Peppernell v McCrae

Notice of Appeal

1. The appellant filed a Notice of Appeal on 18 January 2024. Consequently, the Notice of Appeal was filed in the time required by the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), being 28 days: NCAT Rules, r 35(4)(c).
2. The grounds of appeal are stated as follows: The law was not applied. The Dividing Fence Act 2001 NSW, Part 2, 8 states that 'an adjoining owner is liable for up to the whole of the costs of the whole fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act The building standards and code for retaining walls require building approval where the retaining wall is greater than 600mm high or closer than 2 metres from another retaining wall. There was clear evidence that the cut into the land was well over 600mm, in fact it was approximately 1400mm - 1500mm. It was also clear that this was right beneath another small retaining wall. It was clear that a small garden was used to retain some of the cut and the remaining 600-600mm was left not retained. Evidence was provided showing this. I also recently spoke with the Engineer who provided the defendant with a report for the hearing. After explaining what work was carried out by the defendant and where the original level of the land was, the Engineer has acknowledged that he has made a mistake and that the defendant should be liable. I believe the defendant either gave the Engineer incorrect information or he at least went along with what the Engineer thought to be the facts/ situation. Pictures were shown as evidence clearly showing all other fences and that they were all in excellent condition. Pictures were shown of the same back fence in dispute and the approximately 3 metres of fence that backed onto the defendants side neighbour and this fence also being in excellent condition. The defendant admitted in the court hearing to causing damage when he cut the block away and didn't retain at all while we received several days or more of torrential rain. The fence is in a very vulnerable and dangerous state. I am now seeking a legal representative and also getting another Engineer to inspect and provide a report for the appeal. I have also requested several reports from the council. I don't believe the Member at the court hearing, had an understanding of the situation. At conciliation, the Member stated, that he didn't think there would be a Member that would not order the defendant to repair the damaged dividing fence.
3. The appellant states in the Notice of Appeal that she is asking for leave to appeal because the Decision is not fair and equitable, against the weight of the evidence, and that there is now significant new evidence available that was not reasonably available at the time of the hearing.

The Decision is not fair and equitable

1. Here the appellant states: The applicant admitted in court that he had caused damage by cutting in and not retaining while we received torrential rain for several days or more. There is evidence clearly showing that the garden the defendant has built as a retaining wall is not legal and has not been approved. There is clear evidence that the defendant has not built a retaining supporting the land at its original level and has left approximately 500 - 600mm exposed with just the pine wood that was originally in the ground. There is clear evidence of the damage and failing fence. Engineers report stating the defendants garden retaining wall was not approved or sufficient to support the cut.

The Decision is against the weight of the evidence

1. After setting out the evidence she gave at the hearing, and the evidence the respondent gave, the appellant states: What evidence should the Tribunal have given more weight to? Why? Pictures clearly showing where the original land level was. Pictures clearly showing the garden retaining wall that only supported part of the land excavated and left approximately 500-600mm still exposed. It was clear no approval or engineer designed had been used. Clearly just a backyard job. I had requested any information relating to the retaining, wall from local council and they said they had absolutely nothing on a retaining wall. Pictures clearly showing that the cut was approximately 1400 - 1500mm. Pictures clearly showing that the remaining of the back fence (approximately 3 metres) that backs onto the defendants side neighbour was still in excellent condition. Pictures clearly showing that where the defendant had also cut along this side neighbours block, it was also failing and falling into the defendants block. Pictures showing the rest of my fencing all done at same time with same materials and they are all still standing strong.

Significant new evidence available that was not reasonably available at the time of the hearing

1. The significant new evidence is said to be: Another Engineers report. Email from defendants Engineer confirming he made a mistake and that he was misinformed by the defendant. Council documents hopefully clarify level of land prior to the defendants excavation. Detailed survey for the defendants block / excavation.

Folders 1 and 2

1. The appellant also filed two folders of materials.
2. Folder 1 comprises 40 pages of materials, including but not limited to a statement of issues, facts and circumstances; the relevant fencing notice; email correspondence; photographs; invoices and quotations.
3. Folder 2 includes but is not limited to the appellant's submissions; an extract from the DF Act; a transcript of some of the oral evidence given by the parties at the Tribunal hearing; text messages; and a quotation of John Robbins Engineering dated 17 March 2024.
4. We will refer to the appellant's submissions below.

O'Ryan Report

1. In addition, on 14 April 2024 (a Sunday) the appellant sent by email to the Appeal Panel Registry (which the Registry marked as having been received on Monday 15 April 2024), a report of O'Ryan Geospatial Pty Ltd dated 12 April 2024 (O'Ryan Report).
2. In the accompanying email, the appellant states: Please see attached, an updated surveyors report. This is the same as the original, but just includes an explanation of what they have done.

The respondent's materials

1. The respondent provided the following materials to the Appeal Panel.

Reply to Appeal

1. Here the respondent states that he supports the original orders made by the Tribunal because: The Engineers Report from Cook & Roe (Oct. 2023), provided to the Tribunal, clearly states that "the existing retaining wall on the respondent's property does not appear to be compromised and is not a contributing factor to the damage observed". The Tribunal assessed all evidence and stated that " the applicant has failed to prove that the respondent is responsible for and the cause of problems with the dividing fence" and dismissed the application. The "onus is on the applicant" and as such, is is clear that my evidence regarding my retaining wall is not the issue that has caused damage to the fence. It is the actual dividing fence and how it was constructed as a pool fence. which has failed due to the inadequate materials used. It is therefore a pool fence and is according the to law (Swimming Pools Act 1992 No 49 p26) the responsibility of the pool owner. This prevails over any provisions of the Dividing Fences Act 1991 which the appellant is trying to use as the basis of her arguments. It is not necessary to have another hearing about the same subject again.
2. The respondent further states: The appellant claims she has 'clear evidence' that the original cut into our block for the retaining wall was 1400-1500mm deep. How is this proven? There is no evidence of this. See supplied photograph with measurements from my side. I did not give the engineer incorrect information at all. If the appellant is referring to Mr Morris, the fact is that he simply came to my property and saw the fence and wall from my side. He never gave me a written report on this, but said he would " amend" his report to the appellant. (which she is using as a basis for this argument and, at the time of the last Ncat hearing, was still unpaid.) Pictures of the appellant's other fences are irrelevant as they are not next to a pool. There are two more sections of the same fenceline, which is also failing as it is built on 2 pine sleepers supporting approximately 350mm of base material on which a colorbond shed is built, and which is only 600mm from the boundary (not the regulation 900mm) ie non compliant.
3. Further commentary on each of these matters is set out in further attachments to the Reply to Appeal. We note that one of those attachments (B. Reply to Appellants Grounds of Appeal) records that that the respondent built the retaining wall on his property in 2009, that is some 14 years before the appellant filed her application to the Tribunal.

Submissions filed 11 April 2024

1. The respondent filed submissions prepared by his solicitor Mr Payne on 11 April 2024. Where necessary we will refer to those submissions below.

Evidence filed by the respondent at the Tribunal hearing

1. The respondent also provided a copy of the evidence the respondent had provided for the Tribunal hearing. Relevantly, this included the report of Mr Ross Murphy of Cook Roe Structural Engineers dated 17 October 2023 (Cook Roe Report).

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (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)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise, but we cannot identify any question of law in the Notice of Appeal. Nor was any question of law claimed.
4. Accordingly, the appellant requires the leave of the Appeal Panel to bring the appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31].

The Decision

1. It is appropriate to briefly summarise the Decision.
2. Paragraphs [1] to [4] summarise the appellant's application to the Tribunal.
3. At [5], the Tribunal summarises the applicable law.
4. At [6], the Tribunal notes that the appellant's claim that: the existing dividing fence is not sufficient within the meaning of the Act. As evidence of this, the applicant has provided photographs of the fence which she claims is falling away into the respondent's property … The applicant claims that the reason for this is due to work done by the respondent on that part of the respondent's premises that adjoin her property. The applicant claims that this work was cutting away without building a sufficient retaining wall which has also caused damage to the pool area on the applicant's property where pavers have started to move and crack.
5. At [8], the Tribunal notes that the appellant's submissions: From the applicant's evidence, the Tribunal understands Mr Morris to be stating in this report and in a further email dated 10 August 2020 … that the retaining wall on the respondent's property is failing, or, if not, is the cause of problems with the dividing fence. In conflict with these claims is a report dated 17 October 2023 from Mr R Murphy of Cook and Roe Structural Engineers … in which Mr Murphy states that the cause of the damage to the dividing fence is the inadequacy of the fence structure itself. Mr Murphy states that a swimming pool and shed on the applicant's property, built near the dividing fence, may have exacerbated this problem, the pool, in particular, creating an adverse condition for corrosion by exposing the steel fence posts to chlorinated water. Mr Murphy states that leaving those factors aside the fence would still not be adequate for retaining soil and would have failed over time. With respect to the retaining wall on the respondent's property, Mr Murphy states that it does not appear to be compromised and is not a contributing factor to the damage observed.
6. At [9], the Tribunal notes that the respondent's submissions that: At the hearing, the respondent drew the Tribunal's attention to an email dated 28 September 2023 from Mr Morris … this email Mr Morris said that a colourbond fence and its posts are not supposed to be used as a retaining wall. Mr Morris states that the posts have rusted and would not have the capacity to handle lateral loads imposed and this is more than likely the reason for the failure of the dividing fence. Mr Morris stated that his original report would have to be amended to reflect those statements. This appears to be a retraction from the position the applicant claims Mr Morris expressed in his original report that the retaining wall constructed by the respondent on his property was the cause of problems with the dividing fence.
7. The Tribunal's determination of the appellant's application is set out at [10] and [11] as follows: 10. In their documents and also in their oral evidence at the hearing, both the applicant and the respondent advanced different arguments as to why they claimed that the other party was responsible for problems with the dividing fence. The Tribunal has considered those arguments but finds that any decision to make the orders requested by the applicant ultimately turns on the opinions expressed in the evidence of experts, in this case the engineers who provided reports. The evidence provided by the engineers is conflicting as to responsibility for and causes of problems with the dividing fence. Taking into consideration that subsequent email from Mr Morris, if anything, the expert evidence indicates that the respondent is not responsible for and did not cause the problems encountered with the dividing fence. The onus is on the applicant to demonstrate on the balance of probabilities that those problems have been caused by the respondent. Based on the evidence of the experts on that issue, the applicant has not discharged that responsibility. 11. Accordingly, the Tribunal dismisses the application for orders to be made for certain fencing work to be carried out at the cost of the respondent and for the respondent to reimburse costs the applicant claims she has incurred in obtaining expert opinions as to the condition of the dividing fence and the causes of the problems that she has raised. The Tribunal is not satisfied that on the balance of probabilities the work done by the respondent on his property has caused damage to the dividing fence, including to the retaining wall on the applicant's property on top of which, according to the applicant, the dividing fence has been erected.

Preliminary issue

1. Both parties filed materials which were not before the Tribunal.
2. As the Appeal Panel stated in Chapman v McLaughin [2016] NSWCATAP 212 at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
3. The test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
4. The materials sought to be relied on by the appellant principally included the O'Ryan Report. We are not persuaded that that evidence was unavailable because the appellant could not have reasonably obtained the evidence.
5. As to the materials sought to be relied on by the respondent, we were told that these were relied on in support of an application for costs by the respondent in the event that the appellant was unsuccessful. Accordingly, we will not consider those materials in relation to the appeal itself, but only in relation to the costs of the appeal if appropriate.

Consideration

1. We have already stated that we could not identify any question of law raised by the appellant, and that therefore the appellant requires leave to appeal.
2. The grounds of appeal are set out above. There appears to be three grounds of appeal, which we will consider as follows: 1. the Decision was not fair and equitable, in that the Tribunal erred in preferring the expert evidence of the respondent's expert to the appellant's expert's evidence; 2. the Decision was against the weight of the evidence, in that the Tribunal failed to give sufficient weight to the photographs relied on by the appellant; 3. there was significant new evidence available that was not reasonably available at the time of the hearing.

First ground of appeal: Decision not fair and equitable

1. The first and principal ground of appeal is that the Tribunal erred in preferring the evidence set out in the Cook Roe Report to the evidence of Mr Morris relied on by the appellant. In particular, the appellant submits that she spoke to Mr Murphy after he completed his report and that he "acknowledged that he has made a mistake and that the [respondent] should be liable".
2. The appellant's expert, Mr Morris, concluded in his report of 30 June 2021: In our opinion, there would be surcharge loading for the fence as well as hydrostatic forces from the pool shell. Typically, the retaining wall would need to be designed to provide support to earth that supports the pool as well as normal soil pressure. Hydrostatic pressure from stormwater would normally be considered with the installation of free-drawing gravel and subsoil drainage behind wall. In our opinion the wall is failing due to all the design parameters not being fully considered prior to its installation …
3. The respondent's expert Mr Murphy concluded in his report of 17 October 2023: Based on the evidence gathered during our inspection, it is our opinion that the cause of the damage to the fence is the inadequacy of the fence structure to retain earth as it has been built. It is our expectation that the timber boards, fence posts and footings for the fence are all not structurally adequate to be used for this purpose. The pool and shed which have been built near the boundary on the northern side may have exacerbated the issue by increasing the lateral force being induced into the fence where it is retaining. Furthermore, the pool has potentially created an adverse condition for corrosion by exposing the steel fence posts to chlorinated water on a regular basis. We note however that while these factors may have contributed to the failure of the fence, it is our opinion that even without these factors, the fence would still not have been adequate for retaining soil and would likely have still failed over time.
4. Neither expert gave evidence at the Tribunal hearing.
5. For the reasons given by the Tribunal, summarised above, the Tribunal preferred the expert evidence of Mr Murphy. The appellant now seeks to challenge the Tribunal's reliance on that evidence by reference to her claimed conversation with Mr Murphy on some unspecified date after he finalised his report.
6. The appellant, as the applicant in the Tribunal, bore the onus of establishing that she was entitled to the relief she sought.
7. On its face, Mr Morris' report does not appear to assist the appellant.
8. And clearly, Mr Murphy's report did not. But it is not to the point whether or not Mr Murphy later changed his opinion. The appellant bears the evidential onus of proving her claim, and establishing that she is entitled to the relief she was seeking before the Tribunal.
9. Clearly, any evidence of Mr Murphy recanting his views was not before the Tribunal, and nor was it probative evidence before us. That is to say, the evidence such as there is before us is the assertion of the appellant, unsworn and only appearing in her Notice of Appeal, and amplified in her oral submissions to the Appeal Panel.
10. We see no error in the Tribunal's reasoning, and are not of the view that the Decision, as claimed by the appellant, was not fair and equitable. On the contrary, at least in relation to the expert evidence before the Tribunal, the Decision was consistent with the evidence.

Second ground of appeal: Decision against the weight of the evidence

1. The next ground of appeal was that the Decision was against the weight of the evidence. While again referring to the expert evidence, principally the appellant submits that the Tribunal failed to give sufficient weight to the photographs relied on by the appellant.
2. We accept that there is no reference to the photographs in the Decision.
3. There was a lengthy discussion about the use of photographs in hearings by the Appeal Panel in X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181. Relevantly, the Appeal Panel noted at [61]-[62] and [64] that: 1. in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71, Lord Reid said: Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance. (emphasis added) 1. the use by a trial judge of photographs is nothing new, and they can be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142; 2. in Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, the Court stated at [42]: The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved. (emphasis added)
4. The appellant asserts in her Notice of Appeal that the photographs "clearly show": 1. where the original land level was; 2. the garden retaining wall only supported part of the land excavated and left approximately 500-600mm still exposed; 3. that "the cut" was approximately 1400 - 1500mm; 4. that the remaining of the back fence that backs onto the respondent's side neighbour was still in excellent condition; 5. that where the respondent had also cut along his side neighbour's block, it was also failing and falling into the respondent's block; 6. the rest of the appellant's fencing which was "all done at same time with same materials" are all still "standing strong".
5. Applying the principles we have extracted from X-Build Construction Services Pty Ltd, we do not accept the propositions advanced by the appellant. We see no substance that any of those propositions are established by the photographs.
6. As to the submissions that 500-600mm was still exposed, and that "the cut" was approximately 1400-1500mm, these submissions appear to be based on visual observation, and not on any actual measurement. The Tribunal and the Appeal Panel regularly receive photographic evidence from parties where a person stands in front of a wall (by way of example) with a tape measure in an attempt to prove that the wall is out of line. The photographs relied on by the appellant do not even contain such a measurement. Thus, the submissions of the appellant are but bare assertions.
7. As to the remaining submissions, we do not find that the photographs are in any way probative of the submissions made.
8. It follows that we would not grant leave in respect of this ground.

Third ground of appeal: significant new evidence now available

1. The final ground of appeal was based on fresh or new evidence. We have dealt with that point above, and it follows that we would not grant leave on that ground.

Conclusion

1. To the extent that the appeal raises errors other than questions of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. In relation to each of the above matters, leave to appeal is refused.
3. As the Appeal Panel recently stated in Sedghi v Liew [2024] NSWCATAP 6: 21. It is important to note that an appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again or have a "second chance": Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. 22. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted.

Costs

1. The respondent foreshadowed in his written submissions that he sought costs of the appeal if the appellant were unsuccessful. He submitted that the appeal was "frivolous, vexatious and misconceived", and that therefore he was entitled to costs pursuant to s 60(3) of the NCAT Act.
2. We think the appropriate course is to allow the parties to file submissions on costs. Submissions are to be limited to 3 pages and we will give a timetable for submissions in our orders.
3. We propose to consider costs "on the papers" and without a hearing. If either party opposes that course, they should address that issue in their submissions.
4. We note that in Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 the Appeal Panel stated at [85] that: [i]t is the experience of the Appeal Panel that costs decisions in the Consumer and Commercial Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing. The parties were given an opportunity to provide written submissions and did so. They can be presumed to have included all relevant issues in their written submissions.

Orders

1. The Appeal Panel orders: 1. Leave to appeal is refused, and the appeal is otherwise dismissed. 2. If the respondent seeks costs, he must file and serve submissions on or before 27 May 2024. 3. The appellant may respond on or before 10 June 2024. 4. The respondent may reply on or before 17 June 2024.

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: 13 May 2024