Wang v Dimitropoulos

NCAT Appeal Panel|2023-05-03

Introduction

This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal.
The application to the Tribunal was brought by Mr Dimitropolous, who is the respondent to this appeal, against Mr Wang and Ms Ding, who are the appellants in this appeal.
The parties are adjoining neighbours and the dispute involves the dividing fences separating their properties.
For the reasons set out below, we have decided to allow the appeal and to remit the matter to the Tribunal for reconsideration.

Background

The background to this appeal is as follows: 1. On 24 May 2022 the respondent lodged an application in the Consumer and Commercial Division of the Tribunal seeking orders under the Dividing Fences Act 1991 (NSW) (the Dividing Fences Act) in relation to fencing works to the front and rear fences separating the land between the parties' respective properties (the Original Proceedings). 2. On 31 August 2022 the Original Proceedings came before the Tribunal for a final hearing. The Tribunal made the following orders (the Original Orders): 1. Applicant and respondents to share the cost of the front fence with the panels to be a different colour on each side - Woodland Grey on the applicant's side, the respondents' choice on their side - with the posts to be Woodland Grey and the tracks to be the same colour as that chosen by the respondents. 2. The respondents are to pay for the repair of the rear fence in a good and workmanlike manner, to match the existing, with the posts to be set in concrete to the specification of the manufacturer and allowed to cure for the period specified by the manufacturer and with all panels undented and erected without gaps. 1. For reasons which we will explain later in this decision, the Original Orders are unfortunately ambiguous. However, they are not the subject of this appeal. 2. In late 2022 the respondent arranged, at his own expense, for fencing work to be done to the front and rear sections of the fence. The respondent informed us at the hearing that the fencing work was completed on 6 December 2022. 3. On 20 December 2022 the respondent filed a renewal application in the Tribunal (the Renewal Proceedings) relying on cl 8 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The respondent sought a money order in the sum of $1386. He said the appellants had failed to comply with the Original Orders because they had not carried out the relevant fencing work, and had not reimbursed him $330, being half the cost of the installation of the front fence, or $1056, being the full cost of the repairs to the rear fence. 4. On 23 January 2023 the Renewal Proceedings came before the Tribunal for a group list and conciliation hearing. At the conclusion of the hearing the Tribunal made the following order: The Respondent [ie the appellants in the appeal] is to comply with the Orders made on 31 August 2022 by paying the Respondent the sum of $858 being the sum of $330 in respect to order 1 and $528 in respect to order 2 made on 31 August 2022. 1. We assume the second reference to "the Respondent" in the Notice of Order was a typographical error and that the Tribunal intended to say "the Applicant". 2. The Notice of Order recording the order made on 23 January 2023 notes that oral reasons for decision were delivered. 3. On 24 January 2023 the appellants made a request to the Tribunal for a written statement of reasons. 4. On 25 January 2023 the Tribunal issued a further Notice of Order together with a written statement of reasons (the Renewal Decision). The Notice of Order states: The Order made on 23 January 2023 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 to reflect the following corrected order: The Respondent is to comply with the orders made on 31 August 2022 by paying the Applicant the sum of $1386 made up of the sum of $330 in respect to order 1, and $1,056 in respect to order 2 made on 31 August 2022. 1. The parties were not given an opportunity to make submissions concerning whether the orders of 23 January 2023 ought to have been amended. 2. The appellants now appeal against the Renewal Decision.

Notice of Appeal

The Renewal Decision was issued to the parties on 25 January 2023. The Notice of Appeal was lodged on 21 February 2023, which is within the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules).

Grounds of Appeal

To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2).
In this case the grounds of appeal are not entirely clear from the Notice of Appeal. However, in respect of a self-represented, non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13].
Consistent with those principles we have considered the appellants' oral and written submissions as a whole, with a view to identifying the grounds of appeal. We understand the grounds of appeal to be as follows: 1. The Tribunal did not have jurisdiction to make the Renewal Decision; 2. There was a denial of procedural fairness; and 3. The Tribunal's reasons were inadequate.
All of these involve errors on a question of law for which leave to appeal is not required.
The appellants' submissions otherwise take the form of an extensive commentary which implicitly invite this Appeal Panel simply to substitute the decision preferred by the appellants for the one made below. They do not otherwise identify any error on a question of law or any basis on which leave to appeal should be granted. Moreover, many of the points raised by the appellants address their grievances regarding the Original Orders. However, as noted above, those orders are not the subject of this appeal.

Consideration

The appellants contend that the Tribunal did not have jurisdiction to make the Renewal Decision.
The Tribunal's power to renew orders is found in cl 8 of Sch 4 to the NCAT Act. Schedule 4 is the Division Schedule that applies to proceedings in the Consumer and Commercial Division of the Tribunal - see ss 16 and 17 of the NCAT Act and Sch 4.
Clause 8 provides: 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.
Accordingly, the Tribunal's jurisdiction under cl 8 only arises if: 1. An order of the Tribunal has not been complied with "within the period specified by the Tribunal"; 2. The person bringing the application is the person in whose favour the order was made; and 3. The renewal proceedings were brought within 12 months after the end of the period for compliance.
Unfortunately, in this instance the Original Orders do not specify a period for compliance. In the absence of such a specification, the Original Orders were not capable of renewal and the Tribunal's jurisdiction under cl 8 of Sch 4 was not enlivened.
Accordingly, by making the Renewal Decision purportedly pursuant to cl 8 of Sch 4 of the NCAT Act, the Tribunal erred, and for this reason we are upholding the appeal.
It is therefore not necessary to consider the other grounds of appeal.

Disposal of the appeal

Where the Appeal Panel forms the view that the Tribunal lacked jurisdiction to make the first instance orders, the ordinary course would be for the appeal to be allowed and for the first instance proceedings to be dismissed.
In this situation however, we are mindful of the fact that it may have been appropriate for the Tribunal to treat the proceedings as a fresh application for recovery of monies under the relevant provisions of the Dividing Fences Act, rather than as a renewal application under the NCAT Act. We refer to: 1. s 38(4) of the NCAT Act which requires the Tribunal "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms"; 2. the guiding principle of the Tribunal set out in s 36(1) of the NCAT which is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings", and 3. s 36(4) of the Act which requires that the "practice and procedure of the Tribunal … be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings".
Although the respondent's application was erroneously made under the renewal provisions in cl 8 of Sch 4 to the NCAT Act, we understand from the materials before us, and from the parties' submissions, that the application was in substance a claim for recovery of monies under the Dividing Fences Act. In our view it would have been consistent with the provisions referred to above for the Tribunal to treat the application in this way.
If so, the following provisions of the Dividing Fences Act would have been relevant: 13 Jurisdiction of Local Court or Civil and Administrative Tribunal (1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act. … 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. 24 Recovery of money payable (1) Any money which an adjoining owner is required or liable to pay under this Act may be recovered as a debt in a court of competent jurisdiction. (2) In any proceedings for the recovery of money, the certificate of the Local Court or the Civil and Administrative Tribunal as to the making and contents of any order under section 14 or 17 is evidence of the matters set out in the certificate. (3) The Tribunal may, on the application of an adjoining owner, make an order determining an amount that the other adjoining owner is required or liable to pay under this Act (other than an amount the subject of an order by the Local Court under this Act). (4) The amount (including any costs awarded against the other adjoining owner under section 23) may be certified by the principal registrar of the Civil and Administrative Tribunal. (5) A certificate given under subsection (4) must identify the person liable to pay the certified amount. (6) If a certificate given under subsection (4) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, the certificate operates as such a judgment.
The effect of these provisions is that the Tribunal has jurisdiction to hear and determine an application by an adjoining owner to recover the cost of fencing work carried out in circumstances where there has been non-compliance by the other adjoining order with a Tribunal order.
Specifically, an adjoining owner may apply to the Tribunal for a money order if: 1. an agreement was reached by adjoining owners or an order was made by the Tribunal; 2. an adjoining owner bound by the agreement or order has failed to perform his or her part of the agreement or to comply with the order within the "required time" (which will be three months from the making of the agreement or order in circumstances where no time for performance is specified); and 3. the other adjoining owner has carried out the fencing work as agreed on or as determined by the order.
Where these criteria are satisfied, the Tribunal will have the discretion to make a money order for the amount agreed or ordered to be paid or, if the agreement or order does not specify the amount to be paid, half the cost of the fencing work carried out: s 15(1)(b).
For reasons which will become apparent, we are not satisfied that in accordance with s 81(1)(d) of the NCAT Act, we can fairly determine these issues on the basis of the materials before the Appeal Panel. We have therefore formed the view that in accordance with s 81(1)(e) of the NCAT Act, the most appropriate course of action is to remit the matter back to the Consumer and Commercial Division for reconsideration of the respondent's application.

Matters to be considered by the Tribunal on remittal

We set out below some comments on the matters which we consider will need to be addressed by the Tribunal when the matter is remitted. These comments are provided for guidance purposes only. They are not intended to be an exhaustive overview of the issues which will be relevant in the remitted proceedings.

Overview

In our view the following issues will need to be considered by the Tribunal when the matter is remitted: 1. Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act. 2. If so, what is the proper construction of the Original Orders including: 1. whether the Original Orders require a party (and if so which party) to carry out fencing work; 2. the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence; 3. the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required; 4. whether the fencing works were required to be carried out in accordance with a particular quote or invoice; 1. When did the "required time" for compliance with the Original Orders expire? 2. Whether the appellants failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act. 3. Whether the work carried out by the respondent is the fencing work determined by the Original Orders. 4. Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover.
We have set out below some more detailed comments in relation to some of these issues.

Construction of the Original Orders

As mentioned earlier in these reasons, the Original Orders are unfortunately ambiguous. For example, order 1 requires the parties to "share the cost of the front fence" and describes the colours for each side of the fence, but does not contain any other information as to what is required to comply with the order, including who is responsible for the fencing work, the location of the fence or the scope of the fencing work required.
Similarly, order 2 requires the appellants to "pay for the repair of the rear fence" and provides some specifications relating to the repairs but does not specify who is responsible for carrying out the repairs or the scope or nature of those repairs.
In order to determine whether the appellants failed to comply with the Original Orders and whether the fencing work carried out by the respondent was the work determined by the Original Orders, it will be necessary for the Tribunal to construe the Original Orders.
As the Court said in Repatriation Commission v Nation (1995) 57 FCR 25 at [41]-[42]: [41] The rule in England is that when a judgment is clear as to its terms, not even the pleadings nor the history of the action may be utilised to construe the judgment contrary to its clear meaning (see Halsbury's Laws of England, 4th ed., Vol. 26 at 273). Where, however, the judgment or order is ambiguous, it may be permissible to resort to extrinsic material, including the reasons for judgment, to resolve the ambiguity (see Gordon v Gonda (1955) 1 All ER 762 at 765, 768). [42] A similar approach has been taken in this country. If, as in the case of "speaking" order (see, e.g., I.C.I. Australia Operations Pty. Ltd. v Trade Practices Commission [1992] FCA 474; (1992) 38 FCR 248 at 262) its true meaning is "immediately plain", the terms of the order will speak for themselves. If this is not the case, the true meaning may be ascertained according to ordinary rules of construction (see Australian Consolidated Press Ltd. v Morgan [1965] HCA 21; (1965) 112 CLR 483 per Windeyer J at 503; McNair Anderson Associates Pty. Ltd. v Hinch [1985] VicRp 30; (1985) VR 309 at 311-2; cf. Kwikspan Purlin System Pty. Ltd. v Federal Commissioner of Taxation (1986 2 ATC 4602 at 4605; Australian Energy Limited v Lennard Oil N.L. (No. 2) (1988) 2 Qd R 230 at 232; Sharpe v Goodhew, Drummond J, 11 December 1992, unreported, at 10-12; Australian Securities Commission v Skase, Drummond J, 13 January 1993, unreported, at 16-17). Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible of more than one meaning, but not admissible to contradict the language of the instrument when it has "a plain meaning" (see Codelfa Construction Pty. Ltd. v State Rail Authority of N.S.W. [1982] HCA 24; (1982) 149 CLR 337 per Mason J at 352).
In our view this is a situation where it is likely that extrinsic material will be necessary to assist in the construction of the Original Orders. Whilst there were no written reasons included with the Notice of Order, the transcript and audio recording of the hearing will likely be of assistance. The application lodged in the Tribunal and the other materials which were before the Tribunal when the matter was originally decided may also be relevant.

Required time for compliance with the Original Orders

One of the issues which is disputed by the parties is whether the appellants failed to comply with the Original Orders within the "required time". The respondent says he waited until the "required time" had expired before carrying out the fencing work. The appellants say they cannot be considered to have breached the orders, because the respondent took it upon himself to do the fencing work before the "required period" had expired.
In this regard the parties agree that, as the Original Orders do not specify a time for compliance with the orders, the "required time" is "3 months after the making of the … order": Dividing Fences Act, s 15(2). They also agree that the fencing work carried out by the respondent was completed by 6 December 2022.
What is in dispute is the date on which the Original Orders were "made" for the purposes of s 15(2).
The confusion arises from the fact that the Notice of Order setting out the Original Orders contains two different dates. The notice commences with the words "On 31 August 2022 the following orders were made". At the end of the Notice of Order, under the name of the Tribunal member who made the decision, the Notice of Order states "07/09/22".
The appellants say the Original Orders were made on 7 September 2022, which is the date on which they were issued to the parties. The respondent says the orders were made on 31 August 2022 when they were made orally during the hearing.
We expect it will be necessary to have regard to the audio recording and transcript of the hearing, as well as to the Tribunal file for the Original Proceedings, in order for the Tribunal to form a view as to the date on which the Original Orders were made.

Money

Section 15(1)(b) allows an adjoining owner to 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".
We observe that the Original Orders do not specify an amount to be paid. Order 1 says that the parties are to "share the cost" of the front fence but does not specify what that cost is. Similarly, Order 2 says the "respondents are to pay for the repair of the rear fence" but does not state the amount to be paid. Accordingly, in our view, even if the respondent is successful in the remitted proceedings, the most that he can recover from the appellants is half the cost of the fencing work carried out.

Additional issue - slip rule

Although not raised by either of the parties, it is appropriate for us to address an additional error which we have identified in the Renewal Decision.
The Renewal Decision records that the orders made on 23 January 2023 are amended pursuant to s 63 of the NCAT Act. The effect of the Renewal Decision is to amend those orders by increasing the amount payable by the appellants from $858 to $1386.
In the reasons for decision attached to the Renewal Decision the Tribunal states: The matter was heard in a busy group list and initially I accepted the evidence of the Respondent that she had lost the opportunity to rectify the fence under warranty. However after further reflect and consideration of the orders made on 31 August 2022, I note that the evidence before the Tribunal was that the Respondent had organised for the rear fence repairs previously and the Applicant supplied the Quote in the sum of $1,386 for that repair. The Tribunal after hearing all the evidence ordered that the Respondent is to pay for the rear fence repairs. I understand that to mean that the Tribunal had accepted the Applicants [sic] quote in the sum of $1386 and ordered the respondent pay that amount whilst not specifically referring to that sum. … In the circumstances I find that the orders made on 23 January 2023 do not properly reflect these findings for these reasons I have corrected the orders made on 23 January 2022 [sic] as set out above.
The parties were not given any opportunity to make submissions concerning whether the orders of 23 January 2023 ought to have been amended. The Renewal Orders were made unilaterally without the parties' involvement.
The Tribunal purported to make the Renewal Orders pursuant to powers granted to the Tribunal under s 63 of the NCAT Act. That provision, in summary, allows the President of the Tribunal or the member who presided in the proceedings to alter the text of a decision if satisfied that there "is an obvious error in the text of a notice of decision or a written statement of reasons for the decision".
Section 63 (and similar provisions concerning the rules applicable to Courts) are often referred to as the "slip rule". In Yang v Oppidan Homes Pty Ltd [2016] NSWCATAP 146, the Appeal Panel said at [83]: We are of the view that the slip rule should not be used as a vehicle for the reopening of a decision which has already been published to the parties. There may be an exception in a case where all parties consent to a reopening. In our view, the slip rule mechanism should be limited to the subject matter expressly referred to in s 63 namely for the correction of obvious errors, and should not be a vehicle for revised or fresh findings of fact.
The Appeal Panel went on to set out at [84] the relevant principles applicable to the operation of the slip rule. One such principle is that in order for the slip rule to apply, the Court (or Tribunal) must be satisfied that had the matter been drawn to its attention, it would have made the correction at once. Another principle is that the slip rule is not applicable where it involves the exercise of an independent discretion not exercised at the time in question.
Here, the amended orders increased the amount payable by the appellants. The reason given for the increase was that the Tribunal member had, following "further reflection and consideration", effectively changed his mind regarding the factual findings initially made, and regarding the construction of the Original Orders. These are substantive changes which go well beyond any power granted by s 63 of the NCAT Act.
Accordingly, the use of s 63 in this way involved a misapplication of that provision. Moreover, to the extent that the orders were changed without an opportunity for the parties to make any further submissions, there was a denial of procedural fairness. These are errors of law and would have been a basis for upholding the appeal even in the absence of the jurisdictional error discussed above.

Conclusion and Orders (including costs)

For the reasons given we are allowing the appeal, setting aside the decision made by the Tribunal in COM 22/56134, and remitting the matter to the Tribunal for reconsideration.
The appellants have asked for an order that the respondent pay their costs of the appeal (being the filing fee of $451). Rule 38A of the NCAT Rules does not apply to the appeal. Therefore, the general rule operates that parties bear their own costs of the appeal, unless there are "special circumstances": see NCAT Act, s 63. The appellants have not identified any special circumstances that would warrant the making of a costs order in their favour and therefore we are declining to make an order for costs.
For these reasons we make the following orders: 1. Appeal allowed. 2. The decision made by the Tribunal in COM 22/56134 is set aside. 3. The proceedings are remitted back to the Consumer and Commercial Division of the Tribunal for reconsideration in accordance with these reasons and otherwise according to law. 4. The parties are given leave to adduce such further evidence as the Tribunal thinks fit. 5. No order as to costs, with the intent that 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: 23 May 2023

At a glance

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Decision date

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Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (11)