Gurton v Morris

1.a) The Tribunal is satisfied that the Notice to carry out fencing work was served on the adjoining owner in accordance with s 21 of the Dividing Fences Act 1991.

b) The application for an order of the Tribunal was made not less than 1 month after the date of service of the Notice to carry out fencing work.

c) The Tribunal is satisfied that there is no sufficient dividing fence.

d) The boundary or line on which the fencing work is to be carried out is the line of the current fence.

e) The fencing work to be carried out is as set out in the quote of Byron and Beyond Fencing dated 26 November 2024 in the sum of $11,550.00

f) The fencing work is to be carried out on or before 9 February 2024.

g) The adjoining owner (including the owner's employees or agents) carrying out fencing work in accordance with these orders may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work.

h) The applicant and the respondent are to pay for the cost of the fencing work equally.

i) The applicant is to pay to the contractor the whole of the cost of the fencing work as per the quote of the fencing work, upon completion of the fencing work (or as otherwise agreed with the contractor).

j) The respondent is to pay the applicant their portion of the cost of the fencing work within seven (7) days of the applicant giving the respondent a copy of any receipt(s) for payment of any costs of the fencing work to the contractor.

1. The Tribunal gave written reasons for its decision. At [4] the Tribunal noted that the parties agreed that the current fence was not sufficient. Photographic evidence showed the fence to be in very poor condition, with parts of the fence falling down, rotting in places and with gaps between palings.
2. At [6]-[7] the Tribunal recorded that Ms Gurton submitted at the hearing that she only wanted to contribute one third of the cost for the new fence. This was because Ms Gurton said that the insufficiency of the current fence had been caused by Mr and Ms Morris. Ms Gurton said that Mr and Ms Morris had left vegetation along the fence, that a mango tree on their property had caused damage to the fence and that a water tank had caused damage to the fence in the past.
3. At [8] the Tribunal stated that it did not accept Ms Gurton's submission to pay a lesser contribution. The Tribunal found that the fence was at least 40 years old. The water tank had been removed. The Tribunal found that whilst photographs showed palms of the mango tree hanging towards or over the fence, there was no evidence that the palms had damaged the fence. The Tribunal held that the fence had become insufficient due to its age and to wear and tear that had occurred over time.
4. At [9] the Tribunal recorded that Ms Gurton stated at the hearing that she did not seek orders based on the quote provided with the Fencing Notice, nor orders based on any quote included in the evidence. The Tribunal recorded that Ms Gurton sought an order for new quotes to be provided which allowed for sleepers to be installed at the bottom of the fence.
5. At [10]- [11] the Tribunal recorded that the only quote to which it had been taken was the quote tendered by Mr and Ms Morris from Byron and Beyond Fencing dated 26 November 2024 for $11,550.00. The Tribunal held that it was satisfied that this quotation was reasonable. The Tribunal noted that this quotation did not allow for the installation of sleepers underneath the fence as sought by Ms Gurton but was satisfied that the quotation was reasonable because there were no sleepers under the current dividing fence and the fencing work replaced like for like.

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Wan v Chief Commissioner of State Revenue [2025] NSWCATAP 54 at [51].
2. Internal appeals to the Appeal Panel may be made as of right on a question of law, and otherwise if the Appeal Panel grants leave: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
3. Principles relevant to assessing whether a question of law arises were recently summarised by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204. Those principles include that it is not possible to raise a question of law by a mere drafting device of asserting error of law: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223. Put another way, the notice of appeal must in substance genuinely raise a question of law.
4. In Unique, the Appeal Panel also noted at [28] that when dealing with self-represented parties the Appeal Panel has in many instances considered for itself whether a question of law is raised.
5. If a question of law is raised on an internal appeal, then unless leave to appeal is also granted, that question of law is the only subject of the appeal: Unique at [25]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [22]; Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22].
6. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance.

1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
2. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. The Notice of Appeal was lodged on 6 January 2025, which is within the 28 day time period specified in rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 .
2. The sole ground of appeal specified in the Notice of Appeal is that "The tribunal member had not examined the information I had provided in my submission to NCAT see introductory letter".
3. Ms Gurton sought a range of orders in the Notice of Appeal which she said that the Appeal Panel should make, including that the dividing fence be replaced in accordance with a report and quote from a firm called Fencing and Hammers which she had obtained since the date of the Tribunal's decision, that Mr and Ms Morris pay two thirds of the cost, pay the full cost of protective sleepers and other costs, that the mango tree be pruned away from the fence and that Mr and Ms Morris be required to keep the fence clear of soil, leaf litter, vines and invasive plants.
4. The Notice of Appeal stated that Ms Gurton sought leave to appeal on the bases that the decision was not fair and equitable, that the decision was against the weight of evidence and that significant new evidence had arisen that was not reasonably available at the time of the original hearing.
5. In elaborating in the Notice of Appeal as to why the decision was not fair and equitable, Ms Gurton said the Tribunal did not take account of false and misleading information provided by Mr and Ms Morris. This included an assertion that Ms Morris had lied about the reasons why the Local Court would not hear the case and about the state of the fence and that Mr Morris had lied about the distance of the mango tree from the fence.
6. Ms Gurton's claim that the decision of the Tribunal was against the weight of evidence included a statement that "I was not able to give evidence at the hearing as each time I tried to refer to my documentation [the Tribunal Member] would not allow it".
7. The Notice of Appeal identified the new evidence on which Ms Gurton relied as the report and quotation from Fencing and Hammers which she had obtained after the Tribunal decision.
8. A document attached by Ms Gurton to the Notice of Appeal described as ""Introductory Letter for Appeal" ( presumably the document referred to in the ground of appeal) asserted, among other things, that the Tribunal Member was "aggressive and intimidating" and did not seem to have read the documentation Ms Gurton had provided. This document also identified an asserted question of law, namely "Under the Dividing Fences Act if any party causes damage to the fence they are liable for the cost of repair".

1. Accompanying the Notice of Appeal was an application by Ms Gurton for a stay of the original decision pending the appeal. Ms Gurton's application for a stay was dismissed by the Appeal Panel on 29 January 2025.
2. Documents lodged by the parties relating to the appeal included:

(1) documents lodged by Ms Gurton on 27 February 2025, which included a sound recording of the Tribunal hearing and a transcript of the hearing;

(2) affidavits of Ms Morris affirmed on 10 February 2025 and 3 March 2025, which the Appeal Panel has treated as submissions; and

(3) documents lodged by Ms Gurton on 9 April 2025 which included a sound recording and transcript of the Appeal Panel hearing on 29 January 2025 when Ms Gurton unsuccessfully applied for a stay of the Tribunal decision.

1. Amongst the documents lodged by Ms Gurton on 9 April 2025 was a document described as "Extra information in response to Affidavit provided by Phyliss Morris 3rd March 2025". In this document Ms Gurton claimed that there were three points of law raised by the appeal, under the headings "The type of fence" (which appears to relate to the omission to order sleepers under the new fence), "Who is responsible for damage to the fence" (which is substantially identical to the asserted question of law raised in the document accompanying the Notice of Appeal) and "Providing false and misleading information". In this document Ms Gurton stated that she believed that Mr and Ms Morris should now pay for the full cost of the new fence because she had already incurred various costs which she considered to be more than the cost of one third of the new fence.

1. At the hearing of the appeal Ms Gurton spoke to the various written submissions which she had provided. Ms Gurton reviewed in detail the evidence which she had originally provided to the Tribunal and also referred to a considerable amount of evidence in the documents which she had lodged which had not been provided to the Tribunal. Apart from the report and quotation from Fencing and Hammers which were dated 12 December 2024, Ms Gurton referred to an annotated diagram of the boundary she had prepared since the Tribunal hearing and a large number of photographs with accompanying annotations which Ms Gurton had since taken.
2. In relation to the report and quote from Fencing and Hammers which she obtained after the Tribunal decision on 12 December 2024 Ms Gurton said in relation to the Tribunal hearing that " my mistake was not to get a new quote".
3. Ms Gurton said that she understood that the Tribunal's orders imposed primary responsibility on her to have the new dividing fence erected. She said that she had refused to comply with the orders notwithstanding that her application for a stay had been dismissed because she wanted to bring a number of matters to the attention of the Appeal Panel.
4. Mr Morris, on behalf of the respondents, supported the decision made by the Tribunal. He said that all of the issues which Ms Gurton was seeking to raise on the appeal had been raised in the Tribunal. He vehemently denied that either he or Ms Morris had lied to the Tribunal.

1. We do not consider that any of the questions of law expressly asserted by Ms Gurton genuinely arise in this appeal. First, the question about the type of the new fence to be erected and, in particular, whether it should include sleepers at the base of the fence, is a question of fact determined by the particular circumstances relating to the fence in question. In this case the Tribunal made findings of fact that there were no sleepers under the existing fence and that a like for like replacement was reasonable.
2. Secondly, there is no dispute, nor could there be any sensible dispute, that a person causing damage to a dividing fence due to a negligent or deliberate act is liable for the cost of repair. Section 8 of the Act expressly so provides. In this case the Tribunal, after considering the evidence, found that the fence had become insufficient due to wear and tear over a considerable period of time rather than due to any act or omission by Mr and Ms Morris. This was a finding of fact, not of law.
3. Thirdly, the question of whether Mr and Ms Morris gave evidence to the Tribunal which was deliberately false is plainly a question of fact. We hasten to add that there was no material provided to us which suggested that either Mr or Ms Morris gave deliberately false evidence or which would even begin to persuade us as an Appeal Panel that we should make such findings ourselves. Moreover there is no indication that any of the asserted false evidence was in any way material to the decision reached by the Tribunal.
4. However, other facts and circumstances complained of by Ms Gurton in relation to the Tribunal hearing do raise a question of law. In particular, Ms Gurton complained that the Tribunal did not allow her to give her evidence, did not consider the evidence which she had provided and that the Tribunal Member had been "aggressive and intimidating" towards her. These complaints raise a question whether the Tribunal failed to afford procedural fairness to Ms Gurton. This raises a question of law: J_ohn Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd_ [2014] NSWCATAP 69; Unique at [30]; Donohoe v Albulario [2025] NSWSC 9 at [36]- [39].
5. We have carefully considered the sound recording of the Tribunal hearing and the transcript of the hearing. It is clear that the Tribunal Member considered the documentary evidence relied on by both parties to which he was taken. The Tribunal took sworn evidence from both Ms Gurton and Mr Morris. It is also clear that the Tribunal Member was trying to understand the real concerns raised by both parties in the limited time available, and that in order to do so, on occasions, he had to ask both parties more than once to precisely state what they were contending. We are satisfied that there is no substance to Ms Gurton's complaint of lack of procedural fairness and the appeal on this basis should be dismissed.
6. We also consider that there is no basis to grant leave to appeal in respect of any other complaints raised by Ms Gurton. We have already dealt with the complaints relating to the absence of any order for the new dividing fence to include sleepers, the findings related to the reasons why a new fence is now required and the assertion that Mr or Ms Morris gave deliberately false evidence. The new evidence relied on Ms Gurton in this appeal is all evidence which Ms Gurton apparently decided may assist her to run her case again after the Tribunal hearing. It is all clearly evidence which would have been available at the Tribunal hearing with reasonable diligence.
7. Accordingly, we are satisfied that Ms Gurton did not suffer a substantial miscarriage of justice on any of the bases identified in cl 12(1) of Schedule 4 to the NCAT Act. Leave to appeal should be refused.

1. Ms Gurton further submitted that she had outlaid over $4000 in costs and as a result should not have to pay for any of the fence.
2. The bundle of documents that Ms Gurton provided on 9 April 2025 included list of expenses totalling $4108.38 with receipts, For the sake of completeness we briefly deal with this submission to the extent that Ms Gurton is seeking her costs in the appeal,
3. Under s 60(1) of the NCAT Act, each party to proceedings in the Tribunal is to pay the party's own costs. Under s60(2), the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
4. An exception to s60(2) is found in rule 38 of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules), which relates to the Consumer and Commercial Division of the Tribunal. That exception does not apply here. Accordingly, Ms Gurton may only be awarded costs in the proceedings if we are satisfied that there are "special circumstances warranting an award of costs" within the meaning of s 60(2) of the NCAT Act.
5. Subsection 60(3) of the NCAT Act provides:

(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g) any other matter that the Tribunal considers relevant.

1. Subsection 60(3) uses the expression "may have regard to the following" and the factors are not mandatory considerations. The list is also not exclusive: NCAT Act s 60(3)(g).
2. No special circumstances have been made out and Ms Gurton has been unsuccessful in the appeal. There is no basis for Ms Gurton to be awarded costs.

1. The appeal should be dismissed. However it is necessary to vary the orders made by the Tribunal in order to ensure that they have efficacy. We have jurisdiction to make variations to the orders under section 81 of the NCAT Act. We note that the Appeal Panel in Nayar v Uren [2024] NSWCATAP 47 took a similar approach to that which we are taking. That was also a matter arising under the Act, and the Appeal Panel dismissed the appeal except to the extent of making new orders as necessary in relation to the fence in question.
2. One difficulty with the orders made by the Tribunal is that they do not expressly identify the party who is to engage the fencing contractor to carry out the fencing work. The ambiguity in the orders in this regard was raised by the Appeal Panel at the stay hearing on 29 January 2025. At that time the parties stated that it was their understanding from the orders that Ms Gurton was responsible for engaging the contractor. It is important that this is made expressly clear in the orders: Nayar v Uren at [44]; Minifie v Maxwell [2020] NSWCATAP 30 at [13]. This is important for at least two reasons. First, if the party responsible for engaging the contractor disobeys the order then the Tribunal can consider whether the disobedience is a contravention which can be dealt with under section 72 of the NCAT Act or contempt of the Tribunal which can be dealt with under section 73 of the NCAT Act. Secondly, if the party who is made responsible for engaging the contractor fails to do, then the other adjoining owner has rights under section 15 of the Act to carry out the work and recover the amount ordered to be paid by the defaulting adjoining owner.
3. In this case, Ms Gurton believed that the orders made by the Tribunal required her to engage the contractor and she refused to obey the orders after her application for a stay was refused. The orders did not clearly and expressly confirm her belief that she was responsible, so it is not appropriate for any action to be taken in relation to Ms Gurton's conduct. However, it was implicit in the original orders and understood by the parties that Ms Gurton would be responsible for arranging for the fencing work to be done. Ms Gurton has not made out any basis on which to change the orders made by the Tribunal, except to clarify what was intended. It is consistent with the obligation to give effect to the guiding principle in s 36 of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings to vary the orders to specify that Ms Gurton is to cause the necessary fencing work to be carried out.
4. Secondly, order 1 e) of the Tribunal's orders states that the fencing work to be carried out "is as set out in the quote of Byron and Beyond Fencing dated 26 November 2024 in the sum of $11,550.00".That quote was amongst the materials provided to us. The quote itself has now expired. The work to be completed specified in the quote is:

"Supply and install of:

50 m of 1800 mm High Treated Pine Paling Fence

100mm x16 mm Treated Pine Palings

75mm x 38mm Treated Pine Rails

100mm x 75mmTreated Pine Posts Concreted 600mm Below Ground Level

45mm Ring Shank Galvanised Nails

100mm Galvanized Batten Screws

Removal & Disposal of Existing Fencing"

1. It is not entirely clear whether order 1 e) was simply identifying the work to be carried out (which we have set out above), or whether it also contemplated that the work was to be carried out by Byron and Beyond Fencing in the sum of $11,550.00.The wording of order 1 i) suggests that the latter interpretation may have been intended. However, in the present circumstances we consider the order 1 e) should be varied to make it clear that it is only identifying the work to be carried out but not the contractor nor the price. A consequential variation to order 1 i) is required.
2. Thirdly in the circumstances it is also necessary to amend the date by which the fencing work is to be carried out.
3. We make the following orders:

(1) Leave to appeal refused.

(2) Appeal dismissed, except to the extent of varying the orders made by the Tribunal on 9 December 2024 (Tribunal Orders) as set out in the following orders.

(3) Order 1 e) of the Tribunal Orders is varied by deleting the existing order and inserting "The applicant is to cause the fencing work to be carried out by engaging a licensed fencing contractor to carry out the fencing work which is identified in the quote of Byron and Beyond Fencing dated 26 November 2024."

(4) Order 1 f) of the Tribunal Orders is varied by deleting "9 February 2025" and inserting "9 August 2025".

(5) Order 1 i) is varied by deleting "as per the quote of the fencing work"

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.