Stringer v 22 Kapital Pty Ltd trading as 22 Kapital Pty Ltd

1. This matter initially came on for appeal on 22 May 2025. We were informed and there was evidence to this effect that the Respondent is no longer the legal owner of the adjoining land, having sold that property to a third party.
2. We were concerned about the potential impact on the current owners who had not been served with the papers and may have a legitimate interest in the outcome of the appeal.
3. Accordingly, the appeal was adjourned to 4 July 2025 and the Appellants were required to serve the appeal papers on the current owners with a direction that they advise the Tribunal in the event that they sought to be heard on the hearing of the appeal.
4. The Appellants subsequently provided evidence to us that such service had been effected. The current owners did not advise the Tribunal that they wished to be heard. Accordingly, the matter proceeded on 4 July 2025 in their absence.

1. The Act is concerned, in part, with regulating the respective liability of adjoining landowners on either side of a common boundary in respect of "fencing work" which is defined in s 3 to include the repair or maintenance of the whole or part of a dividing fence.
2. "Dividing fence" is defined in s 3 of the Act as "a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary".
3. "Fence" is defined in s 3 of the Act as follows:

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.

1. These terms have been carefully examined by the Appeal Panel in Inacio v Luckose [2020] NSWCATAP 149 ("Inacio") where the proper interpretation of these provisions was analysed in detail. It was held to be as follows:

41. To understand the intention of the Act and in particular the terms of paragraph (c) of the definition of "fence" and the qualification to the exclusion of retaining walls "except as provided by paragraph (c)" it is appropriate to have regard to the history of the Act and its predecessor, the Dividing Fences Act 1951 (NSW) (the 1951 Act).

42. The definition of "fence", in s 5 of the 1951 Act, was as follows:

a structure of posts and boards, palings, rails, galvanised iron, metal, or wire, enclosing or bounding land, or a wall, ditch, or embankment enclosing or bounding land, and includes any foundation, foundation wall, or support reasonably necessary for the support and maintenance of the fence, but does not include a wall which is part of a house or other building [emphasis added].

43. The definition of "dividing fence" in the 1951 Act was almost identical to the definition of that term in the Act.

44. In Carter v Murray [1981] 2 NSWLR 77 McLelland J considered the position of two adjoining properties, one of which was substantially higher than the other. There was between them "a retaining wall made of dry-laid sandstone blocks" which his Honour described (at 78) as follows:

"The wall is between two and three metres high and the top is roughly level with the surface of No 30 in its immediate vicinity, the back-fill on No 30 comprising a mixture of natural material, fill soil and rubble. The base of the wall is approximately level with the ground level of No 34 in its immediate vicinity, although for a distance of about five or six feet at the north-western end the wall stands on sandstone bedrock which has been cut vertically so as to stand above the ground level of No 34 to a height about one foot, tapering to nothing."

45. In dealing with a submission, made in opposition to the making of an order requiring contribution to the repair of that wall, that it was not a "fence" within the Act, McLelland J held, at 79:

"In my opinion, the word 'separating' in the definition of 'dividing fence' has a functional connotation, which renders it necessary to examine the physical characteristics and function of the fence in question in relation to the physical characteristics of the rest of the land on either side thereof in order to determine whether the statutory criterion is satisfied. The concluding words of the definition of 'dividing fence' which contemplate a dividing fence otherwise than on the common boundary seem to me to support such a connotation in the present case. The retaining wall provides structural support for other material on and below the surface of No 30 and thus assists to maintain the surface of No 30 at its present level, but it seems to me that it does not 'separate' the two parcels of land in what I consider to be the relevant sense of impeding egress or ingress to or from either property.

The retaining wall should, in my opinion, be treated as an integral part of the sub-surface of No 30. The thing that in the relevant sense separates No 30 and No 34 is the vertical drop of two or three metres between their respective levels at or near the common boundary, rather than the retaining wall, notwithstanding that the latter happens to be where the vertical drop occurs."

46. In Kontikis v Schreiner (1989) 16 NSWLR 706, at 709-710, Mahoney JA, with whom Hope and Priestley JJA agreed, held, in respect of a submission that a "fence" for the purposes of the 1951 Act did not include a retaining wall:

The true distinction, for the purposes of the Act, is between a structure or wall which is a fence within s 5 and one which is not. It is therefore necessary to examine the operation of the definition. The relevant portion of it relates to "a structure of ... enclosing or bounding land or a wall ... enclosing or bounding land ...". It is to the significance of "a wall ... bounding land" to which the argument has in substance been directed.

On one view, the definition, and so the operation of the Act, extends to any wall bounding land. On this view, the fact that a wall bounds or happens to bound land is enough to bring it within the definition. The alternative view is that, to fall within the definition, the wall must not merely bound land in fact but it must be there functionally or essentially for that purpose. This view is, or is similar to, that taken by McLelland J in Carter v Murray ...

The facts there considered by McLelland J were different from those now before the Court. But his Honour was concerned with the scope of the definition of "fence" and its cognates. He did not, in my opinion, conclude that if a wall is a "retaining wall" it cannot be a "fence" within the Act. A wall may be a fence within the Act notwithstanding that it does in fact retain the soil of one property from falling onto the other. What is in issue in the determination of the meaning of "fence" is whether the structure or the wall is a structure or wall "enclosing or bounding land" in the sense referred to in the definition of "fence".

I agree with the view of McLelland J that in the definition of "dividing fence" the verb there used, "separating", is to be seen as having "a functional connotation"; similarly, in my opinion, "enclosing or bounding" has a functional connotation. The mere fact that a particular structure or wall happens to be upon the boundary of land does not, in my opinion, mean that it is for the purposes of the Act a "fence". The term "fence" is, I think, limited to a structure or wall which, being on the boundary, is there for the purpose of "enclosing or bounding" the relevant land.

It would, I think, be strange if an Act of the present kind had been intended to govern the cost of the erection and repair of what might be large and expensive structures such as retaining walls or structures of similar dimensions. ...

47. His Honour referred to the fact that the 1951 Act mandated an equal sharing of cost without regard to the differential benefits received by adjoining landowners from a retaining wall and continued, at 711-712:

Anomalies and incongruities are not unknown when legislation framed in general terms must be applied to different factual situations. But they are to be taken into account in determining, having regard to the purposes of the legislation, the ambit of the operation of its terms. I do not think that it was contemplated that the Act would apply to cases in which large consequences such as cost of retaining walls and the like are in question.

On the alternative view, the definition, and so the Act, applies only where the wall not merely bounds the land in fact but is to have or was constructed to have that function. Therefore, if the function of the wall be to retain A's land rather than to bound it, that is, to mark out the limitations of it, the Act would not apply to it.

That view would require determination in each case of what was the function of the wall erected or to be erected. That would, in most cases, pose little difficulty. The Court would, I think, look to the real reason why the particular wall was or was to be erected, that is, whether the particular wall or kind of wall was chosen to bound land or whether it was chosen because it was necessary or appropriate to perform another function, for example, of retaining A's land. Where the reason for choosing that wall or that kind of wall be not to bound but to support or retain the land, then the wall would not fall within the definition. The wall to be erected might in fact fulfil two purposes: it might retain the land and might mark out the boundary between it and other land. But, for the purposes of deciding whether the wall chosen was within the Act, the court would ask: Why was this wall or this kind of wall chosen rather than some other wall? If the reason be to retain rather than to bound the land, it would not be within the definition.

It is not possible to exclude the possibility of a case in which the particular wall or kind of wall was, in a real sense, chosen both because such a wall was necessary properly to mark the boundary of the land and because it was necessary for another reason, such as supporting one of the adjacent lots. In that case, the particular wall or kind of wall would be chosen because functionally it was necessary both for bounding and for retaining. If such a case should arise, it would, I think, be open to the Court to hold that, as the particular fence was, or was to be, erected for the purpose of bounding the land, it was a wall bounding the land within the definition, notwithstanding that it was also erected for another purpose as well.

48. The enactment of the Act in 1991 followed the publication in 1988 of the NSW Law Reform Commission Report 59: Dividing Fences. In that report, at [4.8] the Commission referred to the issues and problems for adjoining owners arising in relation to retaining walls and concluded:

The Commission does not believe that it is appropriate to address these problems by the imposition of liability for construction and repair of retaining walls under dividing fences legislation. Retaining walls serve quite different purposes from fences. They are usually substantial and expensive structures which repose within the subsurface of the land of one adjoining owner, and are therefore required to withstand considerable lateral stress. ... Retaining walls are usually erected solely for the benefit of the owner who undertakes excavation work

49. The definition of "fence" in the Act as enacted in 1991 included the exclusion of retaining walls in the chaussette [1] but did not include the words "(except as provided by paragraph (c))".

1. Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83, footnote 1, per Wright J and Principal Members Harrowell and Seiden.

50. The Act in those terms was considered by Malpass AsJ in Warringah Properties Pty Limited v Babij (Snr) [2006] NSWSC 702. The principal issue between the parties in that case was whether or not a sandstone structure which had stood on the boundary between two properties (until demolished by the Plaintiff) was a retaining wall or a dividing fence. His Honour noted, at [10] that:

Section 3 of the Act contains definitions of "dividing fence" and "fence". The definition of "fence" excludes inter alia a "retaining wall". Section 3 does not define a "retaining wall". Some assistance as to the meaning to be given to those words may be found in what was said in and what was referred to in Kontikis v Schreiner.

51. His Honour noted a number of differences between the Act and the 1951 Act and stated, at [12] that "what was decided [in Kontikis v Schreiner] has been seen to be of relevance to the definition of 'fence' that was introduced into the Act".

52. His Honour continued:

14 The definition of "fence" can be seen to be one of great width. Save for the exclusions, it would appear to be contemplated to pick up inter alia any structure that has the characteristics of enclosing or bounding land. A "fence" satisfies the statutory requirements of a "dividing fence" if it separates the land of adjoining owners. The concept of separation has been said to have a functional connotation.

...

16 There is little historical evidence pertaining to the structure (it had been in existence for a very long time). As a consequence, there is a lack of express evidence as to the purpose of its construction. However, what evidence there is compellingly demonstrates that it meets the statutory requirements of both a "fence" and of a "dividing fence". The structure was at least roughly situated on the common boundary. It extended along the whole boundary. Further, it can be observed that it was a structure that was higher than the fill. It had the characteristics of enclosing or bounding land. It also separated the two properties and performed the function of a dividing fence.

...

19 The Plaintiff's case is dependent on evidence that there was fill behind the structure on the Plaintiff's property and that it was performing some retaining function in relation to that fill. In my view, even assuming that to be the case, it does not seem to me to be determinative in the circumstances of this case.

20 The question of what is a "retaining wall" has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water).

21 There may be overlapping of purposes. Apart from being erected to perform the purpose of a separating structure, a "fence" may also serve other functions (such as a function to provide support). In the determination of the question of whether a particular structure is a "fence" it can be expected that each case will turn on its own circumstances (with regard being had inter alia to matters of physical characteristics and function). Even if a fence has a support function, the Court is not precluded from finding that it was a "fence" (see Kontikis pp 711 - 712). I do not consider that it was intended by the legislature that a structure necessarily fell outside the Act merely because it provided some support or other function.

53. The Act in its original form was also considered by Hidden J in Brown v Doyle [2010] NSWSC 1269; 179 LGERA 449 [2]. In that case a mound of dirt on the boundary between the parties' properties had been flowing onto the plaintiff's land. A local land board, purporting to exercise powers under the Act, had ordered the construction of a "retaining edge consisting of two railway sleepers on their edge". His Honour held that the land board had no power to make the order for construction of the retaining edge. His Honour held, at [16]:

16 It is clear that in the present case the retaining edge, constituted by railway sleepers on their edge, was for the purpose only of containing the dirt from the mound. The separation of the adjoining properties was no part of its function, which the board appears to have seen to be met by the mound and the trees upon it. Accordingly, the retaining edge is best described as a "retaining wall", as that expression is used in the statutory definition of "fence" and is excluded from that definition. It is certainly not a fence. The board had no jurisdiction to make that order, and it must be set aside. Of course, it was open to the parties to agree to construct such a retaining edge but it was not open to the board to order it.

2. We note that both the decision of Hidden J and the decision of the local land board were given after the commencement of the Amending Act on 1 February 2009. The reason why the unamended version of the Act was applied was not explained in the decision.

54. The words "(except as provided by paragraph (c))" were inserted into the Act by the Dividing Fences and Other Legislation Amendment Act 2008 (NSW) (the Amendment Act) which came into force on 1 February 2009.

55. In the Second Reading Speech in relation to the Bill for the Amendment Act, the Hon Penny Sharpe, on behalf of the Minister for Lands, stated:

The intention of the scheme set out in the bill is that only fencing work necessary for the immediate support of a fence will be caught within the scope of the power to order a contribution for fencing work. This will mean in practice that a contribution will not be available for the work that is necessary for repairing a retaining wall when those funds are spent purely on the maintenance of the retaining wall for its principal purpose as a retaining wall and not as part of a dividing fence. An example of the sort of fencing work that will be the subject of a contribution is work on the fence footings on top of a retaining wall. No expenses for the construction of the retaining wall itself are intended to be claimable. The operation of section 26 of the Dividing Fences Act as amended by the bill means that the Dividing Fences Act does not affect the operation of laws that affect the rights of persons to support a retaining wall. This means that the duty to preserve support for neighbouring land created by section 177 of the Conveyancing Act 1919 is preserved.

...

Amendments found in the bill ensure that the proposed limited power for an order to be made affecting a retaining wall, tree or other vegetation is reflected in the permissible scope of work that may be included in a fencing notice. An adjoining owner may serve a fencing notice to request a contribution for certain proposed fencing work. The bill also limits the amount of the contribution that may be claimed. An adjoining owner will only be liable to pay a contribution in respect of the removal or trimming of vegetation or for works proposed regarding a retaining wall to the extent that those works are necessary for the provision of a sufficient dividing fence.

In view of the proposed limitations on the permissible scope of the fencing orders that refer to a retaining wall, tree or vegetation, it is appropriate for the existing general rule to apply that adjoining owners should make such contributions in equal proportions. Payment in equal proportions is fair and reasonable in the circumstances where a contribution only need be made to the cost of works affecting a retaining wall, tree or vegetation, to the extent those works allow for a sufficient dividing fence. A dividing fence will usually benefit both parties equally. However, an adjoining owner, as a result of fencing work relating to a retaining wall, tree or vegetation performed under the Act, may gain a particular benefit. A particular benefit arises where, for example, one owner has the benefit of relevant excavations beneath a retaining wall or has the benefit of clearing. The bill will allow an adjoining owner to construct a retaining wall or to clear vegetation that provides that owner with a particular benefit but prevents him or her from claiming a contribution for that work from the adjoining owner if that work is not part of constructing a sufficient dividing fence. (NSW Hansard, Legislative Council, 21 October 2008, p10224).

56. The Act in its current form, that is as amended in 2008, was considered by Commissioner Fakes in the Land and Environment Court in Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292. Fakes C set out, at [28], the first of the paragraphs from the second reading speech which we have quoted above and stated:

33 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Dividing Fences and Other Legislation Amendment Bill 2008 quoted in [28] of this judgment. In the light of this explanation of the intent of the amendment, I consider that the power of the Court under the Dividing Fences Act is limited to only ordering compensation for fencing work necessary for the immediate support of a fence and not to the entirety of the retaining wall. In this case, the fence is supported by posts set onto and partially into the retaining wall, and onto the ground at the eastern end of the wall. Therefore, any orders made will be limited to shared costs for the adequate support of the fence. As the survey sketch plan shows that the majority of the wall is on the applicant's property, another survey will be required to accurately locate the boundary and therefore the appropriate location of the fence and any necessary supports which may/ may not involve the retaining wall as part of that support system.

57. The Act in its current form has also been the subject of consideration in decisions of the Consumer and Commercial Division of the Tribunal.

58. In McKay v Greentree [2014] NSWCATCD 69, the proprietor of the higher of two adjoining properties served a fencing notice requiring the replacement of a retaining wall constructed on the lower property with a retaining wall on the higher property. There was no fence along the boundary and it was accepted that the Tribunal had jurisdiction to order the construction of a fence. The respondent objected to orders being made in relation to the retaining wall. Senior Member Boyce referred to Warringah Properties v Babij, Kontikis v Schreiner and Riggio v The Estate of Lockard and stated:

36 When considering whether a retaining wall is part of fencing work, the Tribunal uses the 'principal purpose test' of the retaining wall. If a wall's principal purpose is to provide a foundation or support to a dividing fence, then the Tribunal has jurisdiction. It becomes more difficult to make a determination if the principal purpose of a retaining wall is to support or retain earth and the support of a fence is ancillary.

56 The Tribunal is satisfied that the demolition of the retaining wall ... is not fencing work for the purpose of the Act because it is not sufficiently proximate to the common boundary to be part of fencing work required in the preparation of the land either side of the common boundary of the adjoining lands for the carrying out of the erection of a dividing fence.

60. In Fallon v Croese [2016] NSWCATCD 40, Member Ross held:

21 In this matter the quotation for the fence has risen since the commencement of this matter, from $2,450.00 to up to $6,600.00. The difference in the quotations is related to the necessity to retain land on the boundary. The original quote allowed for 1 sleeper under each panel, whereas the most recent quotations require 2 or 3 sleepers. The Tribunal is satisfied that the sleepers are not required as foundations or supports for the fence. They are required to retain the land because of the cutting and filling on each side of the boundary. The sleepers amount to retaining walls. The Tribunal has no jurisdiction to make orders in relation to them.

61. In Nham v Hayes [2018] NSWCATCD 17 Member Ash held that the evidence before the Tribunal did not enable him to draw the inference that the replacement of a retaining wall in association with the construction of a fence was "wholly within paragraph (c) of the definition of fence" and dismissed the application for an order requiring that work.

62. At [33]-[34] Member Ash accepted the submission of the respondents that:

If the New Retaining Wall is a substantial and material part of the fencing work proposed by the applicants, and if its principal purpose is to support or retain earth to improve the amenity of the applicants' land, and if the applicants do not seek to sever the work from the order sought (and they did not), the Tribunal can make no order.

37 However, the matter depends on definitions in an Act. Those definitions do not refer to the intention of either party. The Tribunal is of the view that a conclusion is properly reached by considering the text of the Act.

...

39 The meaning and intention [of the definition of fence in relation to retaining walls] is clear:

(1) Fencing work involves, relevantly, the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence.

(2) Where there is an extant dividing fence and the proposed work is the design, construction, replacement, repair or maintenance of a foundation or support necessary for its support or maintenance, the work is fencing work.

(a) This is so whether or not that foundation or support is also incidentally a retaining wall. That is, the work is inside the inclusion and therefore beyond the operation of the exclusion.

(b) This proposition recognises that the person liable under the general law cannot seek contribution for the structure qua retaining wall but only for the structure qua foundation or support necessary for the extant dividing fence.

(c) In practical terms, a person serving a fencing notice which includes work on a retaining wall should take care to ensure that no contribution is sought in respect of work on the wall which is not a foundation or support necessary for the support and maintenance of the extant dividing fence.

(3) Where there is no extant dividing fence, there is nothing to replace, repair or maintain. If anything is being done, it is design or construction. In this situation:

(a) Reading the definition of "fence" out of context and without regard to the purpose of the Act, it is possible to conclude that the design and construction of a retaining wall can never amount to "any foundation or support necessary for the support and maintenance of the fence", because the relevant fence has not yet been built.

(b) Such a reading benefits the respondents in this matter but gives no practical effect to the amending words read in context.

(c) An available interpretation which gives practical effect to the amending words read in context is that "fence ... includes... (c) any foundation or support necessary for the support and maintenance of the [not-yet-built] fence".

(d) This accords with the interpretation applicable in the case of extant dividing fences.

(e) Again, in practical terms, a person serving a fencing notice which includes work constructing a retaining wall should take care to ensure that no contribution is sought in respect of work on the wall which is not a foundation or support necessary for the support and maintenance of the proposed dividing fence.

64. The Member cited the second and third paragraphs of the extract from the second reading speech for the Amending Act which we have set out above and noted:

41 The ... Fencing Notice seeks contribution in respect of a retaining wall and a paling fence atop the wall. However, there is no evidence before the Tribunal as to which part if any of the retaining wall is a foundation or support necessary for the support and maintenance of the fence.

42 The relationship between dividing fences and retaining walls is complex. But the legislature has consistently shown an intention that contribution for dividing fences is generally the province of an inferior court or tribunal, and that liability for a retaining wall is a substantive legal issue affecting property which is the province of the Supreme Court.

...

44 In 2008, Parliament made a minor adjustment to the Act. That adjustment did not give the Tribunal any jurisdiction with respect to the general law of retaining walls. Rather, it confirmed that if a person sought contribution for work and if that work included retaining wall work, the Tribunal's jurisdiction in respect of contribution both includes and is spent by, consideration of the retaining wall work which is associated with the dividing fence in the terms of paragraph (c) of the definition of fence.

45 The adjustment implicitly addresses a different but related problem, the practical difficulty of making an order under s 14 of the Act relating to the nature and extent of fencing work, in circumstances where there is also work to be done on a retaining wall. The adjustment does so because it puts the task of differentiation squarely with the person giving a fencing notice, ie the applicant. If the overall work and the overall cost includes work and cost for that work which is outside the Act, the person giving a fencing notice must isolate that part of the work and the cost in respect of which the Tribunal can make orders. The Fencing Notice in this matter, on its face, does not do this.

46 The Tribunal only adds that a person charged with liability for a retaining wall under the general law was before the amending Act and remains since the amending Act, free to discharge that liability before turning to the issue of contribution for fencing.

47 In circumstances where there is no dispute that the proposed work includes the construction of a retaining wall, it is necessary that the applicants bring evidence as to what part of the retaining wall work falls within paragraph (c) of the definition of fence and evidence of how that is to be addressed in terms of orders that can be made under section 14, both as to the work itself and as to contribution.

65. In Gillard v Russell [2018] NSWCATCD 69 the applicants' land at the common boundary had been levelled and was supported by a low retaining wall and a higher retaining wall built within the respondent's land. Senior Member Boyce held:

46 The Tribunal is satisfied on the evidence before it that the low retaining wall included in the application is a retaining wall for the purpose of a foundation or footing for the support of the proposed dividing fence and act as plinth beneath the dividing fence. It will support the earth on the applicants' side of the fence and prevent it escaping onto the respondent's land. It will also allow the base of the fence to be leveled and supported.

47 The retaining wall should be located so that the width of the sleepers forming the retaining wall elements is centered on the common boundary line as has been determined by the surveyor.

48 As the retaining wall is part of the fencing work the respondent will be required to contribute to one half of its cost.

66. A common thread running through the cases referred to above is that questions such as whether a structure is a dividing fence and whether a retaining wall is a foundation or support for a dividing fence must be determined having regard to the purpose for which the structure or wall has been constructed.

67. The fact that a retaining wall provides support for a dividing fence, in the sense that the fence will fall over if the wall is removed, is not sufficient to establish that the wall is a foundation or support for the fence. It must be a common feature of retaining walls that whatever is constructed above the wall is likely to collapse if the wall is removed. It would not be consistent with the intention of the Act that any retaining wall constructed on or near the boundary between adjacent properties will be a dividing fence or part of a dividing fence. It is necessary that the wall be constructed as a foundation or support for a dividing fence, that is, for the purpose of providing a foundation or support for the fence.

68. There is support for that construction of the definition of 'fence' in the parts of the second reading speech for the Amending Act which we have extracted above, to which we may have regard both to confirm the ordinary meaning of the words of the definition and to guide the construction of those words to the extent that they are ambiguous or obscure: Interpretation Act 1987 (NSW) s 34.

1. Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 ("the CAT Act"). In Jamaican Coffee kitchen Pty Ltd trading as Dushan and Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 the Appeal Panel set out the principles as follows:

[19] An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must establish an error of law has occurred, or otherwise an error of the type that it is appropriate to grant leave to appeal.

[20] In Pendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Pendergast) the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons, whether the Tribunal applied a wrong principle of law and whether there was no evidence to support a finding of fact.

[21] The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(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).

[23] In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:

"... there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." (emphasis in original)

[23] In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:

(1) if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;

(2) the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach.

[24] Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.

[26] In Collins, the Appeal Panel at [84(2)] stated as follows concerning exercise of that discretion:

"[84] The general principles derived from these cases can be summarised as follows:

...

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;"

[26] The Appeal Panel may decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: s 80(3)(a) of the NCAT Act. Further, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be allowed, the decision under appeal is to be set aside, and the whole or any part of the case is to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel: s 81(1)(a), (c) and (e) of the NCAT Act.

1. There are several important cases relevant to the construction of s 80 of the CAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] ("Unique").
2. The Appeal Panel there said, inter alia, that:

(1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97].

(2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28] ...

(3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11].

...

(5) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109] ...

...

(8) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39] ...

...

(10) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

(11) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34]; Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.

1. The Member first paid attention to the decision in Inacio and quoted paragraphs [66] - [68] and [70] - [71] set out above.
2. The Member then proceeded to set out the Appellants' case as follows:

9. The retaining wall is a foundation or support necessary for the support and maintenance of the Colorbond fence, and therefore forms part of the dividing fence.

10. The retaining wall is required for the support of the boundary fence. The fence is bolted to the wall.

11. The retaining wall is on the boundary line or is more on the respondent's land. The respondent's survey does not specify a datum point. Assuming a AUSPOS GPS datum point was used, there is an error rate of up to 0.035m. When the survey was conducted on 13 March 2024, the wall was already damaged resulting in it being pushed "out of plumb". When it was plumb, it was 0.022m on the respondent's land. (This appears to be based on measurements carried out by the applicant).

12. Given the position of the wall, it is not possible for a fence to be installed on the high side of the wall on the boundary.

13. It is not possible for the wall to be installed closer to the applicant's house.

14. The retaining wall is failing and needs to be replaced. The Colorbond fence can be removed from the wall, and re-installed once the retaining wall is replaced.

15. The applicant disputed that the original plans for the dwelling on their land showed a retaining wall 525mm from the boundary, and asserted that it instead showed a "sediment fence" and the areas of cut out required for the concrete slab.

1. The Respondent's case was summarised as follows:

17. The retaining wall does not fall within the s 3 definition of "fence".

18. The wall was supposed to be built well within the boundary of the applicant's land and for the purpose of the owner of that land, due to the cut of that land to facilitate the building of the dwelling on that land.

19. The applicant's land has full benefit of the retaining wall. No retaining wall was needed prior to the construction of the dwelling on the applicant's land.

20. Council documents relating to the approval of the construction of the dwelling in 1997 on the applicant's land indicate that the wall was meant to be erected wholly on the applicant's land (525mm from boundary) and the owners of that land accepted full responsibility for the retaining wall and drainage. The retaining wall has not been constructed as per engineering specifications.

21. The survey conducted shows the retaining wall is on the applicant's land. The survey did not rely on GPS datum and therefore the error rate referred to by the applicant is not applicable.

22. Prior to the construction of the retaining wall, the dividing fence was on the boundary without a retaining wall, according to the previous owner of the respondent's land. The fence was then screwed to the retaining wall. If the retaining wall was in the correct position, the fence could be on the boundary without being on the retaining wall.

23. Applying Inacio, I am not satisfied that the purpose of the retaining wall was to provide a foundation or support for the fence. I am satisfied that the purpose of construction of the wall was to facilitate the construction of the dwelling on the applicant's land - as cuts to the land were made to provide a flat area for the house slab, it was necessary for the land above the cuts to be retained and so the retaining wall was constructed. The retaining wall was intended to be wholly on the applicant's land. I am satisfied this is consistent with the documentation before me in relation to the construction of that dwelling, and I prefer the evidence of Mr McNaughton as to what those documents show to the applicant's submissions in this regard. (Mr McNaughton had expertise in dealing with such documents and provided credible, logical evidence.) That supports the conclusion that the purpose of construction of the wall was to facilitate the construction of that dwelling and not to provide foundation or support for a dividing fence.

24. I accept the evidence provided on behalf of the respondent that it appears the retaining wall has been constructed closer to the boundary than the construction approval permitted. And there is dispute between the parties as to whether the retaining wall is on the boundary and/or the applicant's or respondent's land. Regardless of exactly where the wall is located, this does not change my view that the construction of the wall was for the purpose of construction of the applicant's dwelling and not to provide foundation or support for a dividing fence.

25. The fact that the fence has been affixed to the wall is not in itself sufficient to bring the wall within the scope of the Act. Because of where the wall is situated, it appears it was considered expedient to place the fence on the wall. However, had the land not been cut away for the dwelling on the applicant's land, or had the retaining wall been in its intended location, it seems a dividing fence could have been constructed on the boundary without attaching it to the wall. As noted in Inacio, the fact that the fence was constructed within soil supported by the wall would not be sufficient to bring the wall within the words of paragraph (c) of the definition of "fence".

26. It follows that any work in respect of the retaining wall is not "fencing work" within the meaning of the Act, and the Tribunal cannot therefore make any order in respect of it.

27. As the applicant is not seeking any orders in relation to the Colorbond fence other than that involved in replacing the retaining wall, it follows that the application should be dismissed.

1. Pointing to the definition of a "fence" in the Act, the Appellants challenge the reasoning in paragraph [25] of the Decision as follows:

(1) The Member appears to have misdirected herself in finding that the history of the matter, i.e. that the retaining wall was constructed for the benefit of the Appellants' property only or that it was not built in the originally approved location by previous owners was relevant.

(2) Section 3 of the Act does not permit an enquiry into the history of what past owners have done. It provides that if a retaining wall is "any foundation or support necessary for the support and maintenance of a fence" it constitutes a fence. In this case the retaining wall is on or very close to the boundary and the Colorbond fence is literally bolted to it.

(3) In reality, in 2024, the retaining wall and the subsequent wooden structure now constitutes a foundation or support necessary for the support and maintenance of the fence and it was plainly within the definition of s 3(c). There is no support in the wording of the Act for the proposition that one should look back in time to the history of the reasons for which the wall was constructed in the first place. The Act uses the present time - whether "it is necessary" to support the dividing fence.

(4) The decision in Inacio did not act as a precedent in this case (in that regard it stated that approximately half of the length of the "wall" is the actual foundation of the fence and is not the primary structure of the wall).

1. The Appellants in their Notice of Appeal also contended that the Decision was not fair and equitable as the Member detailed her opinion rather than fact and used an incorrectly applied precedent case, namely, Inacio in the reasoning we have set out above.
2. It was further contended that the Decision was against the weight of the evidence because the fence plainly fell within the definition of the Act in s 3(c). There was no support in the wording of the Act for the proposition that one should look back in time to the history of the reasons for the construction of the wall in the first place.

1. In oral argument on the appeal the Appellants again submitted that the history of the purpose for which the retaining wall, or wooden structure, was constructed was irrelevant.
2. The Appellants argued that they did not seek to challenge the reasoning in Inacio, or say that it was wrong, but said that the decision was distinguishable or not a precedent.
3. However, the Appellants went on to argue that the purpose for which the retaining wall, or wooden structure, was constructed was not relevant to the interpretation in s 3(c) of the Act. The question was simply whether the retaining wall forms part of the fence.
4. During argument attention was drawn by the Appeal Panel to the last sentence of paragraph [67] of Inacio which states that the retaining wall be constructed for the purpose of providing a foundation or support for the fence. In response, the Appellants maintained that the purpose is not relevant.
5. The Appellants also argued that a portion of the wooden structure was not in fact a retaining wall. The fence was attached to that structure and therefore it came within the definition within s 3(c).

1. The Respondent's argument can be summarised as follows:

(1) The retaining wall is on the Appellants' property and when it was built it was not built in accordance with the Development Application and is in the wrong spot.

(2) If the retaining wall was built in accordance with the Development Application it would be some distance from the dividing line and the fence would be separately in the soil on the dividing line.

(3) The wall was thus built for the purpose of retaining soil in accordance with a Development Application for the then owners of the land and not for the purpose of a fence separating the two parcels of land.

(4) As part of the Development Application the then owners accepted in writing that they had full responsibility for the retaining wall and the costs associated with it.

1. In relation to the last point raised by the Respondent, the Appellants argued that they were not bound by the written undertaking of the original owners to be responsible for the retaining wall.

1. It is clear that the Development Application granted in 1966 was granted in respect of a construction of a dwelling and a retaining wall on the property of which the Appellants subsequently became owners.
2. The purpose of that structure, wooden logs or sleepers, was identified as a retaining wall. The purpose was unrelated to, and the construction was not to provide a foundation or support necessary for the support and maintenance of the fence. It is not a matter of convenience. The structure must be "necessary" for the support.
3. In this case, the fence, consisting of Colorbond sheeting and posts, was at some stage (after the construction of the structure serving the purpose, in part, as a retaining wall) attached to that structure.
4. The part of the wooden structure pointed to by the Appellants which does not act as a retaining wall was not constructed as a foundation or support for a dividing fence. It has not been shown to have been constructed for the purpose of providing a foundation or support for the fence to bring the structure within the scope of s 3(c) of the definition.

1. There is an inconsistency in the Appellants' arguments. On the one hand, they accept as correct the decision in Inacio which deals with, and sets out, the proper interpretation of the legislation leading to the critical analysis at [67] which is quoted above.
2. On the other hand, they argue that the definition of "fence" should be read literally. It was said that it stands in black and white that the purpose is not a necessary element. All that is required is that in the present time the structure is necessary to support the fence.
3. Giving the Appellants the benefit of a very generous interpretation of what is a pure question of law we will treat their argument as raising such a question with the right to have it determined without leave of the Tribunal.
4. However, in our view, that argument has no merit. Against a carefully considered decision of the Appeal Panel which, in our view, is correct and in conformity with modern rules of statutory interpretation, it is not permissible simply to read the words of the subsection in isolation. The legislative history and earlier decisions of the Courts and Tribunals referred to in Inacio inform the proper interpretation which makes clear that the purpose of the retaining structure is a necessary element of the definition.
5. The Appellants cannot overcome the reasoning at paragraph [67] of Inacio. The wooden structure near the boundary line between the two adjoining properties, part of which acts as a retaining wall, was not constructed as a foundation for a dividing fence. It was not constructed for the purpose of providing a foundation or support for the Colorbond fence. It was not, and is not, necessary for the support and maintenance of the fence but a convenient way of installing a fence by attaching it to a pre-existing structure.
6. The flaw in the Appellants' argument can be illustrated by the facts in this case. In 1996, a wooden structure was constructed on the land (which the Appellants subsequently acquired) which acted as a retaining wall in accordance with a development application for the construction of a dwelling on that land.
7. When constructed that structure was not a fence within the meaning of the Act. It was not a structure or fence which in any way attracted potential liability of an adjoining landowner for a contribution under the Act.
8. The fence was later attached to this wooden structure. Many years later when the wooden structure required repair or maintenance the Appellants seek to claim a contribution from the adjoining owner on the basis that by reason of a Colorbond fencing having been attached to the wooden structure it now is a fence within the definition of s 3(c) of the Act.
9. In our view, the Act does not permit such an interpretation or outcome. The wooden structure was never functionally or essentially for the purpose of bounding land. The fact that the wooden structure or retaining wall happened to be in close proximity to the boundary line and the Colorbond fence was then attached to it did not render that structure a "fence" for the purposes of the Act.
10. Moreover, the Appellants do not seek any contribution for repair or maintenance of the Colorbond fence. Their claims relate to the separately constructed wooden structure to which the fence was attached. There is some force in the Respondent's argument that had the wooden structure been constructed in accordance with the applicable Development Approval the fence would stand separately as a dividing fence on or near the actual boundary line.
11. To the extent that the appeal raises a proper interpretation of s 3(c) and is a pure question of law it is dismissed.

1. We do not regard the grounds on which leave to appeal is sought raise any matters of principle, questions of public importance, or matters of administration or policy which might have general application and there is no injustice as a result of the determination of the application. The Tribunal did not rely on opinion rather than fact and did not incorrectly apply the reasoning in Inacio.
2. In our view, the Decision was not against the weight of the evidence but in conformity with the essential facts.
3. The Appellants have not identified any error in the Decision under appeal.
4. In our view, the Tribunal correctly applied the proper interpretation of s 3 of the Act to the facts of the matter.
5. The Appellants may have grounds for complaint about how the structures on their land have been affected by the conduct of various parties. Their remedy does not lie under the Act.
6. We refuse leave to appeal on the grounds raised by the Appellants.
7. Neither party sought any order for costs.

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.