Louridas v Askander

Notice of Appeal

1. The Notice of Appeal states that the appellants are appealing order 1(b) set out above. However, it is clear that the appellants are appealing all of the orders. They say that the orders the Appeal Panel should make are: 1.The applicant [that is the appellants] will cause the undertaking of the following work in a proper and workmanlike manner on or before 16 October 2021 (by engaging a suitably qualified tradesperson to carry out the works) Work Order (a) Replace the timber used at the bottom of the fence panels to ensure H4 Timber or higher which are suitable for below ground use. (Please refer to AS1684.2 Residential Timber Frame Construction. (b) The timber is to be replaced from the Point in the Survey Report of Toni Lei 29 October 2020 marked "NAIL IN CONC." at the top of the narrow end of driveway (near FCE (0.14) OVER), until the front of the boundary fence of No 27. (c) To restore the fence to the correct boundary line as per the Survey Report of Tony Lei 29 October 2020 (d) The respondents will pay for the cost of the works.
2. The grounds of appeal are stated as: Work order (a) states, "Replace the timber used at the bottom of the fence panels to ensure H4 Timber or higher which are suitable for below ground use. (Please refer to AS1684.2 Residential Timber Frame Construction" The work order does not deal with the timber all the way to the end of the narrow section of the driveway as circled in the Survey of Tony Lei. Please see attached where the timber should be replaced to, (circled with asterisks, to the end of the narrow section of the driveway). The building defect report of David Hall, dated April 20, states that 'there are no similar markings on fence panels that are of H4 timber" and the wooden panels are all the way to this point in the driveway. Furthermore, the work order does not deal in any way, with the numerous encroachments as per the survey report of Tony Lei dated 29 October 2020 and makes no order with regard to the Dividing Fences Act 14 (1) (a ) 'Orders as to fencing work". Therefore dividing fence is not sufficient in accordance with Dividing Fences Act 1991 No 72, 4(c). 'Other concerns' being 3 encroachments and these are not dealt with this in the Notice of Order. Dividing Fence Act 18 (1) states that for the purpose of carrying out fencing work, the common boundary is to be defined by a registered surveyor. The common boundary is not in dispute and 3 encroachments is far too many and the fence needs to be rectified to its correct boundary.

Reply to Appeal

1. The respondents filed a Reply to Appeal on 16 July 2021. They support the orders as originally made, and note the following principal matters.
2. First, they now have reports from two fencing companies that states that the timber at the bottom of the fence is in fact H4 grade timber.
3. Secondly, there are various encroachment points which occur on both properties. They say that the appellants' encroachments are much more evident on their property, and that reinstating the boundary would actually benefit them more as it would result in gaining back a notable portion of land.
4. Thirdly, the dividing fence is relevant to both properties, not only the appellants'.
5. Fourthly, they do not wish to change the fence line, as it has stayed the same for over thirty years, and does not serve as a significant detriment to either party.
6. Fifthly, they have not moved the fence line since originally purchasing the property.
7. Sixthly, and significantly, they have already complied with the Tribunal order.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. The appellants' principal ground of appeal, developed in their submissions is that they were denied procedural fairness in the conduct of the hearing.
3. This is an error of law (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at 13) and therefore leave to appeal is not required.

Submissions in support of a Stay, 2 July 2021

1. There is some relevant material in the appellants' submissions in support of a stay. In those submissions, prepared by their son Peter Louridas, the appellants state: By way of background, one reason the Application for a Stay should be granted, is that the Orders 'by consent', were the result of a hasty and hurried mediation at the end of a 90 minute hearing that my parents could not listen to (it was requested my phone go off speaker because of background noise). Agreements were made under duress and important legal issues were overlooked, in particular, the numerous encroachments as per the survey. The time pressures that were put on us made it difficult to reach an effective conclusion in a few chaotic minutes, as I tried to get instructions from my parents, while trying to listen to the Respondent and Tribunal Member. Later that afternoon, after I emailed my elderly parents the Notice of Order, after several hours of reassessment, my parents came to the conclusion that they should have allowed a legally binding decision to be made, based on the Dividing Fences Act, by the tribunal member, based on the evidence presented and heard. They do not agree to the orders, as they stand.
2. The appellants also say that:

• the Tribunal orders make no reference to the poor quality timbers all the way to the end of the narrow section of the driveway, and only refers to a portion of the driveway;
• the Tribunal does not deal in any way with the numerous encroachments set out in the report of survey report of Tony Lei dated 29 October 2020;
• the Tribunal made no orders under s 14(1)(a) of the Dividing Fences Act;
• the common boundary is not in dispute and three encroachments is far too many;
• the appellants, not the respondents, should undertake any works, and that "in building a fence that is not sufficient and with reckless disregard, a lack of trust has ensued".

Submission in support of Appeal, 2 August 2021

1. These submissions are eight pages in length and very detailed. We summarise the principal matters raised as follows:
2. First, Peter Louridas, who was representing the appellants at the hearing, "mistakenly, but understandably" believed that the Tribunal Member was not going to make a work order. He should never have agreed to engage in a "rushed mediation" and "should have relied on the Tribunal Member to make the decision".
3. Secondly, "[i]n a chaotic few minutes, supposed agreements to consent orders were made "under duress and important legal issues were overlooked".
4. Thirdly, as Mr Louis Louridas was not able to listen to the hearing, as the Member instructed his son to turn the speaker on his phone off because of background noise, "it's ridiculous to think that I could have consented to make an informed decision", and therefore he was denied procedural fairness. He says that had he been able to listen to the hearing, he could have instructed is son to allow the Tribunal Member to make orders in accordance with the law.
5. Fourthly, the appellants object to the respondents being able to rely on the new evidence of the fencing companies. They say if that material had been available at the Tribunal hearing, there is "no way", that any agreement would have been made, and it is "absurd" to think otherwise.
6. Fifthly, the fence is not sufficient and the orders inequitable. The orders need to reflect the fact that fence is not sufficient, which is a problem caused by the respondents, and "the only way to guarantee a sufficient fence is if [the appellants] cause the work to be undertaken".
7. Sixthly, the appellants should cause the undertaking of the works at the entire costs of the respondents because: Tradespersons employed by the Respondents, quite simply, can't be trusted to undertake repairs in a proper and workmanlike manner. The Respondents have complained many times in an affidavit about my interference and queries with regard to concerns I raised over the fence. Part of this affidavit is on page 35. It states, "the Applicant would always raise issues or complaints". These concerns have been validated with the fact that a fence that looks horrendous has been built. Not only that, the builders employed took far too many liberties during access. They had gravel on the driveway put there without notice and told my daughter to wait while their trucks were there, as per her affidavit on page 34 and photos on page 20. If further problems are to be avoided then I can't have an incompetent and rude builder on my property. They never gave reasonable notice of their intentions at any time they entered the property.
8. Finally, the appellants ask to be reimbursed $935.00, which is the cost of the survey report they obtained.

Submissions filed 18 August 2021

1. These submissions may be summarised as follows.
2. First, in relation to procedural fairness:

• the appellants elected a representative, their son, to speak on their behalf, which occurred;
• the Member outlined jurisdictional limits and other issues arising from the claim brought;
• the Member allowed the parties to discuss matters, which also occurred;
• the Member exerted no pressure to agree to any particular outcome, but an outcome was agreed and orders were made;
• if different orders were sought, or there was an objection of any kind, there was every opportunity to raise it;
• one cannot merely rely on mistaken understanding or erroneous assumption as a basis for why an agreement was reached, or why no further submissions were raised.

1. Secondly, they have complied with Council guidelines and a Final Occupation Certificate granted.
2. Thirdly, the proposed orders sought by the appellants have no legal or factual basis or justification.
3. Finally, and in summary, the evidence shows that:

• the fence is of good quality, that is compliant with all relevant standards and in compliance;
• the fence and all inclusions were inspected and approved by Council and all works were with Council approval done compliantly and of good quality resulting in an occupation certificate;
• the timber sleepers are H4 grade, confirmed and verified three times independently;
• it was the late service of evidence by Mr Louridas that resulted in the quality of timbers not being known until later date and the uncertainty as to whether that evidence was to be accepted, which we say should not have been, prejudicing our position;
• any encroachment was not created by them, but existed long before they owned the house;
• Mr Louridas' encroachment is far greater and there is no reason why any costs should be borne exclusively by them in any rectification of the boundary, should the Tribunal make any such orders;
• Mr Louridas has made multiple attempts to intimidate the respondents. He berated their construction workers and said the timber sliders were "ugly". He threatened to "tear down the fence" if they did not listen to his requests of omitting timber entirely from the construction of the fence;
• the respondents have made countless efforts to build their fence in compliance with Council guidelines. If Mr Louridas insists on the respondents rebuilding the fence then they propose to choose the contractor, supervise and manage the process and that Mr Louridas pay for the fence build in full, as they have already paid upwards of $9,000 to build the fence.

Appellant's submissions in Reply

1. These submissions were filed on 2 July 2021. These may be summarised as follows.
2. First, while he authorised his son Peter Louridas to represent the appellants, Mr Louis Louridas did not expect that he would not be listening to the hearing at all, and this stopped him from giving informed consent to any orders.
3. Secondly, no agreement would have ever been made with regard to timbers if there was dispute as to the quality of the timbers.
4. Thirdly, the orders were inequitable and have no regard to the dilapidation of the new fence and the new fence not being centred on the correct boundary, causing day to day problems in use of the driveway.
5. Fourthly, the "new, existing dividing fence" is not sufficient for the reasons set out over pages 1 and 2 of the submissions.
6. Fifthly, the appellants hope that the Appeal Panel will examine the merit of an appeal based on the difficult circumstances of the Tribunal hearing and determine whether or not the fence is sufficient.
7. In summary, the appellants submit that the Tribunal orders came about as a result of miscommunication during the hearing and an inability to listen to the hearing and provide accurate instructions. They say the orders are inequitable and that the Appeal Panel should acknowledge this and because of the dilapidation of the new fence and positioning of the fence in relation to the boundary, making access more difficult, declare the fence is not sufficient and that any repair work is done by the appellants at the expense of the respondent and be centred on the correct boundary.

Legal principles in setting aside consent orders

1. A consent order of the Tribunal is an internally appealable decision as defined in s 32 of the NCAT Act: see Jones v Dempsey [2015] NSWCATAP 28 at 23] (and generally at [20] to [25]) and Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110 at [29].
2. Accordingly, the Appeal Panel has jurisdiction to hear the appeal.
3. In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 the High Court of Australia stated at 243-4, in relation to a consent order and its liability to be set aside: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf. Halsbury's Laws of England, vol. 26, 2nd ed., pp. 84, 85); but there is a dictum of Lindley L.J. which is distinct enough: ". . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good": Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895) 2 Ch 273, at p 280 . (at p244)
4. This guidance was referred to by the Appeal Panel in Aboriginal Housing Office v Harrison [2021] NSWCATAP 97, a decision we found to be of considerable assistance. That was an appeal where the appellant landlord submitted consent orders should be set aside because, during the hearing, the Tribunal made an incorrect statement concerning the operation of the relevant legislation.
5. We paraphrase the relevant parts of that decision.
6. First, the consideration of whether the consent orders should be set aside arises in the context of the Tribunal facilitating discussions to narrow issues and explore settlement which resulted in the making of consent orders.
7. Secondly, when considering whether the conduct of the Member constituting the Tribunal is of a type which warrants the setting aside of orders made by that Member, the issue is one of "irregularity in procedure": Harrison at [38]; Gas & Fuel Corporation of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385 at 392.
8. Thirdly, it is necessary to determine whether the irregularity is such to warrant intervention: Harrison at [40]; and E. Rotheray & Sons Ltd v Carlo Bedarida & Co. [1961] 1 Lloyd's Rep 220 at 225: The more difficult question, however, is whether the extent of that irregularity is such as to justify interference by this court either by way of setting aside the award or remitting the award. The determination of that issue, as it seems to me, depends on whether the court is satisfied that there may have been - not must have been - or that this irregularity may have caused - not must have cause - a substantial miscarriage of justice that would be sufficient to justify setting aside or remitting of the award, unless those resisting the setting aside or omission could show that no other award could properly have been made then that which was in fact made, notwithstanding the irregularity."
9. Fourthly, a Member's conduct is to be considered in the context of the obligations imposed upon the Tribunal under the NCAT Act and the manner in which those obligations are performed, and considered in the context of the role or roles the Member is to perform.
10. Fifthly, where alternative dispute resolution processes are adopted and consent orders are consequentially made the Tribunal is required to comply with its statutory and other obligations imposed at law. Procedural obligations include: 1. affording the parties natural justice: s 38(2) NCAT Act; 2. acting with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4) NCAT Act; 3. ensuring the parties to the proceedings understand the nature of the proceedings: s 38(3)(a) NCAT Act; 4. if requested, explaining any aspects of the procedure of the Tribunal or any decision or ruling made by the Tribunal that relates to the proceedings: s 38(3)(b) NCAT Act; 5. ensuring the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(3)(c) NCAT Act.
11. Sixthly, the failure to comply with these obligations is to be treated as an irregularity (Harrison at [47]), the Tribunal being permitted to wholly or partly set aside a decision in proceedings when dealing with such irregularity: NCAT Act, ss 53() and (4); Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [12]-[13].
12. Seventhly, where an order is made by consent by the same Member who has assisted the parties in reaching a settlement agreement, this fact alone is not sufficient to give rise to an irregularity that might render such an order liable to be set aside. Rather, there must be some breach of the Tribunal's procedural obligations which would give rise to a substantial injustice that should be corrected.

Application of principles

1. The applicant's claims of a denial of procedural fairness may be summarised as follows.
2. First, the appellants complained of duress in their submissions, and that in "a chaotic few minutes, supposed agreements to consent orders were made under duress and important legal issues were overlooked".
3. We do not accept that the evidence establishes that complaint. That is because it is common ground that the hearing took approximately an hour and a half. The few extracts of the transcript provided by the appellants does not support a finding that agreement to the consent orders was made in "a chaotic few minutes". The portions of transcript provided are insufficient to inform us adequately of what occurred at the hearing.
4. In addition, the Appeal Panel noted in Sylvaney v Carolan [2016] NSWCATAP 36 at [40] that: … the threshold to establish duress is high and the doctrines of undue influence and unconscionable conduct require evidence that the party complaining about the agreement is either weaker or has a special disability … or was unduly pressured by a stronger party into an agreement where there was, for instance, little or no benefit to be gained by the weaker party.
5. What we have read does not suggest that the Tribunal imposing undue pressure on the parties to reach a settlement. This is not a case of bullying or intentionally preventing a party from presenting its case so as to give rise to circumstances justifying the setting aside of the consent order made (Harrison at [49]).
6. The second aspect of the denial procedural fairness was that the appellants were not able to hear what the Tribunal Member was saying, and therefore did not give an informed consent to the orders. Mr Louridas says that as the Member instructed his son to turn the speaker on his phone off because of background noise, "it's ridiculous to think that I could have consented to make an informed decision". In circumstances where his son was representing Mr Louridas, and communicating with him, we do not think that appeal ground is established. And Mr Louridas states in his submissions that he had the opportunity to discuss the issues which were raised during the hearing with his son, his son then conveying his father's consent to the Tribunal following that discussion.
7. In addition, Mr Louridas says that his son mistakenly believed that the Tribunal Member was not going to make a work order regarding the fact that the fence is not in line with the boundary. Again, we do not accept that the portions of the transcript relied on by the appellants establishes the basis for Peter Louridas coming to that conclusion.
8. In circumstances where the appellants accept that their son represented them at the hearing, but where he "mistakenly, but understandably" thought that an order was not going to be made under s 14(1)(a) of the Dividing Fences Act and should have relied on the Tribunal Member to make a decision, we are not persuaded that there is any error of law or failure of the Tribunal to meet its procedural obligations.
9. That conclusion is sufficient to dispose of the appeal, which should be dismissed. We make the following brief observations about the other relevant submissions made by the appellants.
10. First, the appellants object to the respondents being able to rely on the new evidence of the fencing companies. They say if that material had been available at the Tribunal hearing, there is "no way", that any agreement would have been made, and it is "absurd" to think otherwise.
11. As we propose to dismiss the appeal, it is not necessary to refer to any new or fresh evidence of the respondents. Suffice it to say, exceptional circumstances are required to warrant the Appeal Panel receiving fresh evidence on appeal, and we have paid no regard to that material.
12. Secondly, Mr Louridas stated during the appeal hearing several times that the fence is not sufficient. In circumstances where consent orders had been made in relation to the fence, we did not find that submission to be of assistance.
13. Finally, the appellants asked to be reimbursed $935.00, which was the cost of the survey report they obtained. As they were not successful on appeal, it is not necessary to consider that submission.

Orders

1. The Appeal Panel orders: 1. The Appeal is dismissed.

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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: 03 September 2021