Taylor v Joye

Background

1. The parties were neighbours. There had been various discussions about replacing the dividing fence between them over the year preceding 11 July 2017. On that date, Mr Taylor sent an email to Mr Joye's solicitor seeking an agreement about contribution to the new fence. The solicitor wrote back saying he was seeking instructions and that Mr Taylor should not take any action. Mr Taylor followed up on a number of occasions without success. Upon learning that Mr Joye had placed his property on the market and had agreed a sale, Mr Taylor began proceedings in the Tribunal and without waiting for an order proceeded to get the work done.
2. The Taylors filed application COM 17/42631 on 5 October 2017. They sought orders requiring fencing work to be carried out, and an order determining the manner in which contributions for the fencing work was to be apportioned and other orders sought in an attached letter dated 4 October 2017. Those orders were that, in the event that the Tribunal determined that the appellants' email to the respondent's solicitor of 11 July 2017 did not constitute the notice required by s 11 of the DF Act:

• an order that the appellants could carry out the fencing work required to restore the dividing fence (in this respect the appellants referred to s 11 of the DF Act); and
• an order granting leave to serve a notice under the DF Act (in this respect the appellants referred to s 22 of the DF Act).

1. The hearing was held on 7 March 2018. The Decision records at [25] the appellants' concession that they had not served a notice that complied with the requirements of the DF Act. The Tribunal noted that, the appellants' concession that they had not served a notice pursuant to s 11 of the Act "[a]t first appearance . . . defeats their application": par [26].
2. The Tribunal then considered what it described as "the saving provisions" of the DF Act, namely ss 9 and 22.

Section 9

1. Section 9 provides: 9 CONTRIBUTION WHEN URGENT FENCING WORK IS REQUIRED (1) This section applies to a dividing fence that has been damaged or destroyed (in whole or in part) and in the circumstances requires urgent fencing work. (2) If it is impracticable to serve a notice under section 11 in respect of a dividing fence to which this section applies, an adjoining owner may, without serving such a notice, carry out the urgent fencing work required to restore the dividing fence. (3) The other adjoining owner is liable for half the cost (or a greater proportion if section 8 applies) of the urgent fencing work. (4) Any such liability may be reviewed by the Local Court or the Civil and Administrative Tribunal on the application by that owner to the Court or the Tribunal within 1 month after the work has been completed (or within such later period as the Court or the Tribunal may allow).
2. At [28], the Tribunal referred at some length to the appellants' submissions in relation to s 9. The Tribunal concluded at [32] and [33]: 32. The Tribunal is not satisfied that the circumstances of the retaining wall damage required urgent fencing work notwithstanding the extent of the applicants' argument that it was. The Tribunal is also not satisfied that it was impracticable to serve a notice under section 11 in respect of the dividing fence. 33. As to the alleged urgency, the applicants had been entering into discussions with the respondent's representative since at least June 2016 about the replacement of the retaining wall. They arranged and paid for the brick wall to be stabilised with buttresses in December 2016. If the applicants sought to rely on the [DF Act] for orders that the respondent contribute to the cost of the work that they claimed to be fencing work, then it was open to them then to serve a notice under section 11. However, they elected to pursue an attempt to resolve their dispute without recourse to the [DF Act]. It was only after they became aware that the respondent had sold his land that they sought to invoke the provisions of the [DF Act]. The applicants acknowledge that the intent of the [DF Act] is to allow a land owner to give a notice of proposed fencing work to the adjoining land owner so that an opportunity for both parties to enter into discussion about the proposed fencing work may commence before an application is filed with the Local Court or the Tribunal. The Tribunal does not accept the applicants' argument that they could not serve the notice as they were not aware of the respondent's residential or business address. Mr Taylor in his affidavit gives evidence of his many years' experience as a solicitor before his retirement. Unlike lay people, he would be aware through his experience and knowledge of the means by which service of documents may be effected.

Section 22

1. Section 22 provides: 22 TIME FOR SERVICE OF NOTICES - SPECIAL PROVISION (1) The Local Court or the Civil and Administrative Tribunal may grant leave to serve a notice demanding contribution under this Act on an adjoining owner from whom contribution is sought up to 12 months after the fencing work concerned has been carried out. (2) Leave may be granted only if: (a) the Court or the Tribunal is satisfied that the owner seeking to serve notice has mistakenly taken action in respect of the dividing fence under some other Act, or (b) the Court or the Tribunal considers it to be just or equitable in the circumstances for leave to be granted.
2. Again, the Tribunal referred to the appellants' submissions on this issue. The Tribunal considered those submissions at length: see pars [36] to [58] of the Decision. The Tribunal concluded at [53] to [58]: 53. The purpose of a notice to carry out fencing work is to allow an adjoining owner the opportunity to be informed of proposed fencing work, consider whether they agree to it and allow an opportunity to agree to the proposal or negotiate some other resolution to the proposal before an application can be filed for determination before the Tribunal (or Local Court). 54. That purpose is reinforced in section 11(5) which prevents an adjoining land owner becoming liable to contribute to the cost of a dividing fence if the work is carried out before a fencing notice is served or carried out after service of a notice and before a fencing work is agreed to or before a determination of the Tribunal or Court. 55. To rely on section 22 for leave to issue a notice to carry out fencing work after relying on a withdrawn notice to file an application defeats the purpose of the provisions of the DF [Act]. 56. Despite the submissions as to why it would be just and equitable for the Tribunal to exercise its discretion to order the issue of a notice pursuant to section 11, the Tribunal does not find that that the applicants have satisfied the onus of proof upon them to establish that it would be just and equitable for the Tribunal to exercise its discretion to grant the relief they seek, having regard to all the relevant circumstances when considering the purpose for which the power was conferred with regard to the scope and purposes of the DF [Act]. 57. The applicants had the benefit of their own knowledge, of legal advice, time and opportunity to follow the procedure and give effect to the purpose of the DF [Act]. 58 The Tribunal does not find that it would be just and equitable for leave to be granted for the applicants to serve a notice demanding contribution from the adjoining land owner.

The Grounds of Appeal

1. The appellants filed lengthy written submissions. The appellants make two primary points.
2. The first is that, in relation to s 9 of the Act, the Tribunal's finding that the works were not urgent was "inconsistent" with the facts set out in the appellants' submissions of 14 March 2018.
3. The second is that, in relation to s 22 of the Act, the Decision was "based on an overly narrow interpretation of the scope of the discretion" under that section.

Ground (1): s 9

1. The appellants here make a number of submissions, but in substance the submissions are one and the same, namely that the Tribunal failed to give sufficient weight to the appellants' evidence and submissions. The issue is put in a variety of ways, including that the Tribunal failed to take into account relevant circumstances (namely the evidence as to the likelihood of collapse of the retaining wall and the absence of temporary propping of the concrete block section of the retaining wall), that the Tribunal gave too much weight to the respondent's evidence, and that the Tribunal failed to take into account the appellants' own subjective knowledge.
2. We further note that at [30] of the Decision the Tribunal stated that it had considered all the evidence adduced and submissions made.
3. It is not necessary for the Tribunal to make findings on every argument or every submission, particularly where the arguments advanced are numerous and of varying significance, or are unsupported by any evidence: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443. As the Court of Appeal stated in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2], (adopted in Mifsud v Campbell (1991) 21 NSWLR 725): There are ample statements of this Court and of the High Court to express the duty upon judicial officers as to the giving of reasons. . . . In many cases, however, a judge may, in dealing with large bodies of evidence, be forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression. Judgment writing should not become a process that is oppressive and that produces unnecessary prolixity. Not every piece of evidence must be referred to. That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved.
4. We consider that the Tribunal's reasons sufficiently express the Tribunal's reasons for concluding that the works were not urgent.
5. The appellants' second submission was that the Tribunal erred in finding that it was not "impracticable" to have served a fencing notice under s 11 of the Act. The appellants set out five arguments, none of which cause us to consider that the Tribunal erred in reaching its conclusion.

Ground (2): s 22

1. The Tribunal, at the end of a lengthy discussion of the facts and circumstances relied on by the appellants, did not find that it would be just or equitable for leave to be granted for the applicants to serve a late notice demanding contribution from the adjoining land owner. The core part of the Tribunal's reasoning appears in par [50]: Such a course of action is troubling. Firstly, they rely on the email of 11 July 2017 as a notice required under section 11 of the DFA as the basis of bringing their application. Section 11 (5) defeats an application for a contribution to the cost of fencing work by an adjoining owner without a notice under section 11. Secondly, the applicants withdrew their reliance on the email at the hearing as a notice required under section 11, then sought to rely on the urgent provisions of section 9 of the DFA, determined not to apply in this decision and now seeks a determination under section 22. Finally, the orders sought are against a respondent who was at the time of filing the application no longer the adjoining land owner.
2. The Tribunal's decision in this respect was a discretionary one, s 22 providing that the Tribunal "may grant leave" (ss 22(1)) and leave may only be granted if either of ss 22(1)(a) or 22(1)(b) are established.
3. As the Appeal Panel noted in Clements v Murphy [2018] NSWCATAP 152, discretionary decisions can be challenged on appeal only on the bases outlined in House v R (1936) 55 CLR 499, namely (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
4. The bases for the Tribunal refusing leave appear in pars [50]-[59] of the Decision. We do not consider any of those bases articulated in House are established in this case.
5. Mr Taylor submitted that the Tribunal had fallen into error when it stated at [55]: To rely on section 22 for leave to issue a notice to carry out fencing work after relying on a withdrawn notice to file an application defeats the purpose of the provisions of the [DF Act].
6. It appears to us that the Tribunal was arguably in error when it reasoned that a s 22 notice could not be founded upon an invalid ("withdrawn") s 11 notice. In our view this is precisely one of the situations where s 22 can come into operation. Section 22 is premised upon a purported s 11 notice being ineffective, or not being given at all, or incorrectly served, and allows for a late notice to be given where the Tribunal considers it to be either just or equitable.
7. Mr Taylor further submitted that the Tribunal:

• failed to give adequate reasons for its decision to refuse to allow a s 22 notice to be given;
• had not given separate consideration to the issues of whether it would be just or equitable to permit a s 22 notice to be given.

1. The Tribunal did consider at least some of the matters relevant to the exercise of its discretion to permit a s 22 late notice. This could suggest that the Tribunal did not fall into error in its consideration of the foundation of the s 22 notice in par [55] of the Decision, as it went on to look at various factors relevant to the exercise of the discretion, rather than simply ruling that it did not have jurisdiction and so could not proceed.
2. However, the reasons given by the Tribunal for refusing to exercise its discretion under s 22 were somewhat limited. Among the matters which in our view were relevant, but were not referred specifically in the reasons are that:

• negotiations and discussions about replacing the dividing fence between Mr Taylor and Mr Joye's properties had been going on for some time prior to the work being done;
• the dividing fence was slowly falling to pieces and structural engineers had categorised it as potentially dangerous and Mr Joye had been advised of the engineer's report before the work commenced;
• Mr Taylor had given a purported notice pursuant to s 11 of the DF Act to Mr Joye's solicitor seeking a contribution, apparently in good faith, but in the knowledge that Mr Joye's property was on the market;
• Mr Taylor was warned by Mr Joye's solicitor not to do anything about the dividing fence and that he was seeking instructions from Mr Joye;
• Mr Taylor had followed up Mr Joye's solicitors on several occasions to find out whether there were instructions that he had received;
• Mr Taylor had determined to go ahead with the work anyway without agreement or an order of a Tribunal or Court;
• it would have been open to Mr Taylor to follow the dividing fence procedure with Mr Joye or the new neighbours;
• Mr Taylor had legal advice about the dividing fence and the proper procedure to follow available to him;

1. It was also suggested that the Tribunal fell into error when it applied a test of "just and equitable" in par [56], rather than "just or equitable" which is the wording of s 22 of the DF Act in considering whether to exercise the discretion in s 22 of the DF Act to permit late notice. In other circumstances, the distinction may be a turning point, but in the present case it does not appear to be something which has led to an incorrect outcome. It is difficult in this area to envisage circumstances where it would be just but not equitable to permit late notice, or equitable but not just. In the present circumstances it seems to us that the two words are really synonyms.
2. In the result, we find that an error of law occurred when the Tribunal failed to state with specificity all of the relevant matters which it should have taken into account to reach its decision on the exercise of the s 22 discretion, and thus its reasoning process was unclear and not adequate in the circumstances. For this reason we would allow the appeal.
3. In written submissions in reply the appellants moved from seeking leave to appeal the s 9 DF Act 'urgent work' issue on the merits, to alleging there had been an error of law. In light of our decision to allow the appeal on the s 22 point, it is not necessary to pursue this issue.

Rehearing

1. Our decision to allow the appeal does not conclude the matter. We have sought written submissions from the parties, and both have agreed that it is appropriate for the Appeal Panel to conduct a rehearing, to make a decision in substitution for the decision of the Tribunal, to dispense with an oral hearing and to make our decision on the documentary evidence which was before the Tribunal rather than remit the matter to the Tribunal.
2. Before dispensing with a hearing and determining a matter on the papers being the evidence before the Tribunal it is necessary for the appeal panel to invite and consider written submissions of the parties whether such a course is appropriate: NCAT Act, ss 50(2) to (4).
3. Section 81(2) of the NCAT Act provides that the Appeal Panel may exercise all the functions that are conferred or imposed by the NCAT Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal, and may exercise such functions on grounds other than those relied upon at first instance.
4. We consider this is an appropriate case in which the power to decide the matter ourselves. We have the evidence before the Tribunal and the detailed submissions of the parties. We have taken into account the evidence and the various factors outlined above. The appellants concede that the purported s 11 notice was not valid and that ss 9 and 22 of the DF Act may be called in aid.
5. The evidence was that the dividing "structure" (the Tribunal did not consider the question of whether the structure was a dividing fence) was in a dilapidated and potentially dangerous condition. The evidence was not that the structure was damaged or destroyed in the sense that some external force had broken or eliminated the structure. The damaged or destroyed language used in s 9 of the DF Act is more apt to cover an event such as tree branch falling on to a fence and damaging it; or the fence being swept away by a flood or burnt out by a fire. In those cases the urgency is obvious. The section would not usually be applicable to a dividing structure that was slowly dilapidating even to the point of near failure. We do not consider that s 9 of the DF Act was available to Mr and Mrs Taylor.
6. As to s 22, we find that even though Mr Taylor had made efforts in good faith to reach an agreement with Mr Joye about replacing the dividing structure, no agreement had been reached. Mr Taylor was specifically advised not to do any work on the dividing structure while Mr Joye's solicitor obtained instructions from his client. Mr Taylor had a procedure open to him and had access to legal advice to deal with the reluctance of Mr Joye to reach an agreement. Mr Taylor could also have used the procedure in s 11 of the DF Act to obtain an agreement with the new neighbour, or failing that have taken action in the Tribunal or Local Court.
7. Instead, Mr Taylor in spite of being warned not to proceed decided to do so anyway when alternatives were available. In our view, this is the most weighty of all the matters we have taken into account as to whether it is just or equitable for the Appeal Panel to exercise the Tribunal's discretion to permit the s 22 late dividing fence notice.
8. Our conclusion is that Mr Taylor should not be permitted to serve a notice pursuant to s 22 of the DF Act.

Extension of time

1. Rule 23(3)(b) of the Civil and Administrative Rules 2014 provides that for appeals of this nature (that is appeals other than residential matters), the Notice of Appeal must be filed within 28 days on which the appellant became entitled under the enabling legislation to make the application.
2. The Tribunal decision was published on 28 June 2018. Accordingly, the Builder should have been filed by 26 July 2018. The Notice of Appeal was filed on 1 August 2018. Therefore, the Notice of Appeal was filed six days late.
3. The appellants say that, because of their absence overseas until 31 July 2018, it was not possible to file their Notice of Appeal in the time required by the Rules. They submit that:

• strict compliance with the Rules would work an injustice upon the appellants in all the circumstances, given the difficulty in properly preparing an appeal whilst travelling overseas on a holiday, and the inability of the appellants to file the appeal papers and pay the required fee when physically not in the country;
• the delay in filing within the required time period is only 6 days;
• the appellants emailed the Registry (with a copy to Mr Sunman, the respondent's solicitor) on 25 July 2018 advising of their intention to file an appeal as soon as possible after 1 August 2018;
• the respondent cannot be said to have been prejudiced by the 6 day delay;
• the appellants have a very arguable case;
• assuming that (absent the six day delay in filing the application) the appeal would be successful, to refuse to grant an extension of time for the lodging of the appeal would be unjust on the appellants.

1. The application to extend the time for filing the Notice of Appeal is opposed by the respondent. He says that notwithstanding the appellants' absence from Australia, they were able to exchange a contract for sale of their property on 19 July 2018.
2. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel stated at [22] that generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

• the length of the delay;
• the reason for the delay;
• the appellants' prospects of success, that is usually whether the applicant has a fairly arguable case; and
• the extent of any prejudice suffered by the respondent (to the appeal),

1. Although the appellants' explanations are less than satisfactory, given that the appeal has been allowed, and the matter re-determined by the Appeal Panel we have granted leave to appeal out of time.

Costs

1. The appellants have been unsuccessful. The respondent has reserved its position on costs. We direct that the respondent should file and serve submissions as to costs by 4 January 2019. The appellants may respond by 11 January 2019. Submissions should be limited to two pages.
2. The Tribunal proposes to determine any costs application on the papers and without a formal hearing. If any party thinks the Tribunal should conduct a hearing, they should address that matter in their submissions.

Orders

1. The orders of the Appeal Panel are: 1. Leave to extend the time to file the Notice of Appeal granted. 2. Appeal allowed. 3. Application dismissed. 4. Respondent to file and serve submissions on costs by 4 January 2019. 5. Appellants to reply by 11 January 2019.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2018