Zhang v Stephenson [2025] NSWCATAP 221 | Case summary

We have decided that, apart from extending time for filing of the notice of appeal and varying time for compliance to construct the new fence in the primary orders, leave to appeal should be refused and the appeal dismissed. The stay of the primary orders should be confirmed to be lifted.
No leave for legal representation was granted and the parties represented themselves on the appeal. We make no order as to the costs of the appeal.

The appeal was filed on 18 December 2024, outside the permitted filing period, from a primary decision made on 1 November 2024. The primary hearing took place on 12 September and 6 December 2023, with original filing having been on 12 May 2023 (the primary proceedings).
The primary proceedings concerned a dividing fence between the properties of the appellant (the respondent in the primary proceedings) Mr Zhang and the respondent to the appeal (the applicant in the primary proceedings) Mr Stephenson in Castle Hill, a suburb in northwest Sydney, NSW. We shall refer to the parties as they appear in this appeal, namely, Mr Zhang as the appellant and Mr Stephenson as the respondent.
The primary member correctly found that the Tribunal had jurisdiction under the Dividing Fences Act 1991 (NSW) (DFA) for what was sought in the current fencing application in the primary proceedings.
The primary member went on to find that the respondent was entitled to the relief ordered. In summary, this was: the common boundary was determined to be as set out in the respondent's commissioned survey report dated 14 June 2022; the appellant was to pay $330 (half of survey cost for a later survey) on erection of the fence; the existing fence was, by 31 January 2025 or other agreed date, to be replaced by a new colourbond fence (monument colour, 25m long, 1.8m high) in accord with the quotation for $6,380 obtained by the respondent dated 24 April 2023; under DFA s 7 the parties were to contribute to the cost of the fence equally , being $3,190 each which was to be paid on erection of the fence; all other claims were dismissed; an extension of time for filing the fencing application to date of actual filing was granted under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) with r 23(3)(b) of the Civil and Administrative Tribunal Rules 2014 (NSW).
The fencing notice that led to the primary proceedings had been issued under DFA s 11 on 17 February 2023. Extension of time from 17 April 2023 (being one month after the expiry of the one-month period for agreement under DFA s 12) to date of filing of the primary application on 12 May 2023 was not opposed. The respondent had also issued a notice on 10 February 2023 to have the boundary defined under DFA s 18.
In earlier proceedings between the same parties filed 23 August 2022, the respondent's application for a dividing fence had been dismissed on 9 December 2022. The application had included removal of the retaining wall beneath the fence as well as the fence, raising site level and installing a new 1.8m high colourbond fence, monument colour, on the correct boundary. The appellant had opposed the siting of the boundary and had said that support was fencing work within the Tribunal's jurisdiction under the DFA. The Tribunal found that support was not fencing work and dismissed the application on that basis.
The primary proceedings did not seek to revisit the supporting land issue but otherwise sought the same relief including in respect of determination of the boundary and siting of the fence on or as close as practical to the correct boundary.
Between 19 January and 22 July 2022 there had been communications between parties about replacing the fence. There was initial agreement in principle about the same location as the existing fence and the raising of the respondent's land, at a time when the respondent was not aware of the encroachment of the current fence away from the boundary onto his land.
On 10 June 2022 the parties discussed a survey of the same date prepared by a registered surveyor engaged by the respondent. The survey stated that the fence encroached 30cm onto the respondent's land at one corner and 10 to 20cm along the fence. The appellant apparently challenged the surveyor's credentials. The respondent sent the appellant a copy of the deposited plan which showed an encroachment of 0.2m (20cm) at one end and lesser encroachment elsewhere.
On 21 July 2022 the respondent told the appellant "I will not be repairing the current fence. My offer is to arrange for replacement of the fence with a new fence that is correctly located on the boundary. If you would like to engage your own Registered Surveyor to confirm the true position of the boundary, you are welcome to do so, and as a gesture of goodwill I will offer to contribute towards the cost of the surveyor." The email continued with an invitation to mediate at a Community Justice Centre (CJC) if agreement could not be reached, and proceedings if the CJC mediation did not result in agreement.
On 22 July 2022 the appellant disputed the encroachment, withdrew from the agreement in principle and renewed allegations first made on 19 January 2022 that the respondent had damaged the fence with construction work, which the respondent disputed and said there was no evidence provided in support.
At [16]-[21] of the primary reasons (PR), the primary member recorded the appellant's contentions that the existing fence was a sufficient dividing fence but for the damage caused by the respondent. The primary member recorded that the appellant contended that the Tribunal in the hearing of the earlier proceedings was said to have orally confirmed that most of the fence was in good condition and did not require complete replacement. The primary member pointed to transcript not having been supplied in support and the absence of such a finding in the written reasons.
The primary member also recorded that the appellant pointed to other similarly-aged (29 years) fences in the area that did not require replacement and that the displaced fence post was because of the building waste deposited on the respondent's land near to the post. When the respondent allegedly ignored the appellant's requests to repair the fence and remove the waste, the appellant was compelled to use ropes to fasten the fence around the damaged post and adjacent trees to prevent further inclination of the fence; the fence was otherwise contended to be sound. The appellant therefore contended that it was the respondent's obligation to repair the damaged part of an otherwise sufficient dividing fence.
At PR [23]-[26], the primary member rejected the appellant's contention that the dividing fence claim was res judicata or subject to an issue estoppel and that to bring it again was vexatious. The primary member pointed to the following: the previous claim was dismissed because the proposed earthworks were not fencing works; whether there was a sufficient dividing fence was not determined in the previous proceedings; the claim about the good condition of the fence being found orally was not supported by transcript or written reasons; there were not numerous applications on matters already determined.
At PR [27] the primary member identified the issues before him as whether the current fence was sufficient as a dividing fence and if not whether it should be rebuilt on the boundary surveyed for the respondent.
Within those issues, at PR [28]-[30] the primary member reviewed the evidence and rejected the contention under DFA s 8(1) that the respondent was liable to restore the damaged fence by reason of his negligent or deliberate acts during building work. The appellant's serious allegations included: the respondent had built an unapproved retaining wall near the dividing fence and interfered with a trench, causing safety and structural issues between the two properties; the respondent applied to the council to incorporate the retaining wall into the fence; the respondent obtained an invalid survey report and fabricated evidence. The respondent denied these contentions.
The primary member rejected the appellant's contentions at PR [31]-[33]. He pointed to the absence of expert evidence that the respondent's building works included an allegedly unauthorised retaining wall and damaged the fence and to the photographs that showed an already-old and deteriorated fence.
At PR [34]-[37] the primary member pointed to the overall deterioration of the fence, even if some parts were in better condition than others, and the fact that in its present state (for which the respondent was not found to be responsible) it did not provide privacy for adjoining properties, applying the test in Purcell v Chadwick [2018] NSWCATAP 250 at [25]- [28].
At PR [38]-[39] the primary member applied the authority recited in Jiang v Cousins [2019] NSWCATAP 118 including Purcell v Chadwick at [36] that, while encroachment in itself does not necessarily make a dividing fence not sufficient, where there is no evidence that it would be impractical to place a new fence on the boundary line and the fence is found not to be a sufficient dividing fence, then it is desirable that the new fence be on the boundary.
At PR [40]-[41] the primary member followed that authority, having found that the appellant did not provide any expert evidence contesting the respondent's survey evidence or as to its being impracticable to position the replacement fence on the boundary as shown in that survey evidence. At PR [43] the cost of the survey evidence was found to be fair and equitable and associated with the replacement fence, so should be shared.
At PR [42]-[4] the primary member found that the quotation for a replacement fence provided by the respondent was not the subject of a competing quotation from the appellant and appeared to be fair and equitable.

In Jackson v Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel at [22] stated that the relevant considerations on exercise of discretion to grant an extension of time under s 41 of the NCAT Act were: the length of the delay; the reason for the delay; the claimant's prospects of success, that is, whether there was a fairly arguable case; and the extent of any prejudice suffered by the opponent. If the explanation for delay is less than satisfactory or if the opponent is substantially prejudiced, it may be appropriate to investigate if the party seeking the extension can show greater merit than a fairly arguable case.
Here the appellant shortly after delivery of the primary reasons and orders applied under s 63 of the NCAT Act for what was said to be clarification of the primary reasons and orders. That application was dismissed on 10 December 2024 as not within the scope of s 63, being in reality the type of challenges that should be the basis of grounds of appeal.
Although the notice of appeal was filed nearly three weeks late if one took the date of the primary reasons and orders, it was well within time from the refusal of the s 63 application which, if successful, would have seen time to appeal run from the date of amended reasons and orders. There was no obvious prejudice in the delayed filing, beyond the usual disadvantage of having further to litigate the matter with risk of adverse outcome. Despite our conclusions below which could inform a low view of prospects of success on appeal, on 17 January 2025 a stay of the primary orders was granted until 5pm on the date of hearing of the appeal, or date of its determination if a further stay was granted. The grant of a stay included the need to assess the appeal as having some prospects of success as did the extension of time application. We similarly extended the stay until determination of the appeal at the conclusion of the appeal hearing.
The respondent submitted that the balance of justice, despite the foregoing, was against granting an extension of time to file the appeal.
On balance we grant an extension of time to file the appeal until its date of filing. It seems to us that the foregoing considerations tip the balance of justice slightly in favour of giving the opportunity to hear the appeal on its merits

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) states, in respect of Division decisions:

(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and

(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds."

Clause 12 of Schedule 4 to the NCAT Act states:

An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
In summary, 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.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, more recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40] esp at [30]-[32], 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 where they are required;

(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.

A question of mixed fact and law, such as an alleged error in applying legal principle to the facts, is not a question of law unless the relevant facts are jurisdictional in nature or do not require the appellate tribunal to resolve disputed facts relevant to the matter in dispute, or the question of law does not depend on facts not found: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]; Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]; Orr v Cobar Management PL [2020] NSWCCA 202 at [48], [109]; Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 at [21]- [23]; Damico v Secretary, Department of Customer Service [2025] NSWCATAP 109 at [43]. However, as noted by Basten AJ in Donohoe v Albulario [2025] NSWSC 9 at [33], this general requirement for purity does not stand in the way of an Appeal Panel making necessary findings of fact about the composition of the primary tribunal or conduct of the primary hearing when the question of law concerns a denial of procedural fairness.
Taking into account an irrelevant consideration or not taking into account a relevant consideration includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd [2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179.
Adequacy of reasons will vary according to the nature of the determination and of the determining body: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 esp at [77].
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited by para 12(1) of Sch 4 to the NCAT Act. In such cases, as already set out, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:

(a) the decision of the Tribunal under appeal was not fair and equitable; or

(b) the decision of the Tribunal under appeal was against the weight of evidence; or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] and [79] that a substantial miscarriage of justice for the purposes of cl 12(1) in Sch 4 to the NCAT Act may have been suffered where:

"[76] ...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. ...

[79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]."

Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b): Pholi v Wearne [2014] NSWCATAP 78 at [32]. 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:

(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."

Turning to the specific grounds in cl 12(1)(a) and (b) of Sch 4 to the NCAT Act, in Collins the Appeal Panel said:

"[77] As to the particular grounds in cl 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 a ground upon which a jury verdict can be set aside) where 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] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]."

The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with under the ground in cl 12(1)(c) to the NCAT Act was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]:

"37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:

'In order to fall within this paragraph the appellant must be able to point to evidence which:

(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'

38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:

'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:

'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.

24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'

39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:

'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"

In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:

"An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal."

As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [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'."

Nevertheless, the appeal grounds must be reasonably discernible from the material before an Appeal Panel rather than the result of an artificial construct imposed on the material by the Panel: Damico at [45].
The notice of appeal gave no detail on the alleged defects in the primary decision. The narrative in the "Statement of Appeal" filed 27 February 2025 stated the grounds as follows (with some grouping of overlapping items and removal of the high degree of repetition in the rhetoric):

(1) Error of law: The "critical easement fact" that re-location of the fence straddled a registered "easement to drain water 2.5m wide" in DP 829019, prohibited "construction" within the easement and prevented alteration to the fence line was said to have been completely overlooked by the primary member. The primary member was thereby said to have disregarded statutory protections and restrictions under s 88 (it seems of the Conveyancing Act 1919 (NSW) although s 88 of the Real Property Act 1900 (NSW), that was repealed in 1970, is cited at one point) "which prohibited interference with our land" and "prohibits any changes to the current fence line". The primary member was also said to have disregarded council regulations preventing the relocation of the current fence line onto easement land and to have further disregarded the exposure of the appellant's property to material risk contrary to DFA s 26(b) and s 177 of the Conveyancing Act. The material risk was said to be that the location of the fence on the boundary jeopardised land support and risked destabilisation of the appellant's property.

(2) Error of law: The "critical easement fact" rendered the boundary an impractical fence line contrary to DFA s 11(2)(a).

(3) Error of law: The survey report relied upon by the primary member was an irrelevant consideration because it was issued for a land division between the respondent and a neighbour and "contained no relevant survey indications for this dispute"; DFA s 14 required accurate and reliable information for fence orders and the survey "omitted critical details relevant to this case - such as easements and existing structures"; there was consequently no basis for the appellant to be required to share the cost of the survey; the cost ordered to be shared was not the cost of this survey.

(4) Error of law: Failure properly to apply DFA s 4 by not considering all relevant circumstances in the quoted case law, "relying solely on the surveyed boundary"; failure to apply s 65 of the Conveyancing Act which implied that by proceeding with the purchase knowing of a damaged fence panel at the northern corner the respondent "effectively accepted the existing fence boundary"; failure to consider that the other neighbours when replacing fencing had adopted the existing and decades-long fencing line to be compatible with the existing fence in question, thereby also respecting the easement and the sloping terrain.

(5) Error of law: Dismissal of appellant's photographic evidence concerning respondent's negligent construction work and acceptance of respondent's "unproven oral denial of negligence".

(6) Error of law: Failure to consider under DFA s 7(2) that the quoted cost included an upgrade since there were included pine-treated sleepers; quotation "is inflated by at least 150% compared to the current market price".

(7) Error of law: The primary member's inadequate consideration of the appellant's evidence and legal regulations and the above errors constituted actual bias.

(8) Errors of fact: various factual findings were disputed such as in PR [12] that the soil protection structures constituted a retaining wall and there was agreement in principle to raise the respondent's land in place of them.

It appears that, on the case law governing errors of law set out earlier, some of the foregoing that are contended to be errors of law are errors of fact requiring a grant of leave to appeal. We focus below on the merits of the alleged errors to see if there is any basis for finding an error of law or granting leave if classified as an error of fact. Given that we come to the conclusion that the arguments in favour of finding error fail on the merits, there is no need further to go into the taxonomy of whether they are errors of law or of fact.
In his argument, not in his grounds of appeal, the appellant set out a litany of other complaints not dealt with in the primary decision, such as alleged harassment of the appellant by selective enforcement in respect of this but not other neighbouring fences and complaints to the council. In the absence of a transcript and relevant documentation we do not know the extent to which these were raised, if at all, before the primary member. We have not considered them on appeal.

At the end of the hearing we urged the parties to attempt to agree the location of a replacement fence and cost at least (to shorten consideration time) and if possible other matters since both appeared to have some dissatisfaction with aspects of the primary orders. That appears not to have occurred.
The parties were at odds as to whether some of the documents advanced by the appellant on the appeal were before the primary member. We refuse leave to rely upon those where there was no dispute that they were not before the primary member. They clearly dealt with matters reasonably available prior to the primary hearing. In respect of others in dispute, such as emails between the parties in mid-2022, we have taken them into account on the basis that the respondent effectively did not oppose that course because they supported the respondent's contention.
The primary alleged error, which would be an error of law if made out, is an alleged failure to consider alleged restrictions in the registered easement and associated council regulation and statutory provisions preventing changes to the current fence line since that would interfere with the easement. The deviations of the existing fence line from the boundary were said to respect these restrictions.
The appellant's submissions said that at the primary hearing he had attempted to lodge a survey report which indicated the easement with precise measurements, along with photographic evidence that adjacent neighbours had replaced their fences at the existing location "to comply with easement regulations", but the primary member "refused to accept them citing a missed deadline".
This meant that part of the evidence relied upon by the appellant in respect of the easement issue was not before the primary member and the real ground of appeal, requiring leave, was the procedural ruling to exclude it by reason of its lateness. There was no ground of appeal to such effect. There was no transcript of the primary hearing to support it.
In the documents given to us by both the appellant and the respondent appeared a copy of DP 829019 and the terms of the relevant easement. They showed that the easement was on the appellant's land and had as its southern boundary the lot boundary itself so that a fence on that lot boundary would also be on the easement boundary. The terms of the easement in evidence contained no reference to a restriction of any type of structure on the easement or its boundary.
Further, the Council response of 26 July 2022 in the appellant's documents before us indicated that "the boundary fencing must be on the lot boundary ... as the drainage easement must be within your property".
The 2022 survey that was before the primary member did not show the relevant easement because ifs purpose was to set out the boundaries of an adjacent lot being the respondent's lot. That purpose did however include setting out the line of the relevant boundary that bordered the easement. It was consistent with the easement being wholly within the appellant's lot.
In addition to the easement being said to be omitted from the challenged survey, the appellant said that the survey "lacked critical details, including" the slope and existing retaining structures along the boundary of the appellant's property adjacent to the dividing fence and the position of the current dividing fence: "Unstable ground conditions: The boundary runs along elevated, sloped land, with my property on higher ground and [the respondent's] on lower ground. Constructing a fence at this location would place it atop the edge of my stone soil retaining wall and the metal soil protective sheets, without proper support, increasing the risk of erosion, structural instability, and collapse".
The difficulty faced by the appellant was, as the primary member pointed out in a related context, the absence of any appropriate evidence, primarily expert evidence, to establish the alleged jeopardy to the works on his land and to his right of support if the fence was re-aligned along the actual boundary. It was the appellant's evidential onus, to challenge the position described above in the case law about placing the fence on the boundary, that the boundary location was impractical or otherwise inappropriate.
The further difficulty was that it was not (in the absence of a transcript) clear that some matters raised before us, such as the alleged requirement under the Environmental Planning and Assessment Act 1979 (NSW) for an engineering report or government approval for work affecting ground stability, were raised before the primary member. If they were not raised, then it is quite possible that other evidence could possibly have been called by the respondent in respect of them: Coulton v Holcombe (1986) 162 CLR 1, [1986] HCA 33 at [7]- [9]; Jakin Constructions PL v Shrimpton [2024] NSWCATAP 39 at [49]- [50]. In those circumstances, it is inappropriate to allow them to be raised on appeal.
An "as is" purchase clause in the purchase contract between the respondent and the seller to the respondent does not affect the respondent's statutory rights under the DFA against neighbours.
The sleepers that formed part of the quoted replacement fence were clear on the quotation. There was no expert or other objective evidence that they constituted an upgrade to the existing fence so as to attract DFA s 7(2).
Some of the alleged factual errors were in stating background facts not directly relevant to the primary member's findings on which the primary decision was based. Even if the findings were against the weight of evidence or otherwise not fair and equitable, which we doubt, they did not raise the possibility of a substantially different outcome and were not of sufficient significance to support a grant of leave to appeal.
Thus, at PR [13] the primary member did not record that the appellant agreed to engage the surveyor; rather, he recorded that "the [appellant] dismissed the surveyor's report as he had not provided his credentials".
Although the survey report dated 10 June 2022 was prepared for another purpose than erection of a dividing fence on the express statement in the survey of the surveyor (which may be a protection for the surveyor in respect of other uses of the survey), the statement said that the purpose of its preparation was "setting out the boundaries of the lot shown on that drawing" which was the appellant's lot and did include the boundary in this fencing dispute.
Further, the survey dated 29 March 2023 obtained by the respondent from another surveyor that was also in evidence was substantively consistent with the encroachment in the earlier survey.
The respondent's absence of knowledge until the 10 June 2022 survey that the fence was not on the boundary between the parties' lots is borne out by a further document put before us by the appellant, being the "Agreement for fencing work" dated 29 May 2022 prepared and signed by the respondent but not by the appellant. Clause 1 of that draft agreement, headed "Fencing location", stated that "The fencing work is to be carried out on the common boundary line between the properties". This informs the respondent's email to the appellant of 1 June 2022 which among other matters stated "Yes my intention is to place the new fence in exactly the same location as the old fence".
The appellant appears to have one common boundary fence with another lot apart from the boundary with the respondent's lot. That other common boundary was on the south-eastern side of his lot. The boundary fence on that adjoining lot necessarily crosses the stormwater drainage easement and forms a structure over the easement (in contradiction of the appellant's arguments about structures on the easement). The appellant's other two frontages appear from the deposited plan to be to streets. Any misalignment of that south-eastern fence with adjacent fences does not of itself render it impractical to build the fence presently in dispute on the boundary, which would move it slightly northward, off the respondent's land and further upward and into any existing adjoining fence rather than leaving a gap.
We see nothing in the evidence that was said to be contrary to the primary member's findings on the state of the fence that supports a conclusion that the findings were against the weight of evidence.
The inability to obtain transcript of the earlier hearing did not affect the fact that what the appellant contended the previous member had found was not in the previous member's written reasons. Indeed, at paras 5 and 6 of those reasons the member assumed, for the purpose of the decision, that the respondent was correct in his contentions that the existing fence was not a sufficient dividing fence in that it was dilapidated and not on the common boundary.
There were no competing fence quotations before the primary member. We have not had regard to quotations obtained by the appellant since the primary hearing as they could reasonably have been obtained for that hearing. The lower cost in the draft fencing agreement in mid-2022 does not, without evidence of market conditions, make the respondent's quotation a year later unreasonable.
The primary member mistakenly ascribed the $660 survey invoice to the earlier (June 2022) rather than the later (March 2023) survey but his reasoning for sharing the invoice cost at PR [43] was equally applicable to both surveys. The later survey was clearly the shared cost claimed by the respondent in his emails of 16 and 28 March 2023 that were in evidence before the primary member. The later survey was obtained in pursuance of the respondent's boundary line definition notice of 10 February 2023 under DFA s 18(1). Contrary to the appellant's contention, s 18(1) did not require there to be agreed fencing work or a current fencing notice. The provision referred to an intended survey "if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work". The definition of "fencing work" in s 3 referred to the physical acts related to fence construction.
There was no evidence that the appellant had pegged the boundary which accorded with the survey outcome under s 18(4) or obtained a survey. Accordingly, s 18(5) provided for payment in equal shares by the adjoining owners for the reasonable expenses of obtaining the survey that the respondent had obtained. There was no evidence that the survey cost was unreasonable.
For the foregoing reasons leave to appeal should be refused and the appeal dismissed despite the grant of extension of time to file the appeal, except for extending the time for the fencing work. In that respect, the respondent sought six months for the named contractor who quoted to undertake the works given difficulties in obtaining trades. The appellant sought to maintain the three months allowed for in the primary orders, which included the Christmas period at the time of the primary orders. The respondent accepted that the work would take two days once a date was organised.
We consider that there is insufficient basis in the material before us to vary the three month period as to duration, only as to its date range. Consistent with the Tribunal's power to control its procedure in s 38(1) of the NCAT Act, we grant leave to parties to seek by email application to the Tribunal's Consumer and Commercial Division Sydney registry an extension of time for compliance in primary order (3), supported by appropriate documentation objectively to justify such an extension.
For more abundant caution we shall make an order expressly lifting the stay of the primary orders.

(1) Extend the time for filing the appeal to 12 May 2025.

(2) Leave to appeal refused.

(3) Appeal dismissed except to vary the time in primary order (3) made 1 November 2024 in 2023/00395145 to three months after date of these orders.

(4) Grant leave to a party to seek, by email application to the Tribunal's Consumer and Commercial Division Sydney registry, an extension of the time for compliance in primary order (3) made 1 November 2024 in 2023/00395145 as varied by order (3) above, with such application to be supported by appropriate documentation objectively to justify such an extension and with the other party to be given an opportunity to respond.

(5) For avoidance of doubt the stay of orders 1 to 5 made on 1 November 2024 in 2023/00395145 is lifted.

(6) Make no order as to the 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.

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Planning and Assessment Act 1979

Zhang v Stephenson

At a glance

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Judgment (68 paragraphs)

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Legislation Cited (5)

Cases Cited (4)