The appellants named in this appeal are Ms Patricia Feary and her mother Mrs Margaret Feary. The respondents are their neighbours, Mr and Mrs Mallia.
These reasons consider whether the Appeal Panel should extend the time for the filing of the Notice of Appeal.
For the reasons that follow, the Appeal Panel has decided to refuse to extend the time for filing the Notice of Appeal.
Accordingly, the appeal is dismissed.
[2]
Background
The appeal relates to the building of a dividing fence between the properties respectively owned by Mrs Margaret Feary and Mr and Mrs Mallia. Mrs Margaret Feary lives at number 24 XXXX Street in a Sydney suburb. She has lived there for almost 50 years, with her daughter Ms Patricia Feary. Their neighbours, Mr and Mrs Mallia, live at number 26 in the same street.
There is a long and unhappy history between the neighbours, as is shown in the many documents filed by Ms and Mrs Feary. These documents include, but are not limited to, a letter from Ms Feary's solicitors to Mr and Mrs Mallia dated 16 December 2010 relating to barking dogs kept on Mr and Mrs Mallias' premises, alleged intimidating behaviour of Mr and Mrs Mallia, and complaints about the trimming of plants growing from Mr and Mrs Mallias' yard into Mrs Feary's property.
The documents before the Appeal Panel indicate that:
1. Sometime prior to 1 January 2014 Mr and Mrs Mallia commenced proceedings pursuant to the provisions of the Dividing Fences Act 1991 (the DF Act).
2. The application concerned whether a dividing fence was a sufficient dividing fence within the meaning of the DF Act, whether fencing work was required to rectify and replace it, and what contributions for that work arose by operation of s 7(1) of the DF Act.
3. A hearing was conducted by the Consumer and Commercial Division of the Tribunal on 27 November 2014. At that hearing, the Tribunal ordered, by consent, that:
1. Mr and Mrs Mallia and Mrs Margaret Feary were to bear equally the costs of the fencing identified in quotation number 961 dated 30 July 2014 (the quotation) provided by Northern Beaches Timber Fencing and Supplies (NBTFS);
2. Mr and Mrs Mallia and Mrs Margaret Feary were to bear equally the costs of any consequential work that was required for the conduct of further works, in addition to the work the subject of the quotation;
3. Mr and Mrs Mallia and Mrs Margaret Feary were to remit their third aliquot share of such costs to NBTFS; and
4. in the event that NBTFS was unavailable to carry out the fencing work, Mr and Mrs Mallia and Ms Margaret Feary were to retain A Grade Fencing pursuant to an estimate dated 2 August 2014 to undertake and carry into effect the fencing work so ordered.
1. On 12 January 2015 the Tribunal made an additional order for the payment of money which the Tribunal found to be due and owing. The Tribunal ordered Mrs Margaret Feary to pay Mr and Mrs Mallia the sum of $1,480 immediately.
2. On 5 February 2015, at the request of Mr Mallia, the Local Court at Manly issued a Writ for Levy of Property in respect of Mrs Feary's property in the sum of $1,644.00.
3. On or about 9 February 2015, the Sherriff of New South Wales wrote to Mrs Feary, informing her that the Local Court had issued the Writ for Levy of Property, noting that the order authorised officers from the Civil Operations Unit of the Sherriff's Office to attend her address to obtain payment or to seize and sell her property to satisfy an outstanding amount of $1,693.32.
4. On 23 September 2015 Mrs Margaret Feary filed a Notice to Renew Proceedings. She requested a stay of proceedings. She stated that the order of the Tribunal of 27 November 2014 had not been complied with in that:
In the Tribunal Mr Mallia said the fence would be replaced "as is". It clearly isn't. In addition, without any communication with us, a ? privacy screen or ? landscaping structure was erected without notice to us or our consent. Yet is attached to the common boundary fence. When I asked my daughter Patricia to ask the fencer who in our 27 Nov 2014 order we were to pay, "why it wasn't completed as is?", we received the 12 Jan order, yet the fencer hadn't replied to our simple and understandable question.
1. On 29 September 2015 Ms Patricia Feary then filed a Notice of Appeal, naming herself and her mother as appellants. The appellants claimed that the boundary fence work, which was completed by mid-December 2014, "was not compliant".
The Appeal Panel notes that the letter of Ms Feary's solicitors to Mr and Mrs Mallia dated 16 December 2010, referred to above, states that Ms Feary holds a power of attorney in respect of her mother's affairs. That may be the case, but Ms Feary is not a proper appellant in this appeal. She was neither a party in the proceedings of the Tribunal below nor named in either of the orders of 27 November 2014 and 12 January 2015. Nevertheless, the Appeal Panel accepts that she is authorised to file the Notice of Appeal on behalf of her mother.
A directions hearing was held on 22 October 2015. The issue of whether the Ms and Mrs Feary should be given an extension on time to lodge the appeal was raised at the directions hearing. Both parties agreed that it would be appropriate for this issue to be determined on the papers, without a hearing. Taking into account the parties' views and the guiding principle in s 36(1) of the Act to facilitate the "just, quick and cheap resolution of the real issues in dispute", the Appeal Panel ordered that a hearing be dispensed with and directed that the question of whether Ms and Mrs Feary should be given an extension of time should be heard on the papers (s 50(2) of the Act).
Directions were made for Ms and Mrs Feary to file and serve submissions in support of their application for an extension of time by 5 November 2015. No direction was made for Mr and Mrs Mallia to file submissions on this issue, as they indicated at the directions hearing that the material they had already filed, namely their Reply to Appeal, was the material they would rely on in opposition to the application for an extension of time.
No submissions were filed by either Ms or Mrs Feary in accordance with the directions. However, there were documents filed dated 20 October 2015 which included correspondence to Ms Feary's local member, the Pittwater Council and correspondence with other neighbours about the boundary fence. These documents did not provide any explanation as to why an extension of time should be given or the basis for the appeal.
[3]
Notice of Appeal
Regulation 25 of the Civil and Administration Tribunal Rules 2013 relevantly provides that, unless the Tribunal grants an extension under s 41 of the Civil and Administrative Tribunal Act 2013 (the Act), an internal appeal (other than an appeal against a decision made in residential proceedings) must be made within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later).
The Notice of Appeal states that the orders challenged on appeal are:
The Local Court at Manly issued a Writ for Levy of Property … dated 20/04/2015.
A notice of write for Levy of Property to: Sherrif's Office, [Sydney,] East, issued 5 February 2015, 11.46am.
Notice to Custodian of Seizure dated 18/09/2015.
The Notice of Appeal states that the grounds of appeal are:
The boundary fence work completed after the Tribunal was t. Please see affidavit of Margaret Feary March 10, 2015 (4 pages) and enclosed associated documents (16 pages). Please see affidavit of Patricia Feary September 24, 2015 (9 pages) and associated documents (30 pages).
We were advised to apply for a rehearing with a stay of proceedings application.
On Friday Sep 25, 2015, NCAT advised me this was incorrect information and I now need to apply to appeal.
It is not entirely clear what orders Ms and Mrs Feary are seeking to appeal in respect of. As noted above, in Mrs Feary's Notice to Renew Proceedings, she stated that the order of the Tribunal of 27 November 2014 had not been complied with.
It seems tolerably clear that they seek to appeal in respect of the consent order of the Tribunal of 27 November 2014, the dividing fence being "not compliant", and that they also wish to appeal in respect of the order of on 12 January 2015 requiring Mrs Feary to pay Mr and Mrs Mallia the sum of $1,480.
It appears that Ms and Mrs Feary are seeking to appeal against the orders of the Local Court of NSW, However, as those orders were not made the Civil and Administrative Tribunal, they cannot be reviewed by this Appeal Panel.
In the circumstances, the Appeal Panel will assume that Mrs Feary, who is represented by her daughter, is seeking to appeal from the decisions of the Tribunal of respect of both the Tribunal's consent order of 27 November 2014 and its order of 12 January 2015.
Section 80(2)(b) of the Act provides that an internal appeal may be made against a decision of the Tribunal as of right on any question of law or with leave of the Appeal Panel on any other grounds.
The Notice of Appeal does not raise any discernible question of law, and Mrs Feary seeks leave to appeal under cl 12, Sch 4 of the Act. Clause 12 provides that the Appeal Panel may grant leave to appeal, but only if it is satisfied there has been a "substantial miscarriage of justice" because the decision was not fair and equitable or it was against the weight of evidence or evidence is now available that was not reasonably available at the hearing.
Ms Feary, for her mother, states in the Notice of Appeal that she is asking for leave to appeal as the decision of Tribunal of 27 November 2014 was not fair and equitable because:
The 27 Nov 2014 Tribunal order was not complied with and was brought to the attention of the fencer whom the Nov order requested we pay.
Now we have received a Notice to Custodian of Seizure. Sherriff Donna Hanshaw has requested a stay of proceedings, and a call from CTTT to her when it has been lodged - from CTTT. In the Tribunal Mr Mallia said the fence would be replaced "as is". It certainly isn't. In addition, without any communication with us, a ? privacy screen or ? landscaping structure was erected without notice to us or our consent. Yet is attached to the common boundary fence. When I asked my daugh the fencer who in our 27 Nov 2014 order we were to pay, "why it wasn't completed as is?", we received the 12 Jan order, yet the fencer hadn't replied to our simple and understandable question.
(strike through as in original)
We note that the orders of 27 November 2014 were consent orders. The jurisdiction of Appeal Panel where orders are made by consent and the principles to be applied were considered in Jones v Dempsey [2015] NSWCATAP 28. The Appeal Panel relevantly stated in that decision a consent order is an order which is binding on the parties in the same way as a decision given after a contested hearing: Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110 at [10].
[4]
Reply to Appeal
A Reply to Appeal, in the form of a statement of Mr Mallia, was filed on 16 October 2015. In summary, Mr Mallia states:
1. The fence in question was completed by 12 December 2014 to a very high standard.
2. He gave specific instructions to the contractor to check with Ms Feary regarding any questions or details as to how the fence would be finished. His only stipulation was that it was no lower in height than the previous fence.
3. The contractor reported no problems and kindly attached a gate free of charge for Ms Feary.
4. The final invoice was presented to Ms and Mrs Feary on 15 December 2014.
5. The fencing contractor informed Mr Mallia the following day that he had received a phone call from Ms Feary, who said that the fence was of an inferior quality and she had no intention of paying her share of the bill. Subsequently, Mr Mallia paid the invoice.
6. The privacy screen that Ms Feary is referring to was constructed by a different contractor in last January 2015, after she refused to pay for the fence and well after the NCAT orders were made. He says the screen is completely within his property and "fully compliant".
Attached to Mr Mallia's statement and forming part of the Reply to the Appeal a bundle of photographs including photographs of the new fence, photographs of the privacy screen, and photographs of the old fence.
[5]
Relevant principles
The relevant principles in considering whether or not to extend time were stated by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.
There the Appeal Panel considered an application for an extension of time where the hearing was held and orders made on 30 January 2014, and the notice of appeal was filed on 4 March 2014. This was a matter involving a residential tenancy where appeals must be filed within 14 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision. The notice of appeal was filed approximately 19 days' late.
The Appeal Panel refused the application to extend time, and dismissed the appeal. In doing so, the Appeal Panel noted the following relevant principles:
1. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings": see [18].
2. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant: see [22(1)].
3. The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision, and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success: see [22(2)].
4. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
1. the length of the delay;
2. the reason for the delay;
3. the appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. the extent of any prejudice suffered by the respondent (to the appeal),
see [22(3)].
1. It may be necessary to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice, namely, it may be relevant whether the appellant has a case that has more substantial merit than being fairly arguable: see [22(4)].
[6]
Consideration
The Appeal Panel makes the following relevant findings on the evidence before it:
1. The proceedings were listed for hearing on 27 November 2014 following directions made by the Tribunal about the filing of evidence, and consent orders made that day.
2. On 12 January 2015 the Tribunal made an additional order for the payment of money which the Tribunal found to be due and owing.
3. On 23 September 2015 Mrs Margaret Feary filed a Notice to Renew Proceedings.
4. On 29 September 2015 Ms Patricia Feary filed a Notice of Appeal, naming herself and her mother as appellants.
In light of those findings the Appeal Panel will now consider the relevant principles.
Length of delay: As noted, in Jackson the delay was some 19 days, and the Appeal Panel declined to extend time to file the appeal. This appeal was filed on 29 September 2015. This is approximately 9 months after the time in which the appeal in relation to the consent orders of 27 November 2014 should have been made, and approximately 7 1/2 months after the time in which the appeal in relation to the order of 12 January 2015 should have been made. This delay strongly militates against the grant of an extension of time.
The reasons for delay: No submissions were filed by either Ms or Mrs Feary pursuant to the directions of the Tribunal to explain the delay. Save for the reference in the Notice of Appeal which refers to the misconceived Application to Renew Proceedings, no mention is made of, and no explanation given for, the delay in filing the Notice of Appeal. This factor also militates strongly against the grant of an extension of time.
Prospects of success: It is clear from the reasons for decision that the Tribunal previously made directions about the filing of evidence, evidence was presented at the hearing by both parties and the Tribunal made findings based on the evidence presented. It is to be noted that the orders were consent orders. While it is not impossible to seek leave to appeal from consent orders, the task is difficult, and usually confined to orders which were affected by matters such as fraud, mistake, duress or undue influence: see the discussion in Jones v Dempsey at [28] and [29].
Again, this factor militates against the grant of an extension of time.
Extent of prejudice: Mr Mallia has not submitted that he would be prejudiced if an extension of time were granted. However, there is evidence before the Tribunal that Mr and Mrs Mallia are prejudiced by the delay in bringing the appeal. It is clear that Mr and Mrs Mallia have taken steps to seek to be reimbursed for having paid for Mrs Feary's share of the costs of building the dividing fence. They obtained the consent order in November 2014, and the subject fence was built by mid-December 2014. They have now taken steps to enforce recovery of Mrs Feary's share of the costs which Mrs Feary had agreed to bear, but now refuses to pay. Ms Feary, on behalf of her mother, did not lodge the appeal until after these steps had been taken. Again, this factor militates against the grant of an extension of time.
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel of the Tribunal conducted a review of the relevant cases and set out the principles at [84]. In summary, for leave to appeal to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
The Appeal Panel is not persuaded, on the materials before it and having examined the reasons for decision, the Notice of Appeal and the Reply to Appeal, that Mrs Feary has sufficient grounds to establish any of these matters. The appeal is misconceived. It appears to have been filed in response to Mr Mallia taking what appropriate steps to seek Mrs Feary's contribution to the building of the dividing fence the subject of the consent orders in November 2014.
[7]
Conclusion
As the Appeal Panel stated in Jackson at [21]:
Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced.
The Appeal Panel notes that the guiding principle for the Act is to facilitate the just, quick and cheap resolution of the real issue in the proceedings: see s 36(1) of the Act.
The Appeal Panel considers that each factor considered above strongly militates against the time for filing the appeal being extended. Accordingly, the Appeal Panel is not prepared to grant Mrs Feary an extension of time in which to appeal.
The application of Ms Feary on behalf of her mother Mrs Feary to extend the time for the filing of the appeal is refused.
The appeal is therefore dismissed.
[8]
Orders
The Appeal Panel makes the following orders:
1. The application for an extension of time in which to appeal is dismissed.
2. The appeal is dismissed.
[9]
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: 24 December 2015