Magiros v Niven

APPLICATION

1. On 3 June 2016 the applicant filed an Application to the Local Court seeking orders for the fencing work proposed by the Notice. The application refers to a Notice under section 11 of the DFA served on the respondent on 18 February 2016 and attaches an unsigned and undated copy of the Notice. It appears that the Notice is a copy of the First Notice and the Notice.
2. On 3 August 2016 the applicant served an amended Notice to Carry Out fencing ("Amended Notice") on the respondent's solicitor.
3. The Amended Notice altered the description of the proposed fencing work to (the deletions from the original proposal are struck through and additional words underlined for ease of reference): Length of fence: 62 Metres Height of fence: 1.3 metres from the high side finished ground level on street side of houses 1.8 metres between houses 1.5-1.8 metres south of house (as per diagram) Type of fence: Rendered brickwork-Glass/Slat panels above as per attached diagram Permission is given to access property in order to demolish existing fences where indicated on attached diagram and reconstruct new fences/retaining walls including shoring of loose earth as required during the construction process. Underground drainage along the high side of the fence, to be drained into stormwater discharge from 42 ********** Ave Burraneer. Temporarily relocate existing services including gas bottles, electricity and water as required then re-instate at completion of works. Minimum of 48 hours prior to any activities related to disruption of water/power/gas at #40 ********** Ave. No further disruptions to Electricity, Gas or water are anticipated during the building of the fence. Reinstate any gardens damaged during demolition and reconstruction of wall. The existing fence between the houses will be strengthened on our side Concrete and steel and a rendered blockwork wall will be extended above to finish at 1800 above finished ground levels at #42. Wall to be rendered and painted as required on western side and top. Demolish and rebuild above ground (as per finished level at $42) as part of existing block wall south of the South Eastern Column on #42 into backyard, height of block work to be the same as existing wall, with glass panels added as per attached diagram. Wall to be rendered and painted as required on western side and top. Wall and glass to be finished in a way that is 100% swimming pool compliant on both sides, please see diagram attached with details. Planter boxes with appropriate native plants to help screen only up to maximum of the glass height. Anterior Area south of pool area: existing block work to be removed and replaced with new block wall as per diagram attached, wall to continue right to the edge of the cliff. from ground level up (Based on finished ground level at #42) and replaced with new block wall as per diagram attached, wall to continue right to the edge of the cliff. Wall to be built on #42 side of the boundary. Wall to be aligned with boundary. Temporary fencing to be installed and maintained to secure and control access to property and comply with all work and safety requirements. Replace, install and/or make good any damaged pavers, tiles, bricks, windows or other ancillary damage to property that results as a direct result of the demolition/reconstruction work.
4. On 27 September 2016 Magistrate Skinner of the Local Court directed that the matter be transferred to the Tribunal.
5. On 10 March 2017 the applicant served a further amended notice to carry out fencing work on the respondent ("March 2017 Notice") and sought to amend the Application.
6. The March 2017 Notice described the proposal as: Proposal: 42 ********** Ave Burraneer NSW 2230 See Attached Diagrams and Development Consent: Modified Development Consent No. MA16/0418 Approved on 7 March 2017; Fence East Elevation 7 Feb 2017 F1o Fence Cross Sections 17 Feb 2017 FENX2 Fence Panel Designs 12 DEC2016 FEN1 Properties affected (street address) 40 ********** Ave Burraneer NSW2230 owned by Audrey Niven and 42 ********** Burraneer NSW 2257 owned by Harry & Helen Magiros Position of fencing work (as shown on attached diagram) 40 ********** Ave Burraneer NSW2230 Audrey Niven… Fencing work proposed to be carried out Length of fence: 62 Metres Height of fence: Varies between 1.2m - 1.8 m (as per attached approved plans) Type of fence: Section E01 Rendered Blockwork with louvered panels Section E02, E03, E04 Rendered Blockwork/Concrete Section E05, E06 Rendered Blockwork/Concrete (Glass panels removed as per council request, Height of finished rendered wall to be raised to 1.2m from finished ground level @ Rutherford Ave Burraneer Section E07, E08 Rendered Blockwork/Concrete with glass above Permission is given to access property in order to construct new fences No further disruptions to Electricity, Gas or water are anticipated during the building of the fence. Temporary fencing to be installed and maintained to secure and control access to property and comply with all work and safety requirements. Replace, install and/or make good any damaged pavers, tiles, bricks, windows or other ancillary damage to property that results as a direct result of the demolition/reconstruction work. Estimated cost: Parties to pay 50% of the cost of a reasonable timber fence and the balance of the construction of the actual fence approved by Council is to be paid by the applicant
7. The applicant's amended application for orders in terms of the amended March 2017 Notice also includes a reference to the "Date notice under section 11 of the Dividing Fences Act was served on the respondent:23 May 2016. Amended Notices served by email on 3 August 2016 and 9 March 2017.

LEGISLATION

1. S 28 of the Civil and Administrative Tribunal Act 2013 ("CATA") provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
2. S 13 of the Dividing Fences Act 1991 ("DFA") confers jurisdiction on NCAT to hear and determine any matter arising under the DFA.
3. The general principles of the DFA are set out in s 6, which states: (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 or 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.
4. S 4 of the DFA sets out the requirements to make a determination of what is a sufficient dividing fence as follows: In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is 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), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901 , any order in force under section 18A of that Act.
5. S 3 of the DFA defines the term "fence" as: fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.
6. "Fencing work" is defined in the DFA at s3 as: fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing 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 adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.
7. S 4A of the DFA defines a "sufficient dividing fence" as: Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is 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), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act.
8. S 11 of the DFA provides: Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (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, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. (5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: (a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or (b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.
9. S 12 of the DFA provides for the procedure where agreement cannot be reached between adjoining land owners about a proposed dividing fence as follows: Procedure when agreement not reached (1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work). (2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.
10. S 14 of the DFA sets out the orders that can be made in respect of an application for fencing work: Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a)the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife. (2)The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.

JURISDICTIONAL ISSUE

1. The application was heard by the Tribunal at Kogarah Court on 15 March 2017 and the decision was reserved.
2. On 4 April 2017 the Tribunal directed the parties to make further submissions in regard to two issues of jurisdiction. That is: 1. Whether the Tribunal has jurisdiction to determine the matter in circumstances where the applicant commenced proceedings before the expiration of a month after serving a section 11 notice on the respondent; and 2. Whether the Tribunal has jurisdiction to determine the matter in circumstances where the applicant seeks to rely on an amended notice.
3. On 4 April 2017 the Tribunal also directed that the applicant file with the Tribunal and serve the respondent written submissions of no more than 5 pages addressing the Tribunal's jurisdiction In respect of the issues identified on or before 19 April 2017. The respondent to respond by 3 May 2017 and the applicant reply by 10 May 2017. On the applicants application the Tribunal extended the time for compliance with the directions for the applicant to file and serve his submissions until 3 May 2017, the respondent until 17 May 2017 and any applicant reply to 24 May 2017.
4. On 3 May 2017 the applicant filed his submissions.
5. On 10 May 2017 the respondent filed her submissions.
6. On 26 May 2017the applicant filed his submission in reply. Leave is granted for the late filing of the applicant's submission in reply.

FIRST JURISDICTIONAL ISSUE: Was the application filed prematurely?

Applicant's submissions

1. The applicant accepts that, in order for the Tribunal to have jurisdiction and notice to carry out fencing work that satisfies the requirements of section 11 of the DFA was required to be served on the respondent: Larney v Johannson [2013] NSWCA 409 ("Larney").
2. The effect of a notice to carry out fencing work has a dual purpose, firstly to seek a contribution by an adjoining owner to the cost of fencing work proposed to be erected on a common boundary and, secondly, as the basis under section 12(2) of the DFA for an order determining the manner in which the fencing work is to be carried out: Larney at [65].
3. For a notice to carry out fencing work to be valid it must contain the requirements of section 11, that is: 1. The boundary line on which the fencing work is proposed to be carried out; 2. The type of fencing work proposed; 3. The estimated cost of the fencing work.
4. Section 11 (3) permits the land owner to stipulate in the notice to carry out fencing work the proportion in which the proposed fencing work is to be borne if other than in equal proportions.
5. The applicant contends that he served a notice to carry out fencing work, complying with section 11 on or about 8 March 2016, three months before the proceedings were commenced in the Local Court on 3 June 2016.
6. The applicant submits that from the time of the purported First Notice until 3 June 2016 when the application was filed in the Local Court, the parties continued to negotiate in an attempt to reach an agreement as to the proposed fencing work. The applicant contends that the reason for the requirement under section 11 that an application for fencing orders not be filed until a period of one month has elapsed after the service of a notice is to give effect to the intention of the legislation that the parties have an opportunity to agree on the proposed fencing work before an application is made for fencing orders.
7. The fact that the First Notice did not refer to section 11 of the DFA does not invalidate as it addressed the elements required under section 11 (2) and (3) of the DFA.

Respondent's submissions

1. The respondent contends that the First Notice was deficient in compliance with section 11 of the DFA in that it did not specify the type of fencing work proposed to be carried out, as defined under section 3 of the DFA meaning, inter alia, " design, construction, replacement, repair".
2. The fencing work proposed in the First Notice is substantially different from the fencing work in the Amended Notice.
3. The respondent contends that by this deficiency the First Notice is defective by its failure to specify the fencing work proposed.

Applicant's submission in reply

1. The applicant contends that the First Notice contained detail of the proposed fencing work details in both words and by reference to an attached plan. The applicant contends that the First Notice is identical to the Notice and that the applicant's reliance on a Further Notice amending the proposed fencing works after the filing of the application is not relevant to the validity of the notice served under section 11.
2. The applicant further contends that the Tribunal has broad powers under section 53 of the Civil and Administrative Tribunal Act 2013 ("CATA") to permit amendments to any documents, including an application or appeal to the Tribunal. It would be a perverse consequence if the amendment of a notice after commencement of the proceedings would have the effect of rendering the proceedings unlawful without having complied with section 11.
3. The fencing works proposed in the First Notice and the Notice, were different to the fencing works now proposed in the Further Notice. The applicant contends that those works have less impact on the respondent than what was originally proposed. That reduced impact is as a result of the applicant's amendments to the Further Notice and as a result of the section 96 modification processes, taking into account the respondent's submission by the Council during its determination to approve the works.

Applicant's submissions

1. The applicant seeks an extension of time to make the application that was originally filed with the Local Court pursuant to section 41 of CATA.
2. The applicant contends that the Tribunal has jurisdiction to hear and determine the application pursuant to section13 of the DFA. The application now before the Tribunal is an application within the meaning of section 39 of the CATA. It is also an application that the Tribunal has the jurisdiction to hear and determine and that section 41 of the CATA grants the Tribunal the power to extend time for doing of anything under any legislation (under which the Tribunal derives its power).
3. The applicant submits that it is appropriate for the Tribunal to extend the time for making of the application as it is consistent with the guiding principle for the Tribunal proceedings under section 36 of CATA.
4. The applicant further submits that the respondent had ample notice of the applicant's intention to carry out fencing works before the proceedings were commenced and that the parties had been actively engaged in negotiations regarding the condition of the existing dividing fence. The Notice upon which the application to the Local Court was in identical terms to the First Notice served on 8 March 2016.
5. The applicant contends that if the Tribunal finds that there was no valid notice given at least one month before the application was filed and does not extend the time for making the application then the applicant will need to commence fresh proceedings. If so, then considerable time and financial resources of the parties and Tribunal will have wasted.

Respondent's submissions

1. The respondent submits that it is not apparent from the applicant's submission whether he is seeking an extension of time regarding the application filed on 7 June 2016 or to the proposed amended application served on 3 August 2016.
2. In any case, the respondent says that the applicant's submission that the Tribunal has the power to extend the time for serving a valid notice under section 41 is misconceived. The issue is that not enough time has passed as required under the DFA before commencing the proceedings. Section 41 of the CATA is limited to the power to extend the time for a person to do something. It does not extend to the power to permit an application served prematurely to be treated as though it has been served after the requisite time has passed.
3. The respondent has incurred significant costs because the applicant prematurely commenced proceedings with an application that bears little resemblance to the application ultimately relied upon before the Tribunal at the hearing on 15 March 2017. It was only on 7 March 2017 that the applicant received approval for his modified development approval from Sutherland Council resulting in the applicant serving a Further Amended Notice on 10 March 2017.
4. Despite the applicant's submissions, the respondent submits that the applicant has had no regard for the inconvenience and prejudice his actions have caused the respondent. He has had no regard to the respondent's age and frailty and has recklessly proceeded with multiple notices to carry out fencing work and prematurely proceeded to destroy parts of the existing fence.

Applicant's reply to respondent's submissions

1. To clarify the extension of time the applicant seeks he submits that it is for an extension of time to make the application that was originally field with the Local Court on 3 June 2016.
2. If the Tribunal is not satisfied that a valid section 11 notice has been served, the applicant seeks an extension of time for the filing of the originating process so that it is deemed to have been filed one month after the service of the Notice on 23 May 2016.
3. Further, the applicant contends that the application before the Tribunal has been amended that reduces the extent of the fencing work and the impact on the respondent. The applicant believed at the time of commencing the application in the Local Court that he had development approval to build the fence. It was after the proceedings were commenced that he became aware that he was required to have development approval for the proposed fencing works. A section 96 application to modify his original development approval was lodged with Council on 4 November 2017.

SECOND JURISDICTIONAL ISSUE: Whether the fencing notice can be amended?

Applicant's submissions

1. The applicant submits that at the hearing the applicant relied upon a second amendment to the Local Court application and the Fencing Notice dated 8 March 2017, served on the respondent on 10 March 2017 (the March 2017 Notice), not the amended Notice to Carry Out Fencing Work served on 3 August 2016.
2. The applicant accepts that there is no provision under the DFA to amend a notice to carry out fencing work; however, section 53 of the CATA provides the Tribunal with power to amend any document field in connection with the proceedings.
3. The applicant submits that the power to amend under section 53 is similar to section 64 of the Civil Procedure Act 2005 ("CPA"), which permits a court to order that any document in proceedings be amended, at any stage of the proceedings, and is subject to the overriding purpose in s56 of the CPA being the same purpose as in s36 of the CATA.
4. Further, courts exercising the power under s 64 of the CPA are required to consider the nature and degree of any prejudice that may be suffered by the grant or refusal of the application: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207. Justice to the applicant in permitting an amendment is to be balanced against injustice to the respondent and also requires regard to the overriding purpose and to the efficient and timely disposal of the proceedings. Where a late amendment to pleadings is sought, an explanation for the delay is required: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
5. Similar considerations apply to exercise of the power under s53 by the Tribunal. The applicant contends that the interests of justice in this case to amend the application are served because: 1. The initial amendment to the application dated 3 August 2016 proposed a sprayed concrete solution rather than rebuilding the wall in one section and deletion of retaining walls; 2. The subsequent amendment arose out of a s96 modification of the grant of development approval after the Council took public submission about the proposal; 3. The delay in serving the second amendment was caused by the delay in considering and determining the s 96 application by the Council. The s96 application being made on 4 November 2016, the Local Court hearing having been on 27 September 2016; 4. The amended works have less impact on the respondent; 5. The respondent has had ample notice of the amendments prior to the hearing.

Respondent's submissions

1. The respondent submits that the applicant served on the respondent: 1. a Fencing Notice on 23 May 2016; 2. an amended Notice on 3 August 2016; 3. a Further amended Notice on 10 March 2017 (the March 2017 Notice).
2. The applicant based his case on the March 2017 Notice.
3. The respondent submits that the Tribunal has jurisdiction to determine any matter that arises under the DFA (section13 (1)). The Tribunal's power to determine whether it should make an order for fencing work to be carried out is enlivened by the service of a valid Notice by a land owner on an adjoining land owner. The DFA does not contemplate the service of multiple and different notices. The Tribunal's power are limited to the powers that parliament confers on it and has no inherent jurisdiction or general responsibility for the administration of justice.
4. Once the Tribunal's powers are enlivened by the commencement of proceedings after a land owner has served a valid s 11 notice and one month has passed, it has discretionary powers to amend any document filed in connection with the proceedings. Pursuant to s 53 of the CATA.
5. The respondent contends that the evidence shows that she advised the applicant as early as 9 March 2016 that the applicant was required to have council approval to commence works on the dividing fence; regardless, the applicant proceeded to cause damage to the fence and commenced the proceedings prematurely.
6. The March 2017 Notice, served a few days before the hearing on 15 March 2017 is significantly different to what was contemplated in the previous notices.
7. Even if the Tribunal finds that the proceedings have been validly brought, then the respondent submits that the discretion to determine the applicant's application to amend should be exercised in favour of the respondent and the application should be refused.

Was the application filed prematurely?

1. S 13 of the DFA confers jurisdiction on the Tribunal to hear and determine matters arising under the DFA.
2. The purpose of the DFA is set out in its preamble. That is, it is "An Act to provide for the apportionment of the cost of dividing fences".
3. However, s 14 of the DFA allows the Tribunal to make an order in any one or more of the following: 1. the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, 2. the fencing work to be carried out (including the kind of dividing fence involved), 3. the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, 4. which portion of the dividing fence is to be constructed or repaired by either owner, 5. the time within which the fencing work is to be carried out, 6. the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, 7. that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.
4. The Tribunal's jurisdiction is enlivened by the procedure set out in Part 3 of the DFA.
5. That procedure requires mandated steps to be taken: 1. Firstly an adjoining land owner is required to serve a notice in writing on the other adjoining land owner to contribute under the DFA to the carrying out of fencing work; 2. The notice must specify: 1. 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, 2. the type of fencing work proposed to be carried out, 3. the estimated cost of the fencing work. 1. The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions, if so the notice must state the proposed proportions. 2. Secondly, if the adjoining land owners do not agree within one month after one of them has served a notice under s11, as to the fencing work to be carried out, either owner may apply to the Local Court of the Tribunal for an order determining the manner in which the fencing work is to be carried out.
6. If there has been no valid notice served in accordance with the DFA then any application filed in reliance on the notice is misconceived. The Tribunal's jurisdiction can only be enlivened with an application brought under s 12 of the DFA after the passing of a period of month after service of a valid notice.
7. The Tribunal confirms that the effect of a notice to carry out fencing work has a dual purpose, firstly to seek a contribution by an adjoining owner to the cost of fencing work proposed to be erected on a common boundary and, secondly, as the basis under section 12(2) of the DFA for an order determining the manner in which the fencing work is to be carried out: Larney at [65].
8. The applicant's evidence is that on 7 March 2016 he "caused an email to be sent to Mr Tony Parks of Parkvoy Constructions, the builder of the proposed fencing works, which attached a fencing notice pursuant to section 11 of the Dividing Fences Act 2001 (sic) (NSW) which he caused to be sent to the respondent's daughter Vicki Weeks, and also handed to them on several occasions".
9. There is no other evidence before the Tribunal as to the service of the First Notice.
10. S. 21 of the DFA stipulates that: A notice under this Act is to be served on an adjoining owner by delivering it personally or sending it by post to the owner's usual or last known residential or business address.
11. The Tribunal is not satisfied that the First Notice has been served in accordance with the DFA.
12. On 23 May 2016 the applicant's solicitor served the Notice on the respondent's solicitor. That Notice was in the exact terms of the First Notice. The Tribunal infers that the serving of the Notice again by the applicant's solicitor was an attempt to rectify the defective attempt at service through the applicant's builder.
13. The Application to the Local Court filed on 7 June 2016 by the applicant for fencing orders: 1. On the Grounds that: 1. the applicant has served on the respondent a notice under section 11 of the DFA requiring the respondent to contribute to the carrying out of fencing work and that a copy of the notice is attached to the application; 2. one month has expired and no agreement has been reached as to the fencing work to be carried out; 1. Identifies that "Date notice under section 11 of the Dividing Fences Act was served on the respondent: 18 February 2016".
14. Although not critical to the validity of the notice, the copy of the notice attached to the application is undated and unsigned by the applicant, so of no assistance in establishing the date of the notice.
15. There is no evidence before the Tribunal that there was any other notice to carry out fencing work served on the respondent on 18 February 2016.
16. On the face of the Application, it has been brought on the basis of a notice to carry out fencing work served on 18 February 2016. There is no evidence before the Tribunal of service of such a fencing notice.
17. Without service of a notice to carry out fencing work on 18 February 2016 then the Application has wrongfully brought as the jurisdictional threshold of the Local Court or the Tribunal has not been reached.
18. If the Tribunal is wrong in such a determination and the Notice served on 23 May 2016 is the basis for the Application, then the Application has been brought prematurely as the Application was filed on 7 June 2016, some 15 days after that service. An application cannot be filed until a period of one month has passed after service of a notice. Again the Local Court or the Tribunal's jurisdictional threshold has not been reached.
19. If the Tribunal has jurisdiction then the discretion under s 41 of CATA is available to the Tribunal to extend the period of time for doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
20. Unless and until the Tribunal has jurisdiction it is not enabled to exercise discretion under s 41 to extend or vary time.
21. Without jurisdiction, the Application cannot be heard and determined by the Tribunal.

Whether the fencing notice can be amended?

1. In the applicant's submission he accepts that there is no provision under the DFA to amend a notice to carry out fencing work, but relies on s 53 of the CATA that the Tribunal may make any amendments to any document filed in connection with the proceedings if the Tribunal considers the interest of justice are served by doing so.
2. After commencement of the proceedings on 7 June 2016 the applicant sought to amend the notice to carry out fencing work on two occasions, firstly on 3 August 2016, with the Amended Notice, and then on 10 March 2017 with the March 2017 Notice.
3. The Tribunal has found that the Application filed on 7 June 2016 was either misconceived as it was based on a notice of which there is no evidence of service or based on the service of a notice 15 days before the Application was filed and as such the Local Court and the Tribunal have no jurisdiction to hear and determine the Application.
4. With no jurisdiction then the Tribunal is unable to give consideration to amending the notices under section 53 of the CATA.
5. If the Tribunal is wrong in that determination, then the Tribunal now considers whether, in the circumstances of an application under the DFA a notice to carry out fencing work is capable of being amended if the proceedings have otherwise been validly instituted.
6. As stated previously, the effect of a notice to carry out fencing work has a dual purpose, firstly to seek a contribution by an adjoining owner to the cost of fencing work proposed to be erected on a common boundary and, secondly, as the basis under section 12(2) of the DFA for an order determining the manner in which the fencing work is to be carried out.
7. The legislative intent of the DFA dispute resolution procedures in Part 3 of the DFA by the requirement of the service of a notice to carry out fencing work is to put an adjoining land owner in a position of being fully informed of proposed fencing work to be carried out by the adjoining owner. When they are fully informed they can then consider the proposal to determine whether they agree with it, attend a Community Justice Centre to mediate a resolution or engage in negotiations to attempt to reach a compromise resolution. If an agreement is not reached then after the passing of one month from the time of service, an application can be made for a determination by a Local Court or the Tribunal. This procedure confers jurisdiction on the Local Court or Tribunal.
8. The effect is that a notice to carry out fencing work cannot be merely amended to reflect the adjoining owner's organic fencing proposals. The intention of the legislature is that the other adjoining owner is given a period of month after service of a notice to consider a proposal as set out in a notice. If no agreement is reached then the remedy of filing an application based on that notice to carry out fencing work is available to either party.
9. As a result, a notice to carry out fencing work cannot be amended unless by agreement between the parties. If an application is made to the Local Court or the Tribunal, the notice to carry out fencing work underwrites the application having precipitated the dispute resolution mechanism. It is unique to the application based upon it. If an owner intends to change the proposed fencing work or the contributions being sought from the adjoining owner then a new notice to carry out fencing work incorporating the amendments must be served and a period of one month passes after service before another application can be made.
10. Even if the notice to carry out fencing work was valid, the applicant cannot amend it to suit changing circumstances, at best, if the Local Court or the Tribunal otherwise has jurisdiction, the Application may be amended, but not the notice to carry out fencing work.
11. Although the Tribunal has heard the merits of the application, it makes no determination as there is no jurisdiction to make a determination.

ORDERS 1. The Tribunal Orders that the Application is dismissed. P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 22 June 2017

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: 25 August 2017