Peppernell v McCrae

Peppernell v McCrae - [2024] NSWCATAP 79 - NSWCATAP 2024 case summary — Zoe

[3]

Notice of Appeal

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).
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.
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.

[10]

Reply to Appeal

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.
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.
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.

[15]

Leave to appeal

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).
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.
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].

[16]

The Decision

It is appropriate to briefly summarise the Decision.
Paragraphs [1] to [4] summarise the appellant's application to the Tribunal.
At [5], the Tribunal summarises the applicable law.
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.
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.
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.
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.

[19]

First ground of appeal: Decision not fair and equitable

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".
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 …
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.
Neither expert gave evidence at the Tribunal hearing.
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.
The appellant, as the applicant in the Tribunal, bore the onus of establishing that she was entitled to the relief she sought.
On its face, Mr Morris' report does not appear to assist the appellant.
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.
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.
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.

[20]

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

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.
We accept that there is no reference to the photographs in the Decision.
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)
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".
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.
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.
As to the remaining submissions, we do not find that the photographs are in any way probative of the submissions made.
It follows that we would not grant leave in respect of this ground.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (25 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (11)

Cited By (1)