Jiang v Cousins

Surveys

1. The appellants obtained a survey report from Geoffrey Gallen of East West Surveyors Pty Ltd dated 12 of December 2017. Relevant to the fence, it states: Apart from minor variations along the fence lines there are 0.06 and 0.11 visible encroachment [sic] at the back right hand corner of the land upon the subject land.
2. A sketch plan is attached showing the location of the encroachments.
3. The respondents obtained a survey certificate of Mark Castelletti Surveying dated 27 of April 2018. It relevantly states: The rendered brick WC marked TC encroaches on adjoining Lot E by up to 0.02 m. The roof attached to the aforementioned WC overhangs adjoining Lot E by up to 0.08 m. The wall of the brick cottage marked WL encroaches on the subject land by 0.03 metres."
4. A plan is attached to such survey.
5. An old survey dated 31 of August 1962 refers to the WC erected at the rear of the respondent's land and states: A brick W.C. at the rear of the land stands from 0 ½ " [0.5 of an inch] to 2 ½ "[2.5 inches] outside the south western boundary, the rear of the adjoining building stands 0 ½ "on subject property and the wall of the main building stands 0 ½ " on to the lane along the north eastern boundary as shown on the sketch. Other than the above there are no encroachments by or upon the subject property.
6. The plan referred to in this survey cannot be located.

Tribunal proceedings

1. The appellants brought proceedings in the Tribunal under the Act. Their purpose in doing so was to seek relief in the nature of an order that the fence be located wholly upon the boundary as surveyed. That is, the encroachments were to be removed, and the fence be relocated to the correct surveyed boundary. However, during the course of the hearing before the Appeal Panel, the appellant stated that he would be content if the fence were relocated in the position of the former fence.
2. When these proceedings came before the Tribunal for a hearing, the Tribunal, according to the transcript, informed the appellants that the Tribunal was required to determine whether there was a sufficient fence between the two properties. The Tribunal informed the appellants that its power was under section 14 of the Act to make orders but that the Tribunal had no power to make the orders of the kind sought by the appellants, since there was already a sufficient fence in place. For these reasons the application was dismissed.

Notice of appeal

1. The notice of appeal has been prepared by the appellants. The grounds of appeal allege that the decision to dismiss the proceedings because there was no power to make an order was "reckless". It is alleged that pursuant to section 14 (1) (a) of the Act, the Tribunal can determine the boundary or line on which fencing work is to be carried out. The appellant states "we assume the new fence would be in the same position as the old fence".
2. The appellants state in the grounds of appeal: We ask the Tribunal to determine the fence line to be same position as the old was at the date of the agreement.
3. The appellants claim the decision should be set aside, stating: We need to demolish our short wall in the backyard including the part of the wall under the fence encroached, so that we can make the back yard wider to park our car in the yard. Our house is very old, we need rebuild back part of our house near future, but the fence is in the way.
4. The applicants claim that the decision made on 21 November 2018 should be set aside and instead there should be an order "to move the fence onto the boundary, or back to where the old fence was". However, it appears that during the course of the Tribunal hearing there is evidence that plumbing attached to a wall of the appellants on the respondent side causes noise when the respondent uses water. Further, it appears that the Tribunal was requested to consider the Encroachment of Buildings Act 1922, particularly section 3.
5. The notice of appeal indicates that leave is sought to bring the appeal. The appellants claim that the decision was not fair and equitable and state their reasons relevantly as follows: 1. [The Tribunal member] made the decision without a hearing 2. The decision was made without considering any hard evidence that indicated the respondent encroached the fence further onto our property from the old fence on purpose. 3. [Another Tribunal member on a different date] let us had done the fencing serve properly before applying the application again. He thought differently from [the other Tribunal member] [sic]

Reply

1. The respondents seek an order that the notice of appeal be dismissed on the basis there was no error of law because the Tribunal did not have jurisdiction to grant the orders sought. The respondent submit there is no evidence of any injustice nor is there an issue of public importance.

The question of leave

1. This appeal is an internal appeal made under section 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 No.2 (the NCAT Act). A grant of leave is required on any question, other than a question of law.
2. The appellants claim that the Tribunal member dismissed their application, finding that there was no jurisdiction to entertain it, without properly hearing the proceedings, and further that the Tribunal member, in the appellants absence, informed the respondents that he agreed with the legal advice provided to the respondents that he did not have jurisdiction to hear the application brought under the Act for an order concerning the fence.
3. Failure to afford procedural fairness is a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. The only grounds of appeal appear to be that the appellants were not afforded an opportunity to present their case, that during the hearing the Member spoke to the respondents about the case in the absence of the appellants and the Member was biased. These allegations are allegation of procedural unfairness and therefore questions of law. The grounds of appeal do not directly raise the question that the order made by the Tribunal Member, dismissing the application for want of jurisdiction, was wrong. Such a ground is also a question of law, that is, whether the Member misunderstood or misapplied the law. Therefore leave to appeal is not required.
4. The allegations of breach of procedural fairness make it is necessary to consider the evidence and the transcript of the proceedings when the proceedings were dismissed.

Procedural fairness

1. On the original application, the matter came before The Tribunal Member in a list with approximately 12 other matters. When the Tribunal member came to deal with the matter, he suggested to the parties, who were not legally represented, that they "go outside and have a talk". The Tribunal member then said: I still have doubts about whether I think… Mr Jiang, Ms Pi you were told last time that we really don't have jurisdiction to do what you are asking for.
2. Thereafter there was debate concerning the fact that the applicants (appellants) sought an order to move the fence to the boundary as the fence encroached on their property.
3. The Tribunal Member then told the appellants to talk outside and that if there is no resolution "let me know". The appellants claim that they then left the hearing room, and a conversation took place between the Tribunal Member and Mr Cousins (the first respondent) who said to the Tribunal member: We have been advised by our solicitor that you do not have jurisdiction in this case.
4. The Tribunal Member replied: "No I don't think I do either. No I don't see anywhere and I have been doing these dividing fence cases for a long miserable time and I know what we can and can't do and I'm pretty certain we can't do this one, okay".
5. Mr Cousins responded "Yes, thank you."
6. The Tribunal Member is recorded as then having said: They're just going to have a quick talk to you and they will let you know their position and you can let them know yours and ah we will deal with it from there.
7. From the last statement of the Tribunal Member it appears that the exchange took place in the presence of the appellants. Irrespective, the appellants claim that when they returned to the hearing room, the Tribunal Member informed them that the Tribunal had no power to make orders as ought in the application and it was dismissed.
8. The dismissal of the application took place before the applicants (appellants) had placed any evidence before the Tribunal and before they were afforded an opportunity to give any submissions.
9. In Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338, Bowen CJ, referring to a decision of the Administrative Appeals Tribunal said, after considering the creation of that Tribunal: 57. It Is significant also that the Administrative Appeals Tribunal Act contemplates hearings free from legal technicalities without formality and with as much expedition as possible. The Tribunal itself is required to ensure that the applicant has a reasonable opportunity of presenting his case.
10. By analogy, the remarks of the Chief Justice apply to the conduct of proceedings before this Tribunal. Section 36 of the NCAT act refers to the "guiding principle" for such act and the rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings". However, it does not follow that, in administering justice in this way, the rules of natural justice have no application. The necessity of observing the rules of natural justice in the Tribunal was recently affirmed by the Supreme Court of New South Wales in CLD v Children's Guardian [2017] NSWSC 936 at [17] and [18]. At [17] the Court said, inter alia: The Tribunal was entitled to dispense with a hearing only if it had first afforded the parties an opportunity to make submissions about the proposed order; taken such submissions into account; and made an order under s 50 (2) of the CAT act.
11. At [18] the court said, inter alia: The Tribunal's failure to inform the plaintiff that it proposed to affirm the decision under review and give her an opportunity to address any matters of concern also amounted to a denial of procedural fairness. However, it is not necessary to expand on this ground as the Tribunal's non-compliance with s 50 of the CAT act is sufficient to vitiate its decision.
12. Because the appellants were denied the opportunity of presenting their evidence and making submissions, there has been a denial of procedural fairness.
13. The appellants claim that the decision under review is infected with bias; that apprehended bias existed in the remarks of the Tribunal Member sufficient to show that he could not bring an impartial mind to the determination.
14. The test for apprehended bias justifying disqualification is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: see Johnson v Johnson (2000) 201 CLR 488. Bias is a serious allegation and must be distinctly made and clearly proved: see Re Refugee Tribunal; Ex-parte H (2001) 179 ALR 45 at [28]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. In Lusink and anor ; Ex parte Shaw (1980) 55 ALJR 12; 32 ALR 47, Gibbs ACJ said that such an allegation: it must be "firmly establish" that such a suspicion may reasonably be engendered in the minds of the public.:.
15. See also Bathurst CJ in Duncan v IPP and others [2012] NSWCA 189 at [148]
16. Based upon the transcript of the Tribunal hearing, there was a clear "deviation from the course of deciding the case on its merits": see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. There was also actual bias in the determination. The Tribunal member was biased in that he approached his determination with a predetermination that the appellants could not succeed because the Tribunal did not have jurisdiction.
17. The relevant test is whether the decision-maker has predetermined the matter. In this instance there was a clear predetermination of the issue whether the Tribunal had jurisdiction to entertain the claim under the Dividing Fences Act in the absence of a hearing. As such, the Tribunal decision is infected with jurisdictional error because such a finding could not have been made in the absence of a hearing.
18. In summary, the Appeal Panel considers that a procedural irregularity has occurred in the original hearing resulting from the fact that the applicants (appellants) were denied the opportunity of putting forward all of their evidence and their submissions. It is clear that the Tribunal member, prior to hearing the evidence and submissions, had predetermined the issue before him by concluding that the Tribunal had no jurisdiction. Irrespective of whether the conversation took place between the Tribunal member and the respondent's in the presence of the applicants (appellants), the miscarriage is clear. If the conversation took place in their absence, that fact compounds the miscarriage of justice.
19. The finding that there was a failure to afford procedural fairness to the appellant at the Tribunal hearing means the appeal should be allowed.
20. Given the small amount in dispute, and the fact the parties have already been before the Tribunal on a number of occasions, the Appeal Panel determines that it is in the interests of justice to decide to deal with the internal appeal by way of a new hearing as the findings about procedural fairness warrant a new hearing. All fresh evidence was accordingly allowed in the new hearing before the Appeal Panel.
21. Sections 80 and 81 of the Civil and Administrative Tribunal Act are as follows: 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance
22. The process by which the Member made his decision was flawed, but it is now for the Appeal Panel to determine whether the decision itself was erroneous, or correct.

Statutory Provisions

1. Section 4 of the Act empowers the Tribunal: "to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act including the following: (a) the existing dividing fence (if any)…".
2. Section 6 of the Act provides: (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands.
3. Subsection 7 (1) provides that adjoining owners are liable to contribute in equal proportions for the carrying out of fencing work in respect of a dividing fence "of a standard not greater than the standard for a sufficient dividing fence".
4. Section 7 (2) provides: An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.
5. The procedure for the implementation of a new fence is contained in section 11. It requires that an adjoining owner make require the other adjoining owner to contribute to the carrying out of fencing work by serving a notice in writing to that effect: see s.11(1).
6. Relevantly, the notice must include (s.7(2)(a)): (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work.
7. The term "fencing work" is defined as (s.3): (a) the design, construction, replacement, repair or maintenance of the whole or part of a the fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of the adjoining lands for such a purpose….
8. The Act expressly acknowledges that survey work comprises part of "fencing work". It also recognises that it may be impracticable to carry out fencing work on the common boundary, and that the fence may be erected otherwise than on the boundary line.
9. The Supreme Court explained in Alwiah v Watts & Anor [2004] NSWSC 948 at [10]: 10 The content of the Act demonstrates that jurisdiction to make orders is dependent upon a finding that there is an insufficient dividing fence between the adjoining lands. Unless that finding is made, no orders can be made. Such a finding gives rise to the liability referred to in s6 and enables the making of orders pursuant to s14.

Consideration

1. The material before the Appeal Panel establishes that a wooden paling fence divided the two properties, and that such fence had been in existence for many years. In October 2017 the respondent suggested the applicants of the fence should be replaced and that the appellants agreed. Quotes were obtained for the cost of replacement fence by the respondent's and such quotations were submitted by the respondents to the appellants. Accordingly the respondents gave the opportunity to the appellants to select whether they required a paling fence or a metal colour bond fence for the replacement dividing fence.
2. The appellants selected metal Colourbond fence and by agreement for fencing work dated 10 November 2017, signed by all parties, it was agreed that the cost of the new fence would be paid by the respondents to the contractor and that the appellants would reimburse 50% of such cost on the day the work was completed. The agreement also nominated the contractor namely John's Local Fencing to carry out the work in accordance with his quote given on 4 November 2017. No identification of the boundary was provided, but it is apparent that both parties understood the new fence would be located in the same position as the old fence.
3. The work was duly undertaken. On the last afternoon of the work, is Ms Pi, the second appellant, stated that she believed that the fence was in the wrong position. As a result, the appellants have declined to pay for their share of the cost of the new fence. Further, they have claimed that the fence encroaches on their property.
4. The appellants maintain that the encroachment was a deliberate act by the respondents. The appellants arrive at such a conclusion because the quotation, which they accepted, shows the length of the fence for the quotation which they selected as being 10 cm longer than the wooden fence quotations, and that the additional length was to enable the fencing contractor to move the metal fence more onto their side of the boundary.
5. Photographs have been shown which show the old timber fence abutting the south west corner of the WC .The new metal fence does not terminate on this corner, but rather extends so that it is fixed to the side wall of the WC facing the appellant's property. The extension appears to be about 10 cms and has the width of the metal sheet and supporting post.
6. The new Colourbond fence divides the properties of the appellants and the respondents. The new fence, according to the statements of the contractor was constructed in the same position as the previous fence.
7. The only survey which exists of the respondents' property prior to the construction of the new fence is that of John E Stapleton dated 31 of August 1962. That confirms that the house in which the respondents have lived since 1993, as having been erected prior to 1919. Accordingly, it was not subject to the requirements of overhang of the eaves and guttering. The survey recorded that the WC encroached onto the appellants land by between half and 2 ½ inches.
8. It would follow therefore that if the old wooden paling fence abutted the south-western corner of the WC, on its corner edge as shown in a black-and-white photograph, such fence encroached on the appellants land to the extent of the encroachment of the WC.
9. For many years the respondents have had a hot water heater located in close proximity to the fence. It appears that the hot water system was installed in a position which partially encroached, but this cannot be verified as it is not referred to nor shown on any survey.
10. During the appeal hearing the first appellant made a significant amount of submissions. He stated that he was concerned about the location of the boundary line following discussions with the respondents concerning the prospect of a new fence. The first appellant was so concerned he approached the local Council and asked for their advice. The first appellant was informed that he would need to obtain a survey which might cost about $2000. The first appellant decided not to proceed with a survey of the boundary line.
11. The first appellant deliberately did not mention his concern to the respondents that the existing fence might not be located on the correct boundary line. It would follow that, unless corrected, the new fence would also not be in the correct position. Instead, the first appellant was content for the fencing work to be carried out irrespective of the correct boundary line.
12. The recent surveys show that the new fence encroaches 0.11 near the appellants house and approximately 0.06 near the brick toilet. The units were of measurements are assumed to be metres such that 0.11 is 11cm and 0.06 is 6 cm. However, based upon the evidence already before the Tribunal, the new fence is located in the same position as the old fence. The metal sheeting might extend beyond the south-western corner of the WC to enable its fixing to the wall, as shown on the photographs as tendered, but such new encroachment seems de minimis.
13. The Tribunal can only make an order in accordance with the Dividing Fences Act if it concludes that there is not a sufficient dividing fence: see section 6 (1) of the Act. In considering what constitutes a "sufficient" the Tribunal is to consider "all the circumstances of the case" including the matters specified in (a) to (g) of section 4. When the location of a dividing fence is considered, it is desirable that fence be on the common boundary: see Ahern v Havler (ownership to 7) NZ LR 245 per Tompkins J at 246 (referring to New Zealand legislation). However, to place the dividing fence on the surveyed boundary line may be impractical, as is specifically recognised by the provisions of s.11(2)(a) of the Act.
14. In Purcell v Chadwick (2018) NSWCATAP 250 the Appeal Panel at [36] said: … Whether a particular encroachment is such as to render the fence insufficient, within the meaning of the Act, requires a consideration of the nature and extent of any encroachment. In this regard, it seems to us that some deviations from the boundary lines are permissible and would not justify a conclusion that any existing fence, in a good state of repair, was otherwise insufficient. For example, it is self-evident that minor deviations in the boundary line or deviations in the boundary line due to varying widths of fencing materials would not usually render a fence insufficient".
15. In considering all the circumstances, the Tribunal notes that there is a new fence erected which is not erected wholly on the surveyed boundary line between the two properties. This is in part, due to old encroachment of the WC.
16. However the fence divides the properties. The fact that it is not on the dividing line is the consequence of the parties agreeing to build a new fence along the same line as the existing fence. This was agreed despite the appellants concerns that the old fence might not be wholly on the boundary and keeping that from the respondents, as well as that they had been to the Council about those concerns. Had they raised such issue at the outset, their current application would have been unnecessary. But the appellants chose not to reveal their concern and instead agreed to the course which was taken; building a new fence along the old fence line.
17. The appellants also have asserted that the encroachment was a deliberate act of the respondents. There is no evidence to justify such an assertion. Further, bearing in mind that the appellants were provided all quotations for the new fencing, and were invited to select which quotation they approved of, their claim of untoward conduct by the respondents is baseless.
18. The Appeal Panel considers that the new fence constitutes a "sufficient fence". Having made such finding, it has no power to make any order that the fence be amended. Even if it did so, it would direct that the appellants meet the cost of such work pursuant to section 7(2) of the Act, because the appellants will be seeking a dividing fence "of a standard greater than the standard for a sufficient dividing fence".
19. The Appeal Panel confirms that the Member accurately recorded the law, that as there exists a sufficient dividing fence, he had no power to hear and determine the appellants' application.
20. Therefore despite the fact the Appeal Panel has found that there was a procedural irregularity that amounts to a failure to afford procedural fairness, the Appeal Panel declines to set aside the decision of 21 November 2018 as it was correct and remitting the matter for redetermination would lead to the exact same outcome. To remit this matter on the basis of the procedural unfairness would be futile.

Orders

1. After deciding to deal with this internal appeal by way of a new hearing, the Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The decision under appeal is affirmed.

Costs

1. Given this outcome, the Appeal Panel is of the view that each party should bear their own costs of the Appeal. If either party wishes to be heard against this order, they must, within 14 days of the date of these orders, make a cost application to the Appeal Panel including their attitude to the Appeal Panel dispensing with a hearing on costs and dealing with the question of costs on the papers: s.50 of the Civil and Administrative Tribunal Act. The application and submissions must address special circumstances as set out in s.60 of the same Act.
2. If an application for costs is made, the other party may, within 28 days of the date of the orders, provide written submissions opposing the cost application including the matters raised in ss.50 and 60 of the Civil and Administrative Tribunal Act as above.

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 May 2019