Mehr v Lau [2022] NSWCATAP 15 | Case summary

NCAT Appeal Panel|2021-11-02

REASONS FOR DECISION

The dispute has a long procedural history in the Tribunal and the Appeal Panel.
This appeal concerns the fencing work to be carried out (including the kind of dividing fence involved) resulting from a decision of the Tribunal dated 26 March 2019; a successful appeal from that decision (dated 16 July 2019 - Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177 ("Mehr")); a remittal to the Tribunal and later decision dated 11 August 2020 (referred to by the Appeal Panel soon to be mentioned as the "First Decision"); a further decision of the Tribunal dated 9 September 2020 (referred to by the Appeal Panel next to be mentioned as the "Second Decision"); a further appeal decision dated 9 February 2021 (which varied some of the Orders made in the First and Second Decisions, but otherwise affirmed those Orders - Lau v Mehr [2021] NSWCATAP 26 ("Lau")); and a further decision of the Tribunal (the "Renewal Decision") resulting from an application by the respondents to renew the proceedings (the "Renewal Proceedings") on the basis of non-compliance by the appellants with the Tribunal's orders (as varied by the Appeal Panel).
This is the appeal brought by the appellants from the Renewal Decision.
For the reasons that follow the appeal is dismissed.

Grounds of Appeal

The appellants' grounds of appeal were expressed as follows: "1. Inconsistency between (the Renewal Decision) and the deeming effect of the Appeal Panel decision: (the Renewal Decision Tribunal) set aside decisions of the Appeal Panel and made orders inconsistent with the Appeal Panel's decisions. 2. Denial of procedural fairness and natural justice: (the Renewal Decision Tribunal) made unnecessary orders on matters that had already been decided by the Appeal Panel and did not consider the evidence before the (the Renewal Decision Tribunal), consequently denying natural justice and procedural fairness. 3. Issue of the necessary infrastructure for planting: the (the Renewal Decision Tribunal) did not suggest an alternative to the proposed support necessary for planting hedges on the boundary. 4. Lack of adequate reason: the (the Renewal Decision Tribunal) did not give an adequate reason for its decision that no infrastructure is needed for planting. 5. Failure to address matters: the (the Renewal Decision Tribunal) failed to address matters in the application for Renewal of Proceedings and thereby created confusion. 6. Lack of merit of the Renewal of Proceedings: Renewal of Proceedings is in contradiction to Clause 8(5)(b) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (hereinafter referred to as the "Act")."
Grounds 1 and 6, as developed in submissions, were essentially the same ground and shall be dealt with together. All grounds raised questions of law other than Ground 3. Leave to appeal is not required other than for Ground 3 for which we would have refused leave. Be that as it may it is simpler to explain, as we shall, why that ground would necessarily fail, the reasons for which are also relevant to our reasons for rejecting Ground 4.

Grounds 1 and 6

The appellants submitted that the Renewal Decision Tribunal did not have jurisdiction and could not make Orders 2 and 5 because those orders were inconsistent with the orders made in the First Decision as varied by the Appeal Panel.
The appellants also submitted that the renewal proceedings could not have been brought because there had been an appeal in the past and relied on the terms of Clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act").
We do not accept this submission.
Clause 8 of the NCAT Act says: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal - (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if - (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal.
Cl 8(2) says that if an order is not complied with a party may renew the proceedings.
Cl 8(4) says that in renewed proceedings the Tribunal may make any other appropriate order under the NCAT Act or enabling legislation as it could have made when the matter was originally determined (and there is no point taken that the orders made by the Renewal Decision Tribunal could not have been made when the matter was originally determined).
Of logical necessity, the new orders will be different to the original orders given that a party has refused to comply with the original orders. The new orders are a type of enforcement remedy when a party does not comply with (original) orders.
So much was said in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98, a case referred to by the Renewal Decision Tribunal at [40]. In that case the Appeal Panel described the operation of Cl 8 as follows (citations omitted): "26 The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders ... 27 The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. ... 28 By cl 8(2), cl 8 is engaged "[i]f an order has not been complied with within the period specified by the Tribunal". In those circumstances, "the person in whose favour the order was made may renew the proceedings". 29 "When proceedings have been renewed", the Tribunal has the powers set out in cl 8(4) (a) and (b). The Tribunal may: (1) "make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined" - par (a), or (2) refuse to make such an order - par (b). 30 The present appeal does not concern the Tribunal refusing to make any order, within par (b). 31 In the light of the terms in which cl 8(4)(a) is expressed, the Tribunal can make an order within par (a) if the following criteria are satisfied: (1) the order is "other" than the order originally made; (2) the order is "appropriate"; (3) the order is one that the Tribunal "may make … under [the NCAT] Act or enabling legislation"; (4) the order is one "as [the Tribunal] could have made when the matter was originally determined"." (Emphasis added)
The effect of cl 8(5) is to prevent renewal proceedings where an order not complied with is suspended, is the subject of an appeal (and therefore may be set aside or varied for example) or has been varied by an Appeal Panel (and the renewal proceedings assert that the original, unvaried order, was not complied with).
The words "has been the subject of an appeal" in cl 8(5)(b) do not mean that the order not complied with was merely considered in an appeal. If that were correct, then a party could fail to comply with an order and then prevent the bringing of renewal proceedings (and further orders) by bringing an unsuccessful appeal from that (original) order.
The words "has been the subject of an appeal" mean that if an order is varied or set aside or otherwise changed by an Appeal Panel, then renewal proceedings cannot be brought in relation to non-compliance with the original order for the obvious reason that the original order is no longer operative. However, if an order is considered by an Appeal Panel and is left undisturbed, then it has not relevantly been the subject of an appeal.
Further, if an Appeal Panel varies an order, then that varied order (which is the operative order) is not the "subject of an internal appeal". It follows, that if the varied order is not complied with, renewal proceedings may be commenced (with leave).

Ground 2

The appellants' submissions did not support the ground alleged - procedural unfairness - but instead advanced a different point, namely that the Tribunal erred in failing to give any weight to an expert report (that of Mr McArdle dated 11 June 2021) tendered by them.
The appellants cited Renda v Wu [2016] NSWCATAP 238 at [36]-[38] and [80] wherein references are made to various natural justice principles applying where a party is denied the opportunity to make submissions or call evidence.
The appellants submissions are misplaced. The Tribunal accepted the report into evidence but gave no weight to it for a number of reasons. Not giving weight to evidence tendered by a party is not procedural unfairness or a denial of natural justice. Those principles apply where a party is not given the opportunity to tender evidence.
In any event, no error is demonstrated in the Tribunal's reasons not to give any weight to the report. The Tribunal's reasons were: "32 Mr and Mrs Mehr seek to rely on a report signed by Michelle King and Jim McArdle of McArdle Ecological Arboricultural Consultancy dated 1 June 2021. The report states that Mr Mehr commissioned a screen planting assessment to provide recommendations for the instillation of boundary screening along the eastern boundary between (XX and XX Beecroft). It states that Jim McArdle, arborist attended the site for inspection and Michelle King prepared the report. The report at [1.3] states that the area proposed for planting is based on parent sandstone rock and the conditions are rocky with lack of sufficient soil for planting. The report explores two options for the proposed boundary. One being the instillation of a fence along planting. the boundary. The other being the instillation of a raised garden bed with hedge screen planting. 32(sic) The report does not indicate whether the writer was provided with the orders of the Tribunal or whether the writer was aware that the report was to be provided to the Tribunal. Nor does the report contain an acknowledgement of the expert witness code of conduct. A further difficulty for Mr and Mrs Mehr is that both the First Decision at paragraph [29] and the Appeal Panel's decision of 9 February 2021 at [11] (9) refer to a raised garden bed having been proposed by Mr and Mrs Mehr. No order for a raised garden bed was made. For those reasons the Tribunal does not place any weight on the report."
As is clear from Order 3 of Mehr, the fence ordered was one constructed of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres, not that construction together with a garden bed (the cost of which was estimated at approximately $30,000). Thus, the report was irrelevant.
We further note, as the Appeal Panel noted in Mehr at [9], that in that appeal the Mehrs had withdrawn the appeal against Order 3 insofar as the Order stated what a sufficient dividing fence was to be. Having done so, it was too late for the Mehrs to attempt to argue that the fence should be differently constructed in the Renewal Proceedings.

Ground 3

What we have just said is also the answer to ground 3 in which the appellants submitted that the Tribunal erred in the following finding: "34 The orders of the Tribunal do not provide for the construction of a raised garden bed and the Tribunal is not satisfied that support necessary for the support and maintenance of the dividing fence proposed by the Tribunal."
The appellants submitted that that finding is "confusing and hard to understand". We disagree. The passage is, in our view, clear.
The appellants refer to the definition of "fence" in the Dividing Fences Act 1991 (NSW), which definition includes "any foundation or support necessary for the support and maintenance of the fence".
Whilst that submission is correct, the fact that a "fence" includes any foundation or support does not mean that the appellants may now argue for a particular, and expensive method of foundation and support when that was not previously raised by the Mehrs and had not been included in Order 3.
Further, that option of a raised garden bed is not essential to the success of the fence. That is, the McArdle report does not say that the fence described in Order 3 must have a raised garden bed for foundation or support or the fence will fail. Rather, the McArdle report presents two options for the fence, the raised garden bed being part of Option 2. But McArdle also presented an Option 1, which was, in essence, the fence described in Order 3 (but without a garden bed for foundation or support).
We note that the appellants sought to tender on the appeal a further expert report by Catriona Mackenzie dated 9 September 2021. We rejected the tender of this report because it was not evidence that was not reasonably available to the appellants at the time of the hearing of the Renewal Proceedings - see cl 12(1)(c) of the NCAT Act. "(N)ot reasonably available" in this context means that the report was not, on an objective test, able to be obtained by the appellants prior to that hearing - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]-[24].

Ground 4

The appellants submitted that, at [34] of the Renewal Decision, the Tribunal did not provide adequate reasons for the finding that it was not satisfied that the raised garden bed was necessary for the support and maintenance of the fence described in Order 3.
The appellants submitted that the Tribunal failed to give any reasons why support was not necessary for the Order 3 fence. The simple answer to this is that there was no evidence tendered by the appellants which supported the proposition put. That is, the McArdle report not only did not say that a garden bed was necessary as foundation or support for the Order 3 fence, it also implied one was not necessary because it included Option 1 for the fence and such option did not include any garden bed for foundation or support.
The appellants submitted the Tribunal did not consider photographic evidence and the survey plan which, in their submission, demonstrated the difference in levels between the two properties, and a rock surface with no soil.
The answer to that submission is the same as the answer given to Ground 3 above.

Ground 5

The appellants submitted that the Tribunal failed to address a relevant matter in the Renewal Proceedings, namely the length of the fence. In short, the appellants submit the fence should be 41.55 m long, whilst the respondents say it should be 23.5 m long.
The order of the Tribunal was that the fence should form a hedge on the boundary of the parties' properties as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of the appellants filed on 21 August 2019.
The boundary (as shown in the survey) is about 41.55 m long, but the diagram on p.27 of the submission of the appellants filed on 21 August 2019 shows a fence of about 23.5 m long, the balance of the length of the boundary being within a Restricted Development Area.
Be that as it may, the order of the Tribunal is clear. The fence should be on the boundary as indicated in the Eldridge survey, but be the length as shown in the diagram on p.27 of the submission of the appellants filed on 21 August 2019 i.e. approximately 23.5 m long.

Orders

We make the following orders: 1. Appeal dismissed.

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: 20 January 2022

Mehr v Lau

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