Uddin v Truong

NCAT Appeal Panel|2022-08-09

REASONS FOR DECISION

These reasons concern a dividing fence dispute.
The appellants and the respondents share a common boundary. The respondents commenced proceedings COM 21/52234 against the appellants under the Dividing Fences Act 1991 (NSW) (the DF Act) asserting the boundary fence was not sufficient and that orders should be made concerning its construction, position and who should pay the costs of the fencing work.
On 23 May 2022 (May hearing) the Tribunal made orders (decision) as follows: 1. By consent the applicants are to construct in a proper and workmanlike manner a dividing fence along the boundary of the parties' adjoining properties at the front of the properties (approximately 15 metres in length). 2. By consent the front dividing fence is to be constructed from colourbond material in the colour Woodland Grey and is to be 1.2 metres in height. 3. By consent the respondents are to pay the fixed sum of $421.49 to the applicants by way of the respondent's contribution to the costs of the front fence within 7 days of completion of the front fence. 4. By consent all other costs of the front fence construction are to be borne by the applicants. 5. By consent the applicants are to construct in a proper and workmanlike manner a dividing fence along the boundary of the parties' adjourning properties at the rear of the properties (approximately 27 metres in length). 6. By consent the rear dividing fence is to be constructed from colourbond material in the colour Woodland Grey and is to be 1.8 metres in height when measured from ground level on lot 10 side of the boundary, being the applicant's property. 7. By consent the rear dividing fence is to include treated pine sleepers, as required beneath the fence but the fence must remain 1.8 metres in height when measured from ground level on lot 10 side of the boundary. 8. By consent the applicants are to pay 100% of the costs of demolishing any existing rear dividing fence and constructing the new rear dividing fence, including sleepers. 9. By consent, in the event the Local Council takes issue with the height of the rear fence given it will be higher than 1.8 metres from ground level in some places when measured on the respondent's side of the boundary inclusive of the height of the sleepers, the applicants are to rectify any issues raised by Council to make the rear fence compliant with Council requirements at the applicants' own cost. 10. By consent both the front and rear fences are to be constructed upon the boundary as determined by New South Wales Land Registry Services in application AR984866. 11. By consent once the outcome of application AR984866 pending before the New South Wales Land Registry Services is to hand the applicants are to provide 14 days written notice to the respondents of the date for commencement of the fencing work and the approximate date for completion. 12. The respondents' claim for costs of his registered surveyor, costs of the application to the New South Wales Land Registry Services and associated costs is refused. Oral reasons were given.

Notice of Appeal and hearing of the appeal

The appellants appeal the decision by Notice of Appeal filed 20 June 2022. The appeal was filed in time.
The Notice of Appeal states that the appellants were waiting on a written statement of reasons prior to providing the grounds of appeal and details of the orders sought. Written reasons were provided by the Tribunal on 5 July 2022 (Written Reasons/ WR). The appellants also sought leave to appeal on grounds other than a question of law, asserting that the decision was not fair and equitable or was against the weight of evidence. Again, the appellants said they were waiting on the written reasons for decision. However, they identified the evidence they wished to rely upon and said that the Tribunal should have given more weight to the evidence concerning the costs of the fence and who should contribute to those costs.
The appeal was listed for call over and orders made for the filing and service of evidence from the proceedings at first instance. This included filing the sound recording and a transcript if relied upon, and submissions. The parties provided multiple bundles of documents, some of these provided late and some which constituted new evidence.
Unfortunately, the sound recording of the May hearing apparently failed. However, the appellants provided an affidavit from the first appellant, Mr Uddin, affirmed 22 July 2022 (Uddin affidavit), setting out what he says occurred at this hearing.
The appeal was initially listed for hearing on 9 August 2022. An issue arose at this hearing concerning whether the affidavit setting out what happened at the hearing at first instance was correct. We permitted cross-examination of Mr Uddin by the respondents on this issue. Because of the time taken in dealing with this aspect of the appeal, the appeal was adjourned part heard. The hearing concluded on 8 September 2022. On 9 August 2022 directions were made to permit further evidence in relation to this aspect of the appeal. The respondents subsequently filed affidavits about what they say was said at the May hearing. We will return to this evidence and its relevance to the disposition of this appeal below.
At the hearing of the appeal the following material was received and marked for identification: On 9 August 2022: 1. MFI 1 - appellants' bundle of documents dated 16 May 2022; 2. MFI 2 - appellants' bundle of documents dated 28 March 2022; On 8 September 2022: 1. MFI 3 - appellants' bundle of invoices handed up at the hearing on 8 September 2022.
In addition, the affidavits of the first respondent, Mr Jason Truong and the second respondent, Sonia Truong, that had been filed and served on 30 August 2022, were marked MFI 4 and MFI 5 respectively. These are found in the Respondents Bundle (RB) filed 30 August 2022, commencing p 3 and p 8 respectively.
As necessary, rulings were made during the hearing concerning the admission of some of this material, reasons being provided at that time. For present purposes it is unnecessary to set out those rulings.

Grounds of appeal and submissions

The parties filed numerous bundles of documents in support of their respective positions some of which were marked for identification. In the Appellants' Bundle (AB) filed 22 July 2022, under the heading "5.B Grounds of Appeal", the appellants identified numerous issues which they said arose for determination in this appeal. It is unnecessary to set out these issues in detail, simply to record that they related to: 1. whether the Tribunal correctly identified issues in the proceedings and treated both parties fairly and equally, 2. whether there was a need to determine the boundary line, 3. what rules applied under any State planning policy to the height of the fence; and 4. what work should be done and who should contribute what labour and money to the construction of any required fence.
As to questions of law, these were said to relate to whether surveying costs, including that of the "New South Wales Land Registry Services", should be shared equally and the "Discrepancy between 2 Surveyor's Findings & Peg Outs".
Various factual matters were in dispute.
The submissions can be appropriately described as a narrative concerning what occurred, the manner in which the hearing at first instance was conducted and what was said by the parties at the first instance hearing. The submissions also contain some accounting analysis of the costs which each party had incurred in connection with the fencing work and how these should be shared.
Consistent with the approach of the Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12] and because of the manner in which the appellants presented their claims, at the commencement of the hearing on 9 August 2022 we asked the appellants to precisely identify the issues which they wished to pursue and what orders they sought. The orders sought were: 1. That the Appeal Panel should order a new hearing because the appellants were challenging orders 3, 5, 10 and 11; 2. No fencing order should be made because the boundary had not been determined; and 3. All costs of the fencing work should be shared equally between both parties.
As to the grounds of appeal, they were identified as follows: 1. The Tribunal was in error in making orders 3, 5, 10 and 11; 2. The appellants did not in fact consent to order 10; 3. The Tribunal was in error in deciding it did not have power to make an order in connection with the costs which the appellants incurred in their application to the Registrar General (RG Application) to determine the boundary between the parties' properties under Part 14A of the Real Property Act 1900 (NSW) (RP Act). In this regard, issues included: 1. whether the decision concerning s 18 of the DP Act was correct; 2. whether, in any event, the Tribunal had power to make a cost sharing order in respect of these costs under s 14(1)(c) of the DF Act; 3. whether order 12 should be varied to provide for costs of the RG Application to be shared 50/50 between the parties. 1. In respect of order 3, which related to the costs payable by the appellants in connection with the front fence materials, the Tribunal was in error in ordering the appellants to pay $421.49. Rather, the appellants say the correct amount is $336.19, this being half the total cost of materials being $672.38 (See AB filed 22 July 2022 p 11); 2. In respect of order 5, there was a sufficient dividing fence. Therefore, no orders should have been made at all and the application should have been dismissed; 3. Save for the cost the subject of order 3, all other costs for constructing the dividing fence should have been split equally; 4. As to the order concerning the height of the fence, this should be 1.8 metres measured on the appellants' side of the fence, there being no dispute regarding use of Colourbond material of the type described.
In relation to whether or not there was a sufficient dividing fence (ground (5) as set out above), the appellants said that parts of the fence had been removed by the respondents without authority or agreement which was the cause of the finding that there was an insufficient dividing fence.
In reply, the respondents said the orders were correctly made and that the appellants had consented to those orders recorded as consent orders. Reliance was placed on their affidavits about what happened at various hearings being MFI 4 and MFI 5.
In connection with the survey information, the respondents said that there was no discrepancy between the original two surveys and that the Tribunal was correct in its decision concerning whether it had power to make an order to share costs in connection with the boundary determination under Part 14A of the RP Act and who should pay those costs.
As to the costs of $421.49, this amount was said to be correct, the appellants' calculation incorrectly excluding delivery costs for the materials.

Consideration

There is a right of appeal on a question of law, otherwise leave to appeal is required: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Leave to appeal may only be granted where a party may have suffered a substantial miscarriage of justice because the decision under appeal was not fair and equitable, against the weight of evidence, or there was significant new evidence not reasonably available: Sch 4 cl 12(1) NCAT Act. Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the grant of leave.
There are two primary matters which should be dealt with first. They concern the appellants' contention they did not consent to the orders made and that the Tribunal was in error concerning its power to make an order in connection with the costs of the RP Application. We shall deal with those matters under the following headings: 1. Did the appellants consent to order 10? 2. If no to the preceding question, what orders should now be made? 3. Was there a sufficient dividing fence and therefore no jurisdiction to make an order to do fencing work? 4. Was the Tribunal correct in determining it had no power to make an order in connection with the costs of the boundary determination by the Registrar General? 5. If no to the preceding question, should order 12 made 23 May 2022 be varied and, if so, to what?

Did the appellants consent to order 10?

In Aboriginal Housing Office v Harrison [2021] NSWCATAP 97, the Appeal Panel considered the circumstances in which a consent order might be set aside. At [31] the Appeal Panel said: 31. In relation to a consent order and its liability to be set aside, the High Court said in Harvey at 243-4: The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf. Halsbury's Laws of England, vol. 26, 2nd ed., pp. 84, 85); but there is a dictum of Lindley L.J. which is distinct enough: ". . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if that agreement cannot be invalidated the consent order is good": Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895) 2 Ch 273, at p 280 (at p244).
In the present case, the appellants say they did not in fact consent to order 10 which they are challenging. That is, there was in fact no agreement. They do not assert that there was an agreement which should be found void or voidable by reason of mistake, undue influence or otherwise.
The question in this appeal is whether consent was given by the appellants. This is a question of fact. In the absence of a transcript, this question is to be resolved by reference to the reasons of the Tribunal, being the Tribunal's record of what happened at the May hearing, and the evidence from the parties about what was said at the May hearing.
Of the consent orders the Tribunal said at WR [1]-][4]: 1. On 23 May 2022 orders 1 to 11 were made by consent of all parties. Each of the orders were drafted in the presence of the parties who participated in the hearing by telephone and then carefully read back to the parties on more than one occasion to ensure the consent of the parties. All parties appeared on 23 May 2022. That is, both applicants and both respondents appeared, and the Tribunal ensured that each of the two applicants and each of the two respondents consented to the orders. All four parties expressly confirmed their consent to each of orders 1 to 11 made 23 May 2022. As the orders were made by the consent of the parties and not by a decision of the Tribunal, reasons for consent orders 1 to 11 were not given by the Tribunal. 2. To the extent the respondents raised the issue of construction materials placed near the boundary of their property by the applicants the Tribunal was informed on 23 May 2022 that: (a) The applicants had placed some kind of temporary hoarding on their property whilst there is currently no fence. (b) The hoarding is wholly located within the applicants' boundary. (c) The hoarding is temporary, until the fencing dispute is resolved, and a new fence is erected. (d) The applicants will remove the hoarding once the fencing work begins. 3. The parties were informed prior to confirming their agreement to, and finalising, consent orders that the Tribunal does not have jurisdiction to direct the applicants to remove hoarding located solely on the applicants' property and that the respondents should obtain independent advice and if applicable, approach their local council regarding the issue, if they consider it a breach of any relevant building, construction, planning or other local council law or regulation after obtaining independent advice. The following was also explained to the parties: (a) Pursuant to the consent orders made 23 May 2022 the applicants agree to pay all costs of the front fence save for a fixed sum contribution by the respondents representing 50% of anticipated costs of front fence materials only. (b) Pursuant to the consent orders made 23 May 2022 the applicants agree to pay 100% of the costs of the rear fence. (c) The applicants also agree in the consent orders to be the party responsible for constructing, or causing the construction of, both fences. (d) Accordingly, if the hoarding interferes in any way with construction of the fence it follows from the consent orders that the applicants must remove the hoarding at their own cost to facilitate construction of the fence and in turn, compliance by the applicants with the consent orders. Accordingly, even if the Tribunal has jurisdiction there are no other orders the Tribunal could usefully make to address the respondents' complaint about the presence of hoarding on the applicants' property. 4. In so far as the respondents raised at the hearing on 23 May 2022 a complaint that the applicants purchased fencing materials before reaching agreement with the respondents and removed the front yard fence without the respondents' prior consent it was pointed out to the parties prior to confirming their agreement to, and finalising, consent orders that this is also dealt with in the consent orders, as follows: (a) The consent orders do not require the respondents to contribute to the costs of demolition/removal of the front fence. (b) The parties now agree in the consent orders as to the type of materials that will be used in the fence construction and the amount of the respondents' contribution, which is limited to a contribution towards the cost of materials in respect of the front fence only. (c) Accordingly, the applicant's complaint about lack of prior consent is effectively dealt with in the consent orders. There is no loss to the respondents by reason of the applicants' conduct and no further orders the Tribunal could usefully make to address the lack of prior consent of the respondents.
The appellants rely on the Uddin affidavit as to what was said at the May hearing. This affidavit contains both evidence of what was said at the hearing and also statements by way of narrative or submissions about the conduct of the hearing.
The appellants contend that what Mr Uddin said to the Tribunal (recorded at para 151 of the Uddin affidavit) did not constitute their agreement to order 10. Alternatively, it was an agreement subject to a condition that the issue of who pays the costs of the RG application be resolved.
At paras 144- 157 of his affidavit (AB filed 22 July 2022 p 35), Mr Uddin records what he said happened at the hearing as follows: 144 About 40 mins passed at the hearing, the tribunal member Ms Ruschen said words to the effect of "This is what I am typing the order, seems to be the agreement. That is..." 145 The tribunal member read out what she typed only once to us. That was the only one time she read from Order 1 to 10. When she read out the order one by one, she certainly did not start the sentence by the word "by consent" from each order 1 till 10. 146 The tribunal member did not explain to the parties about the procedure and expectation of the hearing. She did not explain the nature of consent orders that she intended to make and did not try to make everyone attended the hearing to fully understand the rationale of consent order. 147 I noticed the tribunal member Ms Ruschen typed out some orders, she read out once the orders from 1 to 10. I noticed they are orders but not consent orders. 148 The written orders we received are not exactly the same as she read out to us. As the word "by consent" was omitted on each order that she read out. Whereas the written order starts the sentence with "by consent" from order 1 to 11. 149 The tribunal member Ms Ruschen asked: "Mr Truong, yes or no?" 150 Mr Truong said: "Yes." 151 I said: "I agree but I have here about the cost of Land & Registry.....(Not finished the conversation & was cut in by the tribunal member) 152 The tribunal member Ms Ruschen said: "Okay." 153 I continued: "about the cost..." 154 The tribunal member Ms Ruschen said: "Right, you told me about your surveyor cost, correct? And your application..." 155 I answered: "Yes." 156 The tribunal member Ms Ruschen read out section 18 Dividing Fence Act. She said: "The owner receiving the notice, that is Mr Truong, then Mr Truong is entitled to recover from the owner given the notice. No provision to go the other way round." 157 The tribunal member added words to the effect: "I got no idea Mr Uddin, whether you are entitled to get any of these costs".
The Uddin affidavit then refers to discussions at the May hearing concerning costs and the RP Application.
In response, the respondents rely on MFI 4 and 5 (Respondents Bundle (RB filed 30 August 2022). As with the appellants, these statements are a mixture of evidence about what was said at the May hearing and a narrative or submissions about what occurred. Relevantly, the evidence of Mr Truong in MFI 4 was as follows: 9 On 23rd May 2022 my wife Sonia and I attended an NCAT hearing as applicants for File No. COM21/52234 by telephone. Mr Uddin and Ms Yiu also attended as the respondents. The tribunal was heard by Member K.Ruschen. 10 Tribunal Member Ruschen asked using words to the effect of "Do all parties agree to be bound by the boundary determination by the Registrar General?" 11 I responded with "yes". 12 Mr Uddin responded by talking about costs proposals which can be seen in paragraph 11 of Mr Uddin's Affidavit. 13 Tribunal Member Ruschen stopped Mr Uddin and said words to the effect of "Mr. Uddin, please answer my question, Yes or No do you agree to be bound by the boundary determination by the Registrar General?" 14 I recall Mr. Uddin agreeing to be bound by the boundary determination by the Registrar General. 15 Tribunal Member Ruschen then proceeded to talk about the fence height and materials and asked the respondents if he would agree to raising the height of the fence using timber sleepers below 1.8m Colourbond fence. 16 Tribunal Member Ruschen used words to the effect of "Do you agree to the back yard fence works noting that if the council were to raise any issue that the Truong's undertake any changes that may be required" 17 Mr Uddin again attempted to answer the question with conditions. Tribunal Member Ruschen again stopped Mr Uddin and used words to the effect of "Mr Uddin please answer yes or no to the question, do you agree with the back yard fence work given that the Truong's have said that they will be responsible to fix any issues that may be raised by the council for which I suggest the chances are remote." 18 I recall Mr. Uddin agreeing to this. 19 I also confirmed that we the Truong's would pay for 100% of the costs for the construction the back yard fence as was stated in our initial Fencing Notice. 20 Tribunal Member Ruschen then proceeded to speak about the costs of the front yard portion of the fence where she asked "Mr Uddin, do you agree to pay $421.49 towards the materials for the front fence. 21 Mr Uddin again raised the surveyor's costs which is again evidenced by Paragraph 136 of Mr Uddin's affidavit. 22 Tribunal Member Ruschen stopped Mr Uddin before using words to the effect of "Mr Uddin, I am talking about the materials, forget the survey costs I will get to them later." … 24 Tribunal Member Ruschen again asked Mr Uddin, "Do you agree to pay $421 .49 towards the cost of materials only." 25 I recall Mr Uddin agreeing to the cost of $421 .49 for materials. 26 Tribunal Member Ruschen then asked with words to the effect "when should the payment for these materials be paid." 27 I responded with "payment can be made once the work is complete" 28 Tribunal Member Ruschen then said words to the effect of "The following orders are being made by consent" before reading out Orders 1 through to 10. 29 Tribunal Member Ruschen then asked whether the parties agree with these orders. 30 I said "Yes, I agree". 31 I recall Mr. Uddin also agreeing but then bringing up the surveyor's costs again. This is evident in paragraph 151 of Mr. Uddin's Affidavit. 32 I recall Tribunal Member Ruschen then addressing Mr. Uddin's and Ms Yiu's claim for survey costs. 33 Tribunal Member Ruschen said words to the effect that "As Mr Uddin and Ms Yiu served the Notice of Intention to determine the boundary, that the application of Section 18 of the Dividing Fences Act only allows for the party receiving the Notice to recover costs." 34 Tribunal Member Ruschen went on further to say words to the effect of "As both parties have engaged their own registered surveyors, it is fair and reasonable that the costs for these surveyors are considered similar and thus cancel each other out" 35 Tribunal member Ruschen also explained using words to the effect "the costs for the Survey by the Registrar General and incidentals associated fall under Section 13SF the Real Property Act and that it did not fall under the jurisdiction of the NCAT" 36 Tribunal Member Ruschen then asked whether there was anything else either party (sic). 37 It was at this point where I said "Yes, could we please request an order be made for a period of 14 days written Notice to be provided to Mr Uddin and Ms Yiu to inform them about date of commencement and duration of the works." 38 Tribunal Member Ruschen then re-read all the orders back before closing the hearing.
The respondents also rely on notations made by the Tribunal at an earlier Group list/conciliation hearing on 24 January 2022 (before the same Member), when the Tribunal made the following notations: 1A. The Tribunal notes the following is agreed/disagreed between the parties in relation to the front fence: - the parties agree a new fence is to be constructed in accordance with the front yard fence works specified in the fencing notice regarding materials, height, length etc. - the parties disagree on the amount to be contributed by the respondent. - the parties disagree on the location of the boundary and therefore where the fence is to be erected. 1B. The Tribunal notes the following is agreed/disagreed between the parties in relation to the back yard fence: - the parties agree a new fence is to be constructed in accordance with the back yard fence works specified in the fencing notice regarding materials, height, length etc. - the applicant has offered to bear 100% of the costs of the back yard fence on the basis the sleepers are replaced with concrete. - the respondent does not agree to concrete instead of sleepers even though the respondent has not been asked to contribute to the costs of the back fence. - the parties disagree on the location of the boundary and therefore disagree on where the new fence is to be located. The outstanding disputes noted above will be determined by the Tribunal on the next occasion.
We understand this material is put forward by way of background to the May hearing.
At this point we should also note for completeness the Tribunal, differently constituted, made the following orders on 29 March 2022: 1. By Determination of member, on 29 March 2022 the hearing was adjourned to a date to be fixed by the Registrar, on a date not before 1 May 2022. The respondent is awaiting a formal boundary determination from the R-G so that the issues before the tribunal may be determined. Overview The parties, in principle, propose to accept the findings of the R-G for the purposes of erecting the new fence on the boundary line, as determined. The parties, in principle, agree that the fence will be in a Colourbond Woodland Grey at variable heights from 1.2 M to 1.8 M [subject to formal advice from council as to current fencing heights in the LGA]. Background The applicants have a "new build" and have poured concrete to the fencing line to take into account the variation in ground level. The respondents submits that they would like some timber elements to improve the aesthetics of the concrete as viewed from the respondents' property. The parties are to address the following matters at the further listing post the boundary determination, by providing a statement of fencing work proposed no later than 7 days prior to the next listing date, to include: Front yard fence Length of fence Height of fence Back yard fence Length of fence Height of fence PROPOSED COST OF CONTRIBUTION TO MATERIAL AND LABOUR
As stated above, the issue is whether the applicants consented to order 10. There is no dispute that the respondents consented to the orders.
The appellants challenge the Tribunal's finding that consent was in fact given. If there was no consent, there could be no agreement and therefore the orders should be set aside. Whether there was consent is to be objectively determined.
We are satisfied that, because of the absence of a transcript and the different positions of the parties, the appellants may have suffered a substantial miscarriage of justice and that leave should be granted on this aspect of the appeal.
It is clear from the Uddin affidavit that the Tribunal was dealing with the issues sequentially and was, consistent with what had occurred at earlier hearings in defining the issues, seeking to identify what orders could be made by consent and what matters remained in contest and required a ruling by the Tribunal.
The appellants say that what was said at para 151 of the Uddin affidavit was not consent to the proposed orders or was conditional consent.
We do not accept this submission. Objectively, the words "I agree" can only be an acceptance of the orders read out by the Tribunal.
The appellants say the orders were only read out once. Even if this is correct, consent was still given.
Also, we do not accept consent was conditional. A consideration of the conversation at para 151 in the context of all the evidence concerning what was said at the May hearing and what orders were made satisfies us that: 1. the appellants consented to order 10; 2. the appellants contended that the respondents were liable to pay some of the costs of the RP Application, submitting that the Tribunal had power to deal with these costs as part of any order to do fencing work. The parties agreed that the boundary would be determined by the Registrar General. The issue of who pays the costs of the RP application was the outstanding issue to be resolved by the Tribunal; and 3. the Tribunal determined the dispute concerning the costs of the RP application against the appellants based on its interpretation of s 18 of the DF Act.
Consequently order 11 (which relates to the boundary line being determined by the Registrar General under the RP Application) was made by consent and order 12 was made in consequence of the Tribunal determining it did not have power to order the respondent to pay some of the costs of the RP Application.
Significantly, on the question of consent being conditional, at no time at the May hearing after the discussion at para 151 of the Uddin affidavit did the appellants suggest they did not consent or that there were outstanding issues to be resolved in relation to the subject matter of order 10. The absence of such evidence strongly supports a conclusion that those matters, the subject of order 10, had been resolved by consent at an earlier point in the hearing.
For these reasons, the challenge to the consent orders fails.
One final matter to deal with is that the appellants asserted that the consent of the second respondent, Ms Yui, was not requested or obtained by the Tribunal prior to making the consent orders. The effect of this submission was that Mr Uddin, as co-respondent and co-owner of the property in question, lacked authority to speak on behalf of Ms Yui.
We reject this contention.
As the Uddin affidavit records, Ms Yui actively participated in the proceedings and did not at any point suggest that she did not consent or that she disagreed with what Mr Uddin said to the Tribunal. While it may have been desirable for the Tribunal to insist on one person being appointed to speak on behalf of the multiple respondents with the same interest (to avoid difficulties often associated with permitting multiple people to speak), the absence of such an approach does not, of itself, lead to the conclusion that a particular spokesperson does not have authority to bind both parties.

If no to the preceding question, what orders should now be made?

This issue does not arise.
Further, as order 3 (which required the appellants to pay the respondent $421.49 by way of contribution to the front fence) was made by consent, the challenge to this order also fails.

Was there a sufficient dividing fence and therefore no jurisdiction to make an order to do fencing work?

The Tribunal does not have jurisdiction to make an order under the DF Act unless the existing fence is found to be insufficient: see Alwiah v Watts & Anor [2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409. The meaning of sufficient was considered in Purcell v Chadwick [2018] NSWCATAP 250.
Parties to proceedings cannot confer jurisdiction on the Tribunal by consent. However, where jurisdiction is dependent upon the existence of a particular fact, parties may agree relevant facts. In this regard, in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, McHugh J said at [79]: In my view - in constitutional and public law cases as well as private law cases - parties can concede issues even though the issue is a legal issue. The only power with which this Court is invested is judicial power together with such power as is necessary or incidental to the exercise of judicial power in a particular case. The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia. Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues.
In the present case, the parties consented to the making of an order to do fencing work. This is properly seen as acceptance of the fact that the existing dividing fence was not sufficient so as to enliven the Tribunal's jurisdiction, whatever the reason and who caused it to be insufficient. While the transcript suggests there was initially a dispute about the need for the rear fence to be replaced (see Uddin affidavit at para 105-6), there was subsequently an agreement that a fencing order should be made on terms that the respondents pay the whole of the costs as provided by consent order 8, with the fence to be of a type, dimensions and location as provided in consent orders 5-7. As to the front fence, the parties agreed that at least part of the fence had been removed - the appellants contending that the respondents had done so inappropriately and without the appellants' permission - hence there was in fact no sufficient dividing fence in this location so as to enliven the Tribunal's jurisdiction. The appellants' consent to order 4 (that the respondents primarily bear the costs of this part of the fence) was not in itself the subject of challenge and the challenge to consent to order 3 concerning the appellants' contribution has failed as a matter of fact.
In these circumstances, the challenge to order 5 fails.

Was the Tribunal correct in determining it had no power to make an order in connection with the costs of the boundary determination by the Registrar General?

The Tribunal considered the issue of who should pay the costs of the RP Application in the context of s 18 of the DF Act. This section provides: 18 Procedure for defining boundary line (1) An adjoining owner may give notice in writing to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work. (2) The owner receiving the notice may, within 7 days after service of the notice: (a) define the position of the common boundary line by pegs if satisfied as to its position, or (b) employ a registered surveyor to define the common boundary line, and in either case is to inform the other adjoining owner in writing of what has been done. (3) The owner giving the notice may have the common boundary line defined by a registered surveyor if the owner to whom the notice is given has, within 1 month after service of the notice, defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor. (4) If the common boundary line as defined by a registered surveyor is ascertained to be in the same position defined by pegs placed there by the owner receiving the notice, that owner is entitled to recover from the owner giving the notice any costs incurred. (5) In any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners. (6) In this section, registered surveyor means a person registered under the Surveying and Spatial Information Act 2002 as a surveyor.
The Tribunal rejected the appellants' claim. At WD [10]-[14] the Tribunal said: 10. The respondents claim the costs of a registered surveyor retained through C&A Surveyors for a survey and marking of boundaries. Prima facie these costs fall under section 18. However, section 18(4) only entitles the respondents to recover the costs of a registered surveyor if the respondents were the owners who received a notice under section 18. That is, costs are only recoverable by the owner "receiving" the notice from the owner "giving" the notice and only if the common boundary defined by a registered surveyor is ascertained to be in the same position defined by pegs placed there by the owner receiving the notice. In this case: (a) The respondents are not the owners receiving the notice for the purpose of costs under section 18(4). They are the owner giving the notice. Accordingly, the first limb of section 18(4) that the respondents be the party receiving the notice is not satisfied. (b) Further, it is understood from the parties that the applicants also retained a registered surveyor and the parties' respective surveyors did not ascertain the boundary to be in the same position, hence the application under the Real Property Act. Accordingly, the second limb of section 18(4) that the boundary is ascertained to be in the same position defined by pegs placed by the owner receiving the notice is also not satisfied. This is a matter yet to be determined by the Registrar-General. 11. As the requirements of section 18(4) are not satisfied the respondents are not entitled to recover all or any part of the costs of C&A Surveyors from the applicants under section 18(4). 12. Pursuant to section 18(5), in any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners. In this case: (a) A registered surveyor was not "employed" by both parties. Each party employed their own registered surveyor. (b) The boundary remains in dispute and is now the subject of an application under the Real Property Act. (c) Both parties have incurred the costs of their own registered surveyor. The costs incurred by each party for their respective registered surveyors are reasonably similar. (d) The applicants do not accept the boundary, as defined by the respondents' surveyor and the respondents do not accept the boundary as defined by the applicants' surveyor. (e) The respondents consider the applicants' position unreasonable as they state "they [the applicants] could just accept our surveyor and end the dispute". However, it can equally be said that the respondents could just accept the applicants' surveyor to end the dispute. 13. The wording of section 18(5) infers that "in any other case" where a registered surveyor is "employed" there is only one registered surveyor involved in defining the boundary who has been employed by one party or jointly by both, in which case the costs are shared equally. However, as there is more than one surveyor involved in this case, with each party employing their own surveyor, section 18(5) does not apply. In any event, even if section 18(5) had some application to the circumstances of the matter at hand, both parties have incurred similar costs of a registered surveyor and have therefore already effectively paid expenses in reasonably "equal shares". 14. For the above reasons the respondents' application for costs under section 18(4) and/or section 18(5) of the Dividing Fences Act is dismissed.
We agree that s 18 of the DF Act has no application in the present circumstances for the reasons expressed by the Tribunal.
However, the Tribunal failed to consider its power to make an order concerning the costs of the RP Application under s 14(1)(c) of the DF Act. That subsection permits the Tribunal to make an order as to "the manner in which contributions for the fencing work are to be apportioned or reapportionment or the amount that each adjoining owner is liable to pay for that work".
Section 3 of the DF Act provides: fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.
The work required under the RP Application was "surveying" for the purpose of the construction, replacement or repair of a dividing fence. Consequently, it was fencing work the cost of which could be subject to an order made under s 14(1)(c) of the DF Act.
As a result, the Tribunal was in error in determining it did not have power to make an order requiring the respondents to contribute to the cost of the RP Application.

If no to the preceding question, should order 12 made 23 May 2022 be varied and, if so, to what?

In our view, order 12 made 23 May 2022 should be set aside and an order made requiring the respondent to reimburse the appellants 50% of the costs of the RP Application.
Our reasons are as follows: 1. The parties agreed to a settlement to resolve the differences in these proceedings. 2. A review of the transcript and other documents provided by the parties in this appeal indicate that one of the issues in the proceedings was whether the boundary was properly established by one or either of the surveys provided by the parties. This issue was resolved by the parties' agreement to be bound by a determination of the Registrar General. 3. There is no reason that, in the exercise of a discretion under s 14 of the DF Act, the relevant costs ought not be shared. The fact that the respondents maintained on appeal there were no discrepancies with the original surveys is beside the point. The parties resolved the dispute as to the different surveys and where the fence was to be placed in a manner which required the boundary to be determined by the RP Application. 4. Consequently, as with most dividing fence applications, the costs of determining the boundary should be shared.
The appellants submitted that the costs they were entitled to recover should be the amounts paid to the Registrar General as required by the RG Application as well as various parking fees incurred when lodging the RG application.
In our view, the parking fees do not form part of the costs of the fencing work and we do not propose to require the respondents to contribute to these amounts.
Rather, the only cost which should be the subject of any order are the amounts paid to the Registrar General in connection with the RP Application as required by the Registrar General under the RP Act.
We will make an order requiring this payment to be made. An application can be made to the Tribunal at first instance to fix the amount so a money order can issue if the respondents fail to make the payment or there is any dispute as to the amount of the payment.

Costs

The appellants sought their costs of the proceedings, in particular the filing fee for this appeal.
Section 60 of the NCAT Act provides that each party is to pay their own costs unless the Tribunal is satisfied there are special circumstances warranting an award of costs. Special circumstances means circumstances out of the ordinary: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11].
We are not satisfied there are any special circumstances warranting an award costs. These type of disputes are common. The dispute involved disputed matters of fact. While there was a legal question concerning sharing the costs of the RP Application, this matter was relatively straightforward. Further, the appellants have had limited success in this appeal. In these circumstances, an award of costs in favour of either party would be inappropriate.
Consequently, the application for costs is dismissed.

Orders

The appellants said that if the appeal is dismissed, carrying out of any fencing work should be delayed due to their work commitments which made them unavailable to attend the site during the carrying out of the fencing work. The respondents' position is that they did not want completion of the works delayed.
In accordance with the consent orders, the respondents (Truongs) are required to carry out the fencing work. There is no reason that this work should be delayed. So far as the appellants wish to observe the progress of the work and its progress, they can do so at times when they are available.
The Appeal Panel makes the following orders: 1. Leave to appeal is granted on the question of whether the appellants consented to order 10 made 23 May 2022 and the appeal in relation to that matter is dismissed. 2. The appeal in connection with who should pay the costs of the application to the Registrar General under Part 14A of the Real Property Act 1900 (NSW) is allowed. 3. Order 12 made 23 May 2020 to is set aside and in lieu thereof the following orders are made in application COM 21/52234: 12 The applicants (Truongs) are to pay the respondents (Uddin and Yiu) fifty percent (50%) of the costs paid by the respondents to the Registrar General in respect of the application to determine the boundary made under Part 14A of the Real Property Act 1900 (NSW) referred to in order 11. 13. The parties have liberty to apply to the Tribunal at first instance to fix the amount payable under order 12 if there is a dispute. 1. Save as provided above the appeal is dismissed. 2. Each party is to pay 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: 13 October 2022

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (9)

Cited By (1)