Ying v Xiao [2025] NSWCATCD 126;

1. The applicant's submissions set out in the relevant history of these proceedings in a chronological order. I find that the relevant facts are:

(1) On 4 October 2023 the applicant served a fencing notice on the respondent;

(2) On 3 November 2023, the applicant filed these proceedings;

(3) The applicants claim in the proceedings was amended to seek orders for the costs of the fencing work to be shared equally between the parties;

(4) The proceedings were listed for final hearing on 22 January 2024. There was no appearance for the respondent;

(5) Senior Member Robertson, (as he was then) made final orders on 22 January 2024;

(6) On 18 March 2024 the respondent applied for, and on 10 April 2024 was successful in obtaining orders to set aside the final orders made by Senior Member Robertson;

(7) The costs of the set aside were reserved in the 10 April orders;

(8) These proceedings were listed for further procedural directions to prepare the case for a hearing after the set aside orders were made;

(9) On 15 August 2024, the respondent filed a Class 2 application in the. Land and Environment Court 'LEC'. The orders sought in the LEC including an order that the applicant pay for the cost of a replacement fence between the properties of the parties in these proceedings'

(10) Because of the LEC proceedings the hearing in these proceedings was adjourned from 4 September 2024 to at least 13 June 2025 when the LEC made a decision that in connection with the dividing fence, the parties were to have a dividing fence built and to pay the costs in equal proportion.

(11) On 17 June 2025 at the Tribunal hearing, because of the LEC 13 June 2025 orders, Tribunal orders were made in that the application was dismissed because the applicant had withdrawn the application.

1. The applicant seeks a costs order in these proceedings relying on:

(1) Section 60(3)(a) of the CAT Act, namely whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings;

(2) Section 6(3)(b) of the CAT Act, namely whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings;

(3) Section 60(3)(c) of the CAT Act, namely the relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law;

(4) Section 60(3)(d) of the CAT Act, namely the nature and complexity of the proceedings.

(5) Section 60(3)(e) of the CAT Act, namely, whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance;

(6) Section 60(3)(f) of the CAT Act; namely, whether a party has refused or failed to comply with the duty imposed by section by section 36(3) of the CAT Act;

(7) Section 60(3)(g) of the CAT Act, namely, any other matter that the Tribunal considers relevant.

1. The approach taken by the applicant to address every sub paragraph of s60(3) of the CAT Act on a fairly narrow set of facts is not particularly helpful. The parties should restrict an application such as this to the most relevant facts and the sub paragraph of s60(3) which most closely responds to or reflects those facts.

1. The respondent states that the LEC proceedings were brought under the Trees (Disputes Between Neighbours) Act 2006 and that the LEC had exclusive jurisdiction in connection with that legislation.
2. The respondent's submissions otherwise deal with the history of the proceedings, the LEC proceedings and deals with the jurisdiction of the LEC to make the orders that it did, and the orders actually made. Otherwise the respondent engages with the submissions made by the applicant in connection with s60(3)(a), (b), (c), (d), (e), and (f) of the NCAT Act.
3. The Respondent concludes that:

(a) The applicant has not established special circumstances under s60(2) of the CAT Act against the respondent;

(b) Special circumstances under section s60(2) of the CAT Act have been established against the applicant;

(c) The appropriate order is that the applicant should pay the respondents costs; and

(d) in the alternative each party should bear their own costs.

1. It is not my intention to set out every submission made by the respondent or the applicant.

1. As previously stated, the orders made by the Tribunal did not allow for Reply submissions. The applicant's Reply submissions concern the LEC jurisdiction and otherwise address the respondent's submissions. The respondent's Reply submissions state those of the applicant contain fresh evidence and responds to the material that it contends falls within that description.

1. The applicant's 1 July 2025 submissions attached the decision of the Land and Environment Court in Xiao v Yang 2025 NSWLEC 1417. At [7] of that decision Galwey AC stated:

'In certain circumstances, proceedings under the Dividing Fences Act can be transferred to the Land and Environment Court, allowing for orders for fencing work to be made in proceedings under the Trees Act beyond the section of fence damaged by a neighbouring tree: S13A of the Dividing Fences Act. At the applicant's request, the parties and NCAT proceedings are transferred to the Land and Environment Court to be determined as part of these proceedings.' (emphasis added)

1. In The Owners - Strata Plan No. 8514 v Sydney Renovation Specialists Pty Ltd (Unreported, NSWCATCD, 9 November 2020) I considered submissions regarding the payment of costs on a transfer application. Paragraph 22 of that decision is relevant. It is:

'The applicant has also referred to Kadac Proprietary Limited v Complete Health Products Pty Ltd & Ors [2015] VSC 657 in which Sifris J made an order that the costs of proceedings transferred to Queensland should be in the cause. At [12] Sifris J stated after considering a number of relevant authorities on cases where the proper jurisdiction was an important issue:

'In my opinion, in the absence of special circumstances, which would include lack of jurisdiction or a very clear case, the costs of a successful transfer application should ordinarily be costs in the cause.'

1. Unfortunately, I am critical of the applicant's solicitors for not bringing [7] of the decision in Xiao v Yang 2025 NSWLEC 1417 to my attention in its submissions of 1 July 2025. Nor did the respondent bring this important finding to my attention in [19] - [25] of her submissions.
2. In accordance with what was stated in Kadac Proprietary Limited v Complete Health Products Pty Ltd & Ors [2015] VSC 657, I find that the costs of these proceedings should be in the cause and determined by the LEC. This is consistent with Clause 6(2) of Schedule 4 of the CAT Act which states if there were a transfer from the Tribunal to the LEC:

'(1) If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are -

(a) to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and

(b) to continue before that court as if the proceedings had been instituted there.

1. These proceedings are different in that there was no application in this Tribunal to transfer the proceedings to the LEC. Nonetheless they were transferred by the LEC to be determined as part of the LEC proceedings. In my view the determination of the proceedings by the LEC, should include, inter alia, the issue of the costs in the Tribunal.
2. For that reason I will make an order that the costs in the Tribunal are to be in the cause to be determined by the New South Wales Land and Environment Court in Xiao v Yang 2025 NSWLEC 1417, File Number 2024/00301322.

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.