This appeal arises out of dividing fences dispute and a decision in renewal proceedings by Senior Member Meadows ('Meadows SM'). The relevant properties are located in Mayfield, NSW (a suburb of the city of Newcastle, NSW).
The appellant is an owners corporation. On its land is a commercial building where an Aldi supermarket is located, and car parking facilities. The supermarket contains a loading dock used by delivery trucks involving right of way access between its property and the respondent's property at various positions. The right of way access arose from the original Development Consent to construct the commercial premises.
The respondent ('Five D') is the owner of neighbouring residential premises in proximity to the loading dock of the supermarket.
In 2017, Five D brought proceedings in the Tribunal under the Dividing Fences Act 1991 (NSW) ('the DF Act') claiming that the existing fence between the respective properties was not a sufficient dividing fence, and seeking that a replacement fence be constructed with a cost contribution from the owners corporation.
The matter was heard and determined by Thode SM on 16 May 2018. Written reasons were provided with the decision. Relevantly, the Tribunal found that the current fence was not a sufficient dividing fence, and ordered the existing fence be demolished and replaced with the following:
"A new treated three rail pine paling fence 2.1 meters high measured from the surface level of the applicant's land supported by galvanised steel posts core drilled and concreted in if deemed necessary by the contractor (sic) is to be supplied and erected for the entire length of the common boundary with the palings nailed from the applicant's land" (Order 1 (b)).
The Tribunal made other orders to facilitate the fencing work, being that the parties were to accept a quotation from a fencing contractor that was in evidence (All Hills Fencing) if it remained current; and if the quotation had been superseded or increased the parties could obtain three further quotes from licensed fencing contactors (including an updated quote from All Hills Fencing) between them, and accept the median quote.
The Tribunal also ordered that Five D engage the fencing contractor to perform the work set out in Order 1 (b) and pay the cost of the work, with Five D able to recover 50% of the cost from the owners corporation. The work was to be completed within 3 months of the date of the Tribunal orders.
Five D lodged an appeal to the Appeal Panel from the decision of the Tribunal dated 16 May 2018, but the appeal was subsequently dismissed due to the non-appearance of Five D.
Five D had lodged a Development Application with the local Council regarding construction of the replacement dividing fence. On 8 June 2018, the local Council wrote to Five D stating it could not consider the Development Application because there was insufficient and/or conflicting information. Further, it was stated:
"The application cannot be accepted as the proposed fence is on the adjacent property, and the owner of that property has to sign as owner. This is a Legislative requirement that council cannot change. If you still require a fence, you may need to look at other options to construct a fence on your own property."
In 2019, the owners corporation commenced renewal proceedings in the Tribunal under Sch 4 Cl. 8 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act') on the basis that the orders of the Tribunal had not been complied with.
On 21 May 2019, Thode SM made further orders, relevantly as follows:
1. Five D approach All Hills Fencing for an updated quote by 24 May 2019.
2. The date for compliance with Oder 1 (b) of the Tribunal dated 16 May 2018 was extended to 2 July 2019.
3. If the renewal application was not withdrawn and was to proceed, directions were made regarding the filing and serving of documentary evidence.
The matter again came before the Tribunal on 15 August 2019, when Member Bliim made orders setting the matter down for a special fixture hearing and making further directions regarding the filing and serving of documentary evidence.
By this stage, Five D had demolished the existing fence and engaged in construction of a replacement fence comprised of wooden palings of the type and dimensions as ordered by Thode SM in the original proceedings.
Prior to that occurring, there had been a dispute between the parties regarding Five D allegedly demolishing the existing fence and leaving the debris on the property of the owners corporation; and constructing a metal panel fence rather than a wooden paling fence. It is unnecessary to make any further comment about that dispute, because by the time the proceedings were heard by Meadows SM a wooden paling fence had been constructed and the debris removed.
As part of the owners corporation's documentary evidence, a report by a surveyor (Mr Marc Terry of Terry Survey and Development Consulting) dated 20 August 2018) had been filed with the Tribunal and served on Five D ('the survey report').
No survey had been part of the evidence in the original proceedings that were subject of the orders of Thode SM dated 16 May 2018.
The report of Mr Terry stated:
1. The new timber fence encroaches onto the eastern side of the dividing boundary by up to 1.95 m and sits up to 0.79 m outside of the Right of Way.
2. The western face of the long straight section of the Concrete Block wall is generally consistent with the boundary line, the original boundary peg was found at the rear of the site (see photo, peg is sprayed red).
3. The gutters and entrance brickwork…overhang the Right of Way, as the terms of the ROW do not limit its height this is an impediment to your use of part of the ROW.
4. The position of the newly constructed fence and gate restrict your use of approximately 12.5 m of the ROW (see photo), the ROW extends into the lot to just beyond the start of the concrete wall block".
The owners corporation also relied on an email dated 10 July 2019 and a diagram from Mr Harborne, who was described as the person responsible for "grounds maintenance" of the owners corporation's premises for the "past 5 years". The diagram set out what Mr Harborne believed was the different position between the old fence and the new fence.
According to the diagram of Mr Harborne, at a position where the fence adjoined a "besa (sic) brick wall" it departed from the previous fencing line by encroaching on a garden bed on the land of the owners corporation by approximately 2 mtrs; and by approximately 30 cms at the "lower end" of the garden bed.
On 23 October 2019, the matter was heard by Meadows SM. The Senior Member dismissed the renewal proceedings and gave oral reasons.
At the hearing on 23 October 2019, both parties had filed and served documents that were admitted into evidence.
However, the owners corporation had not filed and served the correspondence from the local Council dated 8 June 2018 regarding rejection of Five D's Development Application, nor correspondence between the strata manager of the owners corporation and Five D regarding debris on the property of Five D arising from demolition of the existing fence.
During the course of the hearing on 23 October 2019, the owners corporation sought to tender those documents but they were not admitted into evidence on the basis that they had not been filed and served in accordance with Tribunal directions; and were of limited if any relevance (T:P:14:174-198)
The owners corporation obtained a sound recording of the hearing and a transcript of the hearing in the appeal proceedings.
At the hearing before Meadows SM, the owners corporation argued the fencing work orders of Thode SM had not been complied with because:
1. the fence was not in the position of the previous fence or on the boundary line but had been constructed in a manner that encroached upon the land of the owners corporation.
2. the fence restricted rights of way access the owners corporation had over Five D's land.
3. construction of the fence had damaged a garden bed on the owner's corporation's land.
The owners corporation sought orders that relevantly included that Five D demolish the fence and re-construct a fence of the same type and dimensions as set out in the orders of Thode SM on the common boundary line as set out in the survey report of Mr Terry; and that Five D pay damages in regards to the cost of restoring the garden bed to its former condition; repairing garden edging; and removing debris.
In regard to the claim for damages, the owners corporation had provided a quotation from Mr Harborne dated 29 April 2019 in the sum of $265.
The only people who gave oral evidence at the hearing before Meadows SM were Mr Mohammed and Mr Kay for the respective parties.
[2]
Decision Under Appeal
The renewal application was dismissed. The oral reasons of Meadows SM can be relevantly summarised as follows:
1. Five D had not "strictly complied" with the orders of the Tribunal dated 16 May 2018 because: (i) the fence was constructed outside the time period stipulated; and (ii) the palings were nailed from the owners corporation's side of the fence rather than Five D's side of the fence (T: 20: 252).
2. It would not be reasonable to order the demolition and re-construction of a fence that was in good condition; relatively expensive; and had been the subject of ongoing disputes between the parties only because the palings had been nailed on the 'wrong' side of the fence (T: 21: 256).
3. The new fence was not on the boundary line between the two properties. However, Thode SM had not ordered the fence be constructed on the boundary line. The order was that the fence be constructed "for the entire length of the common boundary" which meant the fence was to be constructed "similar to the old fence and in the same position not on the boundary line" (T:21:255).
4. The new fence was substantially in the same position as the old fence, with the exception of a "slight difference in the width of the garden bed" (T:21: 257).
5. Limited evidentiary weight was given to the survey report of Mr Terry, because it did not set out the position of the original fence or the distance in which the replacement fence departed from the original fencing line. Rather, the survey report sets out the position of the replacement fence in comparison to the common boundary (T: 20: 253).
6. The difference in the width of the garden bed did not affect the "rights" of the owners corporation or an amenity on the owner's corporation's side of the fence (T: 21: 257)
7. The evidence contained in the diagram of Mr Harborne did not accurately reflect any difference of position of the new fence in comparison to the position of the old fence, because it was not consistent with a comparison of the photographs of the old fence and photographs of the new fence (T: 21: 258).
8. No accurate measurements had been provided of any difference between the position of the old fence and the new fence (T:22: 259).
9. The fence that had been constructed by Five D was a "sufficient dividing fence" and was "sufficiently in compliance" with the orders of Thode SM, "except where the palings are nailed and the slight narrowing of the garden bed, neither of which appear to have any impact on the usefulness of the fence and compliance with Thode SM's orders" (T:22: 260).
10. The replacement dividing fence was a sufficient dividing fence (T:22: 261).
11. Each party was to bear its own costs.
[3]
Scope and nature of internal appeals
Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
Internal appeals from the Consumer and Commercial Division involve consideration of whether there has been any error on a question of law; or any error other than an error on a question of law sufficient to grant leave to appeal, including having regard to the considerations in Sch 4 Cl 12 of the NCAT Act. They are not simply an opportunity for a dissatisfied or aggrieved party to re-argue the case they put at first instance: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law:
1. Whether there has been a failure to provide proper reasons.
2. Whether the Tribunal identified the wrong issue or asked the wrong question.
3. Whether a wrong principle of law had been applied.
4. Whether there was a failure to afford procedural fairness.
5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations.
6. Whether the Tribunal took into account an irrelevant consideration.
7. Whether there was no evidence to support a finding of fact; and
8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by cl 12(1) of Schedule 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 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 v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]:
13. It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
[4]
Submissions and evidence
In deciding the appeal, we have had regard to the following, in addition to the oral submissions made at the Appeal Panel hearing:
1. Notice of Appeal.
2. Reply to Appeal.
3. Owner's Corporation's submissions dated 23 December 2019, containing submissions; transcript of evidence; and the documentary evidence before the Tribunal at first instance.
4. Five D's submissions dated 14 January 2019.
[5]
Grounds of Appeal
The grounds of appeal were:
1. The Senior Member had erred by finding that Thode SM's had ordered the new fence be constructed on the existing fencing line rather than on the common boundary of the properties.
2. The Senior Member had erred by finding that the garden bed was on the owner's corporation's property, when it was partly on the property of the owners corporation and partly on the property of Five D.
3. The Senior Member had erred by misinterpreting the evidence regarding the width of the garden bed by not considering the photographs in the context of the diagram of Mr Harborne and the survey report.
4. The Senior Member erred in respect of the jurisdiction of NCAT because he failed to consider orders sought under ss 3 and 8 of the DF Act that Five D restore the garden bed on the owners corporation's land that it had "damaged or destroyed".
5. The Senior Member erred by allowing into evidence an A3 diagram plan that had been part of Five D's Development Application, but refusing to allow into evidence the entire Development Application; the letter of the local Council refusing to consider the Development Application; and an emailed letter from the owner's corporation's strata manager to Five D dated 18 April 2019.
6. The Senior Member had erred in finding that the new fence did not affect the owners corporation's rights of way.
7. Mr May had given "false evidence" at the hearing.
[6]
Time to Appeal
The appeal was filed on 19 November 2019 and is within the prescribed time period under Cl 25 (4) (c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
[7]
CONSIDERATION
The starting point is that Meadows SM was determining a renewal application under Sch 4 Cl 8 of the NCAT Act.
Sch 4 Cl 8 of the NCAT Act states as follows:
8 Renewal of proceedings in respect of certain Division decisions
(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4) When proceedings have been renewed in accordance with this clause, the Tribunal:
(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or
(b) may refuse to make such an order.
(5) This clause does not apply if:
(a) the operation of an order has been suspended, or
(b) the order is or has been the subject of an internal appeal.
The principles pertaining to renewal proceedings in the Consumer and Commercial Division of the Tribunal have been considered in detail by the Appeal Panel in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 and Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 .
Those principles were relevantly summarised by the Appeal Panel in Minifie v Maxwell [2020] NSWCATAP 30 at [37]-[41]. In essence:
1. Renewal proceedings are a simple and practical method of enforcing and promoting compliance with Tribunal orders:
2. Jurisdiction arises if a party in "whose favour" an order has been made brings proceedings within 1 year of the date compliance with the order was due; and proves that the order has not been fully complied with.
3. If the order has not been fully complied with (or not complied with at all), the Tribunal must focus upon what, if any, appropriate orders should be made to do justice between the parties, with refence to the original order made and all relevant subsequent circumstances.
4. A renewal hearing is not a re-hearing of the original dispute, or a re-consideration of the merits of the original dispute; but to consider what to do next given the non-compliance with the original order.
5. In appropriate circumstances, in a renewal application the Tribunal may consider causes of action and remedies which were not available in the original proceedings.
In this matter, proceedings had been commenced within the 1-year period from the date of compliance with the date of constructing the fence. An order to construct a fence in DF Act proceedings in the Tribunal is an order made in favour of both parties, irrespective of which party is ordered to construct the fence. Accordingly, the Tribunal had jurisdiction to consider the renewal proceedings.
Meadows SM clearly considered whether or not the orders of Thode SM had been complied with, and if so the extent of non-compliance. The Tribunal found that there was no order made by Thode SM that the fence be constructed on the common boundary between the two properties.
Such a finding was clearly correct. The orders of the Tribunal dated 16 May 2018 were that the fence be constructed "along the entire length of the common boundary". Had Thode SM intended that the replacement fence be constructed precisely upon the common boundary, the order would have stated that the fence be constructed upon the common boundary and provided a mechanism of identifying the common boundary in the orders.
In the proceedings before Thode SM; neither party had obtained a survey report; and neither party had served a notice under s 18 of the DF Act regarding an intention to have the common boundary line defined by a registered surveyor if the parties could not agree on the common boundary line. As Meadows SM correctly found, s 14 (1) (a) of the DF Act does not stipulate that the Tribunal must order that a replacement fence be constructed on the common boundary between two properties. Rather, the Tribunal can (and Thode SM did) order that the replacement fence be constructed on the existing fencing line, irrespective of whether or not it was on the common boundary.
In respect of failure to comply with the orders of Thode SM, Meadows SM found that there had been "substantial" compliance with the orders, but that the orders had not been complied with inconsequentially, in regard to:
1. the work being completed after expiration of the date of compliance under the orders;
2. (ii) the palings being nailed on the "wrong" side; and
3. the position of the fence departing from the previous fencing line into the garden bed area.
There was no factual dispute that the fencing work had been completed after the expiration of the date of compliance; nor that the palings had been nailed from the owners corporation's side of the fence rather than Five D's side of the fence.
We are not satisfied that any error has been demonstrated in respect of the factual findings of Meadows SM that non-compliance in respect of such issues was inconsequential and minor, in circumstances where the replacement fence had been constructed and was of the type and height of the fence ordered by Thode SM.
There was clearly a factual dispute at the hearing on 23 October 2019 as to whether the position of the fence departed significantly from the previous fencing line in proximity to the garden bed. Meadows SM made a factual finding that the departure from the fencing line was not significant and did not cause the newly erected fence to fail to be a "sufficient dividing fence" under s 4 of the DF Act. We will deal with this issue in greater detail later in the decision.
A fair and complete reading of the reasons of Meadows SM also makes clear that he considered whether there had, or had not, been "substantial" non-compliance with the fencing work orders made by Thode SM.
Sections 15 and 16 of the DF Act state as follows:
15 Enforcement of agreements and orders
(1) If an agreement is reached by adjoining owners or an order is made by the Local Court or the Civil and Administrative Tribunal and an adjoining owner bound by the agreement or order fails within the required time to perform his or her part of the agreement or to comply with the order, the other adjoining owner:
(a) may carry out the fencing work as agreed on or as determined by the order, and
(b) may recover from the defaulting adjoining owner the amount agreed or ordered to be paid by that adjoining owner or (if the agreement or order does not specify the amount to be paid) half the cost of the fencing work carried out.
(2) The required time is the time specified in the agreement or order or, if no time is specified, within 3 months after the making of the agreement or order.
16 Substantial compliance sufficient
(1) Substantial compliance with the terms of any agreement or order referred to in section 15 is sufficient for the purposes of this Act.
(2) However, the adjoining owner who carries out the fencing work is liable to the other adjoining owner for any defect or omission in the fencing work.
Section 16 (1) of the DF Act states that "substantial compliance with the terms of any…order referred to in section 15 is sufficient for the purposes of this Act". Although s 16 is referring to an order that has not been complied with in circumstances where the adjoining owner has elected to perform the work and then seek recovery from the defaulting adjoining owner, whether or not there has been "substantial compliance" with the order is clearly relevant in a renewal application, because if there has been substantial (but not complete) compliance with the orders then the Tribunal may exercise its discretion not to make any remedial orders in the renewal proceedings because the interests of justice do not require it to do so.
The practical effect of the Tribunal not being satisfied that any discretionary remedial orders should be made in the renewal application, because the non-compliance with the original order to perform fencing work is not substantial, will result in the dismissal of the renewal application. That was the approach taken by Meadows SM and it involved the application of the correct legal principles in the context of a renewal application arising from orders of the Tribunal to perform fencing work under the DF Act.
Further, in renewal proceedings involving construction of a replacement dividing fence, it is relevant to consider whether or not the replacement fence constructed was a "sufficient dividing fence". The Tribunal has no jurisdiction in the primary application where an existing fence is a sufficient dividing fence within the meaning of s 4 of the DF Act, although different considerations may apply in renewal proceedings where a fence has been constructed on the land of a party to frustrate compliance with the fencing orders made by the Tribunal: Minifie v Maxwell [2020] NSWCATAP 30.
Whether a fence has been positioned on the common boundary is a relevant consideration, but the mere fact a fence is not constructed on the boundary is not determinative of it failing to be a sufficient dividing fence. Whether a fence is a "sufficient dividing fence" is a matter of degree. Applicable principles regarding s 4 of the DF Act are set out in Purcell v Chadwick [2018] NSWCATAP 250 at [28]; and Nicholls v Fortmann [2020] NSWCATAP 52 at [32]-[33].
We now deal with the specific grounds of appeal as follows:
[8]
Ground 1-Construction of the Replacement Fence At A Position Not On The Common Boundary
We have dealt with this issue earlier in our reasons. There was no order by Thode SM that the replacement fence be constructed on the common boundary, and no error in the findings of Meadows SM in regard to this issue.
[9]
Ground 2-The Garden Bed Was Between Both Properties Rather Than On the Property of the Owners Corporation
Meadows SM referred on two occasions in the reasons to the garden bed being on "Aldi's property" (sic). This was a factual finding. The survey report appears to show the garden bed to be between both properties at the point where it intersects with the concrete block wall, although Mr Terry had not provided any reference to the "garden bed" in the survey report.
However, we are satisfied that when read completely and fairly, the reference in the reasons by the Senior Member to the garden bed being "on Aldi's property" is a reference to the garden bed at the position where the replacement timber fence (referred to in the survey plan contained in the report of Mr Terry as "new timber fence") intersects with the garden bed on the owners corporation's property, and then at an angle joins the concrete block wall.
The significant factual dispute in this matter at the hearing before Meadows SM did not involve whether the garden bed straddled both parcels of land, but the extent to which the position of the "new timber fence" was at a different angle from the point at which it joined the concrete block wall in comparison to its previous position and encroached (or further encroached) on the land of the owners corporation where the garden bed was located.
In regard to the position of the fence, Meadows SM clearly considered evidence including the contrasting oral evidence of Mr Mohammed and Mr Kay; photographs of the area (both before and after the orders made by Thode SM and the construction of the replacement fence); and the survey report and plan of Mr Terry. The findings regarding the position of the new fence were factual findings and there was evidence to support the findings. The ambiguous reference to the garden bed being on "Aldi's property" is not an error on a question of law.
[10]
Ground 3- Misinterpretation of the Evidence Regarding the Position of the Fence
The Senior Member clearly considered the survey report; the diagram of Mr Harborne; the photographic evidence; and the oral evidence of Mr Mohammed and Mr Kay regarding the position of the replacement fence and the original fence. The reasons for not accepting that the diagram of Mr Harbone was an accurate reflection of the position of the replacement fence in comparison to the original fence were clearly set out. The Senior Member also set out why he was not satisfied that the survey report of Mr Terry provided assistance in determining this issue, rather than the position of the replacement fence in the context of the common boundary between the two properties.
There was evidence to support the factual findings of the Senior Member that the replacement fence did not significantly depart from the original fencing line; and the findings were not clearly unreasonable or irrational.
No error on a question of law has been established. Any alleged error goes to the weight of the evidence, and we will return to that issue when dealing with leave to appeal under Sch 4 Cl 12 of the NCAT Act.
[11]
Ground 4-Failure to Consider the Claims Under ss 3 and 8 of the DF Act
Section 3 of the DF Act is the 'definitions' provision of the DF Act, and does not contain causes of action or remedial orders that can be made if breach is established.
Section 8 of the DF Act states:
8 Contribution where negligent or deliberate act
(1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.
(2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.
(3) In determining an adjoining owner's liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.
The complaint by the owners corporation was that the actions of Five D in demolishing the original fence left debris on its property; and its actions when constructing the replacement fence damaged the garden bed on the property of the owners corporation.
Section 8 of the DF Act only involves fencing work to restore "a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner…" The original fence was not damaged or destroyed by either party, it simply fell into disrepair. The work to demolish the existing fence and construct the replacement fence was performed pursuant to the orders of Thode SM.
Any damage to the land of the owners corporation arising from the demolition of the original fence and the construction of the replacement fence clearly does not fall within s 8 of the DF Act. Any causes of action arising from that issue fall outside the scope of the DF Act; and accordingly fall outside the scope of any orders the Tribunal could make in renewal proceedings.
No error on a question of law has been established in regard to the Senior Member's failure to consider the owners corporation's claim under ss 3 and 8 of the DF Act.
[12]
Ground 5-Admission and Rejection of Documentary Evidence Regarding Rights of Way
The Senior Member found that the position of the replacement fence did not affect the owners corporation's rights of way between the two properties. This logically follows from the finding that the replacement fence was constructed on the line of the original fence, other than a minor diversion into the garden bed area of the owners corporation.
Evidence was given at the hearing by Mr Kay that the rights of way of the owners corporation were not affected; and there was no evidence of any practical restriction on rights of way, such as delivery trucks having their access restricted to the loading dock by reason of the position of the replacement fence.
The Senior Member rejected a number of documents Mr Mohammed sought to tender at the hearing which had not been filed and served in accordance with Tribunal directions; and were also of limited or no relevance. At the hearing, Mr Mohammed had repeatedly raised issues relating to the 2018 Development Application lodged by Five D pertaining to the replacement fence. The Senior Member held that a number of such submissions and documents were not relevant.
Under s 36 (1) of the NCAT Act, the Tribunal must concentrate on the just, quick, and cheap resolution of the "real issues" in dispute. This is assessed objectively, not by reason of the subjective belief of the parties as to what is important to their arguments. Under s 36 (3) of the NCAT Act, parties have a duty to co-operate with the Tribunal to facilitate the just, quick, and cheap resolution of the real issues in dispute.
No error was made by the Senior Member in refusing to admit documents sought to be tendered by the owners corporation that had not been filed and served in accordance with Tribunal directions (and if so admitted may have caused unfairness to Five D and invited consideration of an adjournment of the hearing) in circumstances where they had limited or no relevance to the real issues in dispute.
During the hearing, the owners corporation sought to tender a document from the 2018 Development Application, being the A3 plans of the replacement fence. However, as Meadows SM pointed out in rejecting the tender (T: 13:165-166) that document was already in evidence. Accordingly, there was no error of law in rejecting its tender by the owners corporation.
In regard to the letter from the local Council dated 8 June 2018, that correspondence simply stated that, prima facie, the Development Consent application regarding the replacement fence identified the position of the fence as being on the owners corporation's land. The correspondence made no reference to the position of the fencing line of the original fence, which may also have been on the owners corporation's land.
A real issue in dispute was whether the replacement fence significantly departed from the fencing line of the original fence, and the letter of the Council dated 8 June 2018, if admitted into evidence, could not rationally affect (directly or indirectly) the assessment of the probability of whether the position of the replacement fence significantly departed from the fencing line of the original fence.
The correspondence of the owners corporation's strata manager regarding complaints of debris and that Five D had "illegally" removed the original fence was also of no relevance to proving any of the real issues in dispute in the renewal proceedings.
No error on this ground is made out.
[13]
Ground 6- The Senior Member Had Erred In Finding That The New Fence Did Not Affect The Owners Corporation's Rights Of Way.
The findings of Meadows SM on this issue involved the weighing and assessment of the respective evidence of Mr Mohammed and Mr May; together with the documentary evidence including the photographs of the fence before the orders of Thode SM and after construction of the replacement fence.
There was evidence to support the factual findings of the Senior Member, and those findings were not obviously unreasonable or irrational. This ground of appeal is, in substance, a 'weight of evidence' issue involving Sch 4 Cl 12 of the NCAT Act.
[14]
Ground 7-Mr May Had Given False Evidence
This ground does not, in its terms, allege error by the Tribunal. However, we were prepared to consider it as alleging that the Tribunal gave improper weight to the evidence of Mr May. Having considered the transcript of the hearing and the documentary evidence of the parties, we do not accept that, assessed objectively, Mr May gave deliberately false evidence that misled the Senior Member into error. A finding that a party has deliberately lied is not to be made lightly and is not made out here.
[15]
Errors Other Than Errors of Law Requiring Consideration of Sch 4 Cl 12 of the NCAT Act
A number of the grounds of appeal, when scrutinized, do not raise errors of law, but assertions that the owners corporation may have suffered a serious miscarriage of justice because the factual findings of Meadows SM were against the weight of evidence and that the decision was not fair and equitable.
In Collins v Urban, the Appeal Panel stated at [77]:
"As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, 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" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].
(2) the decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe the ground upon which a jury verdict can be set aside) when 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Ltd v Stein Heurte SA [2013] NSWSC 266 at [153]."
As we have set out above, Meadows SM had competing evidence to assess which, on the findings made, properly led to the conclusions drawn.
As we set out above, we are not satisfied that the conduct of the hearing or the decision of Meadows SM involves a denial of procedural fairness to the owners corporation, in respect of the material it was allowed to rely on, and thereby is unjust or inequitable
We are not satisfied that the evidence in its totality preponderates so strongly against the conclusion of the Tribunal or that it can be said the conclusion was not one that a reasonable Tribunal Member could reach on the available evidence.
Accordingly, without it being necessary to further consider whether the criteria identified at para [84] of Collins v Urban are met, we are not satisfied that the appellant may have suffered a substantial miscarriage of justice for any of the reasons set out in Sch 4 Cl 12.
[16]
Conclusion
Leave to appeal is refused and the appeal is dismissed.
[17]
ORDERS
1. Leave to appeal is refused.
2. The appeal is dismissed.
[18]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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
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Decision last updated: 15 June 2020