The Owners - Strata Plan No. 11097 v Griffiths

Scope and nature of internal appeals

1. In the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), s 80(2) provides as follows: Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Whether to grant leave to appeal from an interlocutory decision was considered in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 (Champion): 34 … there is no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. 35 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following (citations omitted): 1 It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal; 2 However, the requirement for leave is a filter restricting access to the appeal process; 3 Leave should only be granted where there are substantial reasons to allow an appellate review; 4 Circumstances justifying leave may be an error of principle resulting in substantial injustice. However, these concepts may not be cumulative; 5 There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights; 6 Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal; 7 In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing; 8 Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case; 9 Lastly, subject to the above, the matters set out in Collins at [84(1)-(2)] are also relevant to the exercise of a discretion to grant leave.
3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 and, more recently, in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 the question of what constitutes a question of law was considered. It is not necessary to set out or summarise what was said in those decisions in the circumstances of this case a question of law has clearly been raised.
4. 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 to 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: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
5. 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 Schedule 4 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.
6. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins, at [84], the Appeal Panel stated 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.

Timing

1. The challenged order was made on 7 November 2024 and the Notice of Appeal was lodged on 20 November 2024, within the 28-day time limit imposed by r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules).

Hearing

1. Having identified the relevant documents, oral submissions were made, following in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party.

Documents

1. The Notice of Appeal was received on 20 November 2024 and a Reply to Appeal was submitted on 4 December 2024. Documents lodged by the parties in respect of this appeal were those received from the appellant on 9 December 2024 and submissions for the respondent, received on 16 December 2024.

Notice of Appeal

1. After setting out the wording of the challenged order and the three grounds of appeal which are summarised below, it was suggested that the appeal should be allowed an order should be made and the following order made: 1 Subject to Woollahra Municipal Council confirming that pursuant to cl 5.10(3) od the Woollahra Local Environment Plan 2014 that development consent is not required under cl 5.10(2) for the demolition of the approximately 4.7m section of the existing dividing fence that is currently off vertical and touching the Applicant's building (masonry wall) (Insufficient Fence), or development consent being obtained for the demolition and rebuilding of the Insufficient Fence: a. the Insufficient Fence is to be demolished and rebuilt, and b. the parties are to pay for the fencing works specified in order 1a. above in equal proportions.
2. In the Notice of Appeal, at [12]], it was contended that leave to appeal should be granted for two reasons: 12.1 the Appellant's grounds of appeal involve errors of law, 12.2 the Appellant's grounds of appeal demonstrate an injustice which is reasonably clear, plain and readily apparent which is central to the Tribunal's decision, and it would be unjust to allow the order to stand, and for the Tribunal to make final orders in accordance with that amended order.

Reply to Appeal

1. The Reply to Appeal noted that Ms Sinclair, who represented the appellant, did not attend the first instance hearing on 7 November 2024. Responses to the grounds of appeal referred to aspects of the first instance proceedings, rather than the challenged order. It is noted that the respondent was asserting that the appellant's fence should be removed in its entirety while the appellant was suggesting that only a section 4.7 metres in length should be demolished and rebuilt. There was a suggestion that the appellant was seeking to challenge the proposed scope of work. Documents submitted with the Reply to Appeal included copies of (1) the fencing notice, (2) a report from a consulting engineer, and (3) 13 photographs with accompanying descriptions.

Appellant's submissions

1. Written submissions for the appellant suggested the sole ground of appeal was whether the Tribunal "has jurisdiction under the Act to make an order limited to the demolition of a dividing fence". After referring to cases which discussed what constitutes an error on a question of law, reference was made to ss 3 and 11-14 of the DFA. That was followed by submissions based on what was said in Larney v Johannson [2013] NSWCA 409 (Larney) and Hill v Vicars [2022] NSWSC 828, which were said to establish that an order limited to the demolition of a dividing fence could not be made.
2. In oral submissions, the three grounds of appeal set out in the Notice of Appeal were summarised as follows: 1. There could be no order for demolition of a dividing fence without replacement. 2. Development consent from the local council is required. 3. The order made for the appellant to pay the cost of demolition was contrary to s 7 of the DFA.
3. During oral submissions it was submitted that "the interlocutory order provides for demolition without replacement". It was observed that the order was made in the context of a part-heard hearing, which was listed for further hearing on 31 January 2025. The only basis on which the order was said to be not fair and equitable was that it was not made in accordance with the law. When it was pointed out to Ms Sinclair that there was no ruling, only an order allowing an amendment, her response was that allowing the amendment was an error of law. It was indicated that the appellant was not seeking an order for costs if it succeeded, but that any order for costs if the respondent succeeded was opposed, said to be based on the respondent not having leave to be legally represented and that, by reference to s 60(3) of the NACT Act, there were no special circumstances.

Respondent's submissions

1. Written submissions for the respondent contended that (1) the appellant misunderstood the challenged order, (2) the question which was still before the Tribunal at first instance involved a matter of fact and law, and (3) no error was made on a question of law. It was noted that the challenged order was not purely for the demolition of a dividing fence because it included provision for its replacement, if required by the local council.
2. Further, it was submitted that there were questions of fact that needed determination, with the contended result that the appeal is premature, and that this was a case that was not confined to demolition of the appellant's dividing fence because (1) there would be a replacement fence if the council so required, and (2) if not required by council, the dividing fence would be the respondent's fence , along with any necessary building or engineering works. The order sought by the respondent were that the appeal be dismissed and that the appellant be ordered to pay the costs of the respondent.
3. The remaining pages of the written submissions contained photos which, it was suggested at the outset of the oral submissions of the respondent, should be considered.
4. Referring to submissions going to the merits or otherwise of the respondent's application in any detail is not required because this is an appeal. It is sufficient to note that the issues raised by the respondent include that the appellant's dividing fence (ie wall) has failed, is leaning on the respondent's house, and it said to be creating mould issues. The supplied photographs serve to aid an understanding of the factual context in which the legal issues arise. It was indicated that "there are multiple orders sought, not just the amendment" and suggested that the appellant misunderstood the challenged order because it was not a final order, only changing the orders that were sought.
5. As to costs, it was noted that Ms Sinclair was a lawyer. The respondent's position was said to be that, in a phone conversation with the Tribunal (ie the registry) it was said leave was not needed to obtain legal advice, only if legal representation was sought.

Submissions in reply

1. It was contended that, in Larney, the Court of Appeal had said that a dividing fence could not be replaced with an existing structure. Further, it was suggested that the appeal should be allowed and that we should give directions to the presiding member to achieve a just, quick and cheap resolution of the issues.

Consideration

1. The order which is challenged in this appeal is quoted below, with the wording adjusted to avoid confusion due to the respondent at first instance being the appellant, and the applicant at first instance being the respondent to the appeal. The application is amended to seek an order for demolition of the [appellant's] masonry wall, located wholly on the [appellant's] land, at the [appellant's] cost, which is currently off vertical and touching the [respondent's] building (masonry wall), and an order that subject to local council requirements, no replacement wall is required. The [respondent] no longer claims the other orders in the application, subject to local council requirements.
2. Each of the issues listed above is considered, in turn, below.

Leave to challenge the interlocutory decision.

1. We do not consider leave to appeal should be granted, for the following reasons, the first three of which apply what was said in Champion at [35]: 1. The challenged order involved a matter of practice and procedure and did not determine substantive rights. 2. The application for leave to appeal was made during a hearing, being after the hearing on 7 November 2024 and prior to the resumption of that hearing on 31 January 2025. 3. The appellant will not suffer any injustice because the points raised by the appellant in this appeal can be raised at the resumed hearing. 4. Permitting the application to be amended involved the exercise of a discretion which could only warrant appellate intervention if there was an error of the kind set out in the well-established test set out in the joint judgement of Dixon, Evatt, and McTiernan JJ in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 which may be summarised as (1) acting on a wrong principle, (2) being guided by extraneous or irrelevant matters, (3) mistaking the facts, (4) failing to consider a relevant matter, or (5) a result that is so unreasonable or plainly unjust as to warrant an inference. No such error has been suggested in this appeal. 5. Although the broad ability to amend, subject to a consideration of costs, was narrowed by the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, which recognised the evidence of case management considerations, amendments are more commonly allowed that refused. In this instance, where it would be open to the respondent to issue another fencing notice and commence fresh proceedings, the clearly preferable course was to have all issues argued and determined in one rather than multiple applications. 6. To not permit the issue raised by the amendment to proceed would have the same effect as summary dismissal of that issue, which is only appropriate in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69. 7. The appellant seeks a ruling that the Tribunal cannot order the removal of a dividing fence without replacement, but courts and tribunals have traditionally refused to provide answers to hypothetical questions or to give advisory opinions: Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [10] (emphasis original): The most recent and authoritative discussion of the relevant principles can be found in Hunter Development Corporation v Save our Rail NSW Incorporated (No 2) [2016] NSWCA 375; 93 NSWLR 704 (Hunter Corporation). At [34], Beazley P (as her Excellency then was) quoted the High Court's explanation for the general rule in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47]: Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. 1. One of the appellant's requests was for that we give directions to the presiding member but to do so would involve giving an advisory opinion. 2. As in every other case, the issues raised in these proceedings involve both questions of fact and questions of law. Neither party placed before us the evidence submitted at first instance with the result that we are being asked to determine a question of law in an evidentiary vacuum. 3. The order sought by the appellant (quoted at [16] above) would involve determining the application without having seen the evidence. 4. The order that will be made in these proceedings also depends on the local council which may require some form of reinstatement, such as some form of wall prevent car parking on the appellant's property from damaging the wall of the respondent's home. 5. As was noted in submissions for the respondent, an order for demolition is not the only order sought by her in the first instance proceedings.
2. It is noted that our decision on this issue is sufficient to determine the outcome of this appeal.

Error on a question of law

1. The only decision made on 7 November 2024 was to grant leave to amend. That involved an exercise of discretion which, as indicated above, could only warranty appellate intervention if an error of the kind set out in House was demonstrated. No such error has been suggested in this appeal.
2. It is accepted that the first instance proceedings involve a question of law, namely whether an order can be made for the demolition of the appellant's wall without any order for anything to be done by way of replacement. However, there can be no error on that question of law when that question has not yet been determined: the only order made has been to permit the respondent to seek an order for the demolition of that wall, without any replacement. It will obviously be open to both parties to make submissions on the issue of demolition without replacement, by reference to the DFA and relevant cases. That is sufficient answer to the first of the three grounds of appeal, summarised above at [20].
3. he second ground of appeal, which asserted that development consent from the local council is required, does not raise a question of law. It is clear the order that was made recognised that development consent from the local council may be required. As to the third ground of appeal, any suggestion that the presiding member made an order for the appellant to pay the cost of demolition, contrary to s 7 of the DFA, misconceived the order that was made: no order was made in relation to the costs of demolition; the only order made was for the respondent to be able to seek such an order when the hearing, commenced on 7 November 2024, resumes on 31 January 2025.

Not fair and equitable

1. Two reasons were advanced for the decision not being fair and equitable (quoted at [17] above). They are plainly insufficient.
2. The first reason is superfluous because if there is an error on a question of law it is not necessary to contend that the decision was either not fair or not equitable.
3. There is a misconception in the second reason because the challenged order only allows an amendment and does not either make a final order or suggest that a final order will be made in accordance with that order.
4. Accordingly, the contention that the order made on 7 November 2024 was not fair and equitable is rejected.

Leave to appeal

1. As it has not been demonstrated that the challenged order was not fair and equitable, the question of whether to grant leave to appeal on that ground does not require consideration.

Costs

1. In the Rules, the effect of r 38A is that costs of the appeal are to be determined on the same basis as was the case at first instance. In these proceedings, costs were governed by s 60 of the NCAT Act, the effect of which is that each party is to bear their own costs unless there are special circumstances warranting an order for costs.
2. In s 60 of the NCAT Act, s 60(1) provides that "Each party to proceedings in the Tribunal is to pay the party's own costs" but s 60(2) relaxes that default position by providing that "The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs".
3. The following non-exhaustive list of considerations is set out in s 60(3): 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 3. the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 1. whether a party has refused or failed to comply with the duty imposed by section 36(3), 2. any other matter the Tribunal considers relevant.
4. It is well-established that the adjective "special" requires circumstances that are out of the ordinary but do not need to be extraordinary or exceptional: Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120.
5. It is also necessary to consider whether those circumstances warrant an award of costs: Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [21].
6. Since s 60(2) in the NCAT Act commences with the words "The Tribunal may award costs ...", it is clear the Tribunal has a discretion which must be exercised (BPU v NSW Trustee & Guardian [2016] NSWCATAP 87 at [9]). That discretion must be exercised judicially (eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 at [48]), and not either arbitrarily or capriciously (Oshlack v Richmond River Council [1998] HCA 11 (Oshlack) at [22]).
7. Having considered the matters listed and s 60(3), and the submissions of the parties, we do not consider there are special circumstances in relation to this appeal or that the circumstances of this appeal warrant an order for costs. Even if an order for costs were to be made, it is difficult to see what amount the respondent would be entitled to recover by way of costs for the following reasons.
8. First, since the respondent neither sought nor obtained leave to be legally represented in relation to the appeal, any amount charged by a solicitor in relation to her opposition to the appeal cannot be recovered. The Appeal Panel decision in The Owners - Strata Plan No. 47037 v Peter Clisdell Pty Ltd (No 2) [2018] NSWCATAP 46 at [44] is but one example of a party who was not legally represented at the hearing of the appeal not being awarded costs.
9. Secondly, the respondent was represented by her partner, which is in the nature of self-representation. It is noted that, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29, the High Court confirmed what it had previously said in Cachia. v Hanes [1994] HCA 14, namely that a self-represented litigant may not be compensated for time spent in litigation, the only exception being if that litigant is a solicitor.
10. For the avoidance of doubt, the decision in relation to costs is confined to this appeal and is not intended to have any impact on any application for costs in the first instance proceedings.

Orders

1. For the reasons set out above, the following orders are made: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. Each party is to bear their own costs of the appeal.

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: 06 January 2025