. No sufficient special circumstances under s 60(2) have been established by either party to warrant the Tribunal making a costs order in their favour.
7. The Tribunal declines to make an order for costs in favour of either party including the claim by the applicant for him to be reimbursed for the cost of a transcript.

Interest

1. In his final submission the applicant appears to have abandoned his claim for interest on the amount of his claim in accordance with the Local Court interest rate. In any case, in proceedings before the Tribunal no claim for interest can be made by reference to the Local Court interest or under any other relevant legislation to a claim under the DFA.

Orders

1. The Tribunal orders that: 1. The respondents, Whitney Hong Wang and Yunhao Ding must pay the applicant, Spiro Dimitropoulos, the amount of $1,386.00. 2. Any amount payable under Order (1) is to applied against any amount received by the applicant, Spiro Dimitropoulos, under any garnishee order against the respondent, Whitney Hong Wang and Yunhao Ding. 3. Any difference in the amount ordered in Order (1) and any amount paid under the garnishee order referred to in Order (2) for the debt recovered (not including costs and interest) must be paid by the respondents, Whitney Hong Wang and Yunhao Ding. 4. There is no order as to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2024