Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kimberley Developments Pty Ltd v Cicihour Pty Ltd [2020] NSWCATAP 213 Hearing dates: 24 September 2020 Date of orders: 19 October 2020 Decision date: 19 October 2020 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G K Burton SC, Senior Member Decision: 1. Time for filing the notice of appeal is extended to 7 July 2020 and, to the extent that further leave is required, time for filing the amended notice of appeal is extended to 28 July 2020. 2. The appeal is allowed. 3. The proceedings are remitted to the Consumer and Commercial Division for re-hearing in conjunction with any further proceedings properly brought by the appellant. 4. In respect of the costs of the appeal: (a) The parties are to file and serve written submissions in chief with any further material relevant to costs within fourteen days of the date of these orders; (b) The parties are to file and serve written submissions in reply with any further material in reply relevant to costs of the appeal within 28 days of the date of these orders; (c) If no written submissions are filed and served in accord with paragraph (4)(a) then there will be no order as to the costs of the appeal. Catchwords: Dividing Fences – adequacy of reasons and findings on jurisdictional facts and discretionary grounds – extension of time – discretionary considerations – prospects on appeal – explanation for delay – prejudice and utility of remission for further hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 Alwiah v Watts [2004] NSWSC 948 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578, [2000] FCA 1434 Chase Oyster Bar PL v Hamo Industries PL [2010] NSWCA 190 Craig v South Australia (1995) 184 CLR 163 Eadie v Harvey [2017] NSWCATAP 201 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 House v The King (1936) 55 CLR 499 Jackson v NSW Land and Housing Corp [2014] NSWCATAP 22 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 Larney v Johansson [2013] NSWCA 409 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 NSW Land and Housing Corp v Orr [2019] NSWCA 231 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Purcell v Chadwick [2018] NSWCATAP 250 Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Texts Cited: Nil Category: Principal judgment Parties: Kimberley Developments PL (Appellant) Cicihour Pty Ltd (Respondent) Representation: Counsel: Solicitors: Weinberger Lawyers (Appellant) Clark McNamara Lawyers (Respondent) File Number(s): AP 20/29406 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Commercial and Consumer Division Citation: [2020] NSWCATCD Date of Decision: 18 May 2020 Before: FDL Holles, General Member File Number(s): COM 19/56140 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) against a decision concerning a dividing fences dispute which was made in the Consumer and Commercial Division of the Tribunal on 18 May 2020. 2. For the reasons set out below, we have decided to allow the appeal and remit the proceedings to the Tribunal for rehearing. Background and procedural history 1. The appellant (KDPL), who was the respondent in the application before the Tribunal, owns land which fronts on to the westerly end and part of the NE side of Kimber Lane, Forest Lodge, an inner suburb in Sydney, NSW. On that land is a building and a yard which is rented out to a timber operation. The operation involves large articulated vehicles entering and exiting the yard via Kimber Lane. The title designation of KDPL's land is Lot 37 in DP 785953. Kimber Lane apparently is still Old System title, the current owner of which is unknown. 2. KDPL's land is in a battleaxe shape. The handle of the axe runs roughly easterly in a narrow strip along Kimber Lane to meet up (as does Kimber Lane) with Junction Street, Forest Lodge, which is a public road. The handle is subject to a right of carriageway that extends for the entire length of Kimber Lane. The right of way (and Kimber Lane itself) extends into the broader axe head area along the front of part of the building co-extensive in that respect with Kimber Lane. 3. On the southerly side of Kimber Lane, opposite the axe head part of KDPL's land and with access at its easterly end to Kimber Lane, is land of the respondent to the appeal (CPL), who was the applicant in the application that was the subject of the proceedings. The title designation of that land is Lot B in DP 87371. CPL also owns Lot 1 in DP 575200 which fronts the southerly side of Kimber Lane between Lot B and Junction Street. 4. KDPL and CPL's land shares a direct common boundary between their rears (the westerly end) and the end of Kimber Lane which totals 26.49m in length. 5. As already indicated, for the length of Kimber Lane the parties have land that each bounds a side of Kimber Lane. On the southerly side of Kimber Lane 4.355m of CPL's Kimber Lane frontage is in CPL's title Lot B in DP 87371. The total length of Kimber Lane is 38.54m. The other 34.185m to Junction Street is in CPL's title Lot 1 in DP 575200. 6. It will be seen then that from the rear of the parties' adjoining land to Junction Street the total distance bounding titles and Kimber Lane is 65.03m. 7. The foregoing locations, dimensions and title details are taken from a survey dated 18 July 2019, which was in evidence before the Tribunal and appears to have been attached to CPL's fencing notice. 8. Along the entire 65.03m length from Junction Street to the westerly rear end of the parties' land had previously run a chain wire fence of about 1.8m height with three strands of barbed wire along the top, bringing the fence to a total height of about 2.1m. That fence was said by KDPL to have been in its location for about 40 years, without protest from owners of what is now CPL's Lot B and CPL's Lot 1 bordering the southerly side of Kimber Lane. The location of the fence was also shown on the 2019 survey. It was not on the surveyed title boundary. Rather, at the westerly rear end of the parties' land it encroached about 1m on to CPL's land for about three-quarters of the 26.49m direct common boundary. It then narrowed gradually to an encroachment of about 750mm at the westerly end of Kimber Lane and gradually tapered to minimal encroachment along the rest of Kimber Lane to Junction Street. The first instance hearing, decision and reasons 1. In the application filed on 16 December 2019, CPL sought equal contribution to a "like-for-like" replacement of the 26.49m westerly portion of the fence (called in these reasons "the claimed fence"). It said the over-40-year-old fence was irreparably damaged by heavy materials leaning against it on KDPL's side. 2. KDPL disputed the fence had to be replaced rather than repaired, the location of any replacement fence, and liability for sharing the cost of replacement. It said that any minor damage to the claimed fence arose from its use as a parking area by CPL, with cars backing into the fence, and primarily applied to the balance fence. It said the minor encroachment of the fence line caused no prejudice to the use as a car park but that there was great prejudice if the fence line was moved because of the inability of truck access to KDPL's premises. 3. The hearing occurred on 14 January and 20 March 2020. Both parties were self-represented at the hearing by respective officers or agents. From what we were told and from what appeared in the appeal books of each party (which had a large measure of duplication), there was no documentary evidence dated before the hearing on 14 January 2020. Between then and the hearing on 20 March 2020 each party filed a statement with some documents. 4. Near the conclusion of the 20 March 2020 hearing, the Tribunal offered the parties a further oral hearing, which was not taken up. The Tribunal then made directions for each party to file and serve written submissions and reserved the decision. 5. Each party appears to have interpreted written submissions liberally since CPL filed and served three further witness statements with extensive documentation in the nature of evidence as well as in the nature of submissions and KDPL filed one of a similar character, without complaint against the other doing so. 6. The Tribunal found, in the reserved decision of 18 May 2020, that the requirements of the Dividing Fences Act 1991 (NSW) (DFA) had been satisfied in terms of serving a fencing notice and providing quotation and survey (and implicitly the time limits before proceedings could be filed if there was no consensual resolution). These aspects were not the subject of challenge on appeal. 7. The Tribunal's reasons totalled eleven paragraphs, of which the last two dealt with the orders. 8. Of the balance, the first recited the Tribunal's jurisdiction under the DFA, the second dealt with the uncontroversial requirements already mentioned, and the next four dealt with ownership of Lot 37 and Lot B. 9. In [7], after reciting the like-for-like character of what was sought as a replacement fence, the Tribunal said what was effectively a like-for-like fence was "appropriate for the purpose" and went on: "As noted, the current fence is in a state of disrepair, it when new, would have been similar to the proposed replacement fence". 10. In [8] the Tribunal said the quotation was reasonable and noted what a half share for each party of that quotation would be. 11. In [9], "In Summary", the Tribunal said that it "was satisfied" that (a) the requirements of s 11(2) of the DFA as to service were met; (b) KDPL as adjoining owner was responsible for "contributing to the replacement of the existing insufficient fence" citing DFA s 6, and (c) the quotation was appropriate to "replace the existing fence with a fence of appropriate standard" again citing DFA s 6. 12. There was no mention of the requirements of DFA s 4 having been considered and been found to have been met. 13. There was no mention of where the fence was to be located and the reasons for finding that location, to give meaning to "between the land" in the orders. 14. The Tribunal made the following orders: The Respondent is to contribute half the cost of the replacement fencing between the land in Lot B in Deposited Plan 87371 owned by the applicant ,and lot 37 in Deposited Plan785953 owned by the respondent Kimberley Developments Pty Ltd The Works are to be organised and paid for by the applicant. Upon completion of the works the applicant is to serve on the respondent a copy of the invoice for the works. The respondent is to pay their half share of the invoice within seven days of service. The current estimate of the cost of the fencing is $1498.20 per party, including GST. The respondent is to clear their side of the fence of any material which would delay or hinder the removal of the old fence immediately upon notification of the likely commencement of the work by the applicant. Events after the first instance decision and orders 1. KDPL received the first instance decision and orders on 19 May 2020. The 28 day period for filing an appeal under rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), unless extended under CATA s 41, accordingly expired on 16 June 2020. 2. On 9 June 2020 KDPL was notified by CPL that work was to be carried out on 6 July 2020 on the claimed fence, not on the existing fence line but, rather, on the title boundary of Lot B. The balance of the fence (the balance fence) from the claimed fence to Junction Street was also to be replaced, with consistent fencing, on the boundary line of Lot B and Lot 1. On 24 June 2020 KDPL was advised that the work was re-scheduled to 7 July 2020. 3. There is no evidence that KDPL took any action by way of filing appeal proceedings or seeking a stay of the primary orders before 16 June 2020 and no evidence of the reasons for such inaction. 4. In the latter part of June 2020 there was correspondence between the parties disputing CPL's interpretation of "between the land" in the Tribunal's orders as empowering it to move the new fence to the surveyed title boundary, as described above. Notice of Appeal and stay application 1. On 7 July 2020, as work started on the new fence, KDPL filed its notice of appeal together with an application for a stay of the Tribunal orders. The original notice of appeal simply sought "clarification of orders" being the determination of the location of the new fence, and the extension of the claimed fence to add the balance fence. The new location of the fence was said to block access to KDPL's land which had been enjoyed for over 40 years. A stay was sought until the clarification was obtained. 2. An interim stay was granted ex parte on 7 July 2020 with directions to prepare for a further hearing on the stay. 3. On 14 July 2020 the interim stay was set aside on conditions. The primary condition, to enable the owner of a vehicle on KDPL's land to remove the vehicle or seek further relief, prevented the construction of the 8.715m of fence on the boundary at the immediate westerly end of Kimber Lane (being 4.355m on Lot B and 4.36m on Lot 1) until 5pm on 17 July 2020. 4. We were advised that the fence, of the type in the first instance decision, has since been fully completed, on the surveyed title boundary, being both the claimed fence and the balance fence. 5. On 21 July 2020 leave for legal representation by the currently-appearing practitioners was granted and directions were made to prepare the matter for hearing. Leave was granted to file an amended notice of appeal by 28 July 2020, which was done. Debate concerning an extension of time for filing the appeal and for any new grounds in the amended notice of appeal was reserved to final hearing of the appeal. 6. On 12 August 2020 KDPL served a fencing notice on CPL in respect of the balance fence, with an amended notice served 24 August 2020. No separate proceedings in respect of that notice have yet been filed but the time for filing on the amended fencing notice, in the absence of consensual resolution, has only recently expired. The amended notice of appeal; attempted extension of scope of appeal 1. The amended notice of appeal filed on 28 July 2020 sought to revise the first instance orders to give KDPL the carriage of replacing the existing fence with like-for-like but on the now-former fence line rather than on the surveyed boundary, with CPL contributing half the cost after completion. 2. Relief was sought by KDPL in respect of the balance fence as well as the claimed fence. We pointed out at the hearing that there were no proceedings in respect of the balance fence and therefore no appeal from such proceedings brought the topic before us. KDPL submitted that the width of discretion in the DFA permitted us to consider on appeal the balance fence. 3. We rejected that proposition at the hearing. It seemed to us that the Tribunal's jurisdiction under the DFA, including on this appeal, was engaged in respect of the fencing notice on which the first instance proceedings had been brought, which related only to the claimed fence. 4. We did not therefore need to determine whether the existence and the ownership status (both as to identity of any owner and the status as a private or public road) of Kimber Lane affected contiguity issues under the DFA, particularly under s 5. We anticipate that such would be a live issue in any proceedings brought on KDPL's amended fencing notice and therefore express no opinion on it. Grounds of appeal 1. There were four grounds of appeal which in substance are as follows: 1. As an error of law, the Tribunal did not properly determine the jurisdictional fact that there was "no sufficient dividing fence" in accordance with DFA s 4. 2. As a further or alternative error of law, the Tribunal gave no consideration to the determination of the location of any replacement fence, which was a material issue of contention between the parties and fundamental to the exercise of discretion to grant the relief claimed. 3. As a ground for leave, KDPL suffered a substantial miscarriage of justice in the Tribunal's findings being against the weight of evidence, including on the following issues: the sufficiency or otherwise of the existing fence; the location of any replacement fence; existing use of the neighbouring lands; portions to be repaired or replaced by each owner. 4. As a ground for leave, KDPL suffered a substantial miscarriage in the Tribunal's findings not being fair and equitable because the Tribunal focused on only one issue, being title to land. 1. Although inadequacy of reasons was not posited as an express, separate question of law in the grounds of appeal, in our view it is implicit in the questions of law expressly set out. The parties, properly, appear to have so treated it since it was fully debated in each party's comprehensive and helpful written submissions. Applicable legal principles for CCD appeals raising a question of law 1. Section 80(2)(b) of the CATA states: Any internal appeal may be made: (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. 1. Clause 12 of Schedule 4 to CATA 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). 1. A Division decision is a first instance decision of the Consumer and Commercial Division. The decision under appeal is such a decision. 2. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which 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) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 3. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56]. However, at least a jurisdictional error must be material (in the sense of possibly changing the outcome of the consideration by the decision-maker and the making of a different decision) to deprive the decision of legal effect, or to have any residual discretion exercised in favour of setting aside the decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[31], [40], [42]-[44], [62]-[80]. 2. A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the CATA, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62]. 3. Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193]. Questions of law 1. In the circumstances of this appeal we consider that it is appropriate first to discuss the questions of law to set the context for considering extension of time to appeal. 2. In our view the questions of law arising from the Tribunal's first instance reasons are evident when one measures those reasons against the test in NSW Land and Housing Corp v Orr [2019] NSWCA 231 at [55], [66]-[67], [69], [71]-[77], [109] being in summary that the Tribunal's reasoning must disclose an explanation of the fundamental reasons that led the Tribunal to its conclusion. 3. The first instance reasons fail to indicate the following matters: 1. The reasons for concluding "as noted" (when nothing relevant appears elsewhere in the reasons) that the current fence was in a state of disrepair. This is fundamental to determining whether there was a "sufficient dividing fence" under DFA s 4, which is the jurisdictional gateway to the Tribunal's discretionary power to order a new dividing fence and determine the nature and location of that fence: Alwiah v Watts [2004] NSWSC 948 at [10]; Larney v Johansson [2013] NSWCA 409 at [30]. There is no exposed reasoning to show consideration of the mandatory factors to be taken into account in coming to the conclusion on this jurisdictional fact. 2. The determination of the location, or re-location, of any new fence and the reasons in support of that location or re-location. The issue is left inherently ambiguous as the dispute between the parties over the meaning of "between the land" amply illustrated. This is a fundamental requirement in exercise of the Tribunal's discretionary power to order a new dividing fence and determine the nature and location of that fence, including the commercial impact of the location: Purcell v Chadwick [2018] NSWCATAP 250 at [55]. 1. While the test in Orr recognises that Tribunals have latitude in the degree and depth of reasons in proportion to the character of the decision for which reasons are given, the touchstone is still that a person must have sufficient reasons to understand the basis for the decision that was arrived at. That is absent here. 2. We conclude that grounds 1 and 2 are made out and that, in addition, the Tribunal's reasons for decision are inadequate. Other grounds 1. There is no need, given the clear errors of law, to consider the grounds which would require a grant of leave. 2. We express no opinion on the matters in them, since they may well be the subject of further consideration elsewhere. 3. We do however note that the first instance orders strictly went beyond the proper scope of relief. The reasons that we have given to reject extending KDPL's application to extend the consideration on appeal beyond the claimed fence equally applies to the 4.355m portion of the balance fence which is just beyond the claimed fence but is still on CPL's Lot B. Extension of time 1. In Jackson v NSW Land and Housing Corp [2014] NSWCATAP 22 at [22] the Appeal Panel comprehensively expounded, by reference to established principle in other authority, the discretionary factors to be balanced in granting or refusing extension of time under CATA s 41. 2. In the present case, the same discretionary matters arise in respect of the late filing of the original notice of appeal and the additional grounds in the amended notice of appeal. 3. There was no adequate explanation for the delay in filing a notice of appeal after 9 June 2020. In the communications between the parties it was clear that KDPL was alive to the gravamen of its complaints that have formed the grounds in this current appeal. 4. In the reasons seeking an extension of time, KDPL said that it filed the notice of appeal on 7 July 2020 without legal advice and did not appoint legal representatives until 17 July 2020. No explanation was given for the delay in such appointment. CPL in response contended that there was access to different legal advice at the time of original filing. KDPL conceded that KDPL was not inexperienced in commercial legal issues. The primary material showed that it was involved in Supreme Court proceedings, defending a claim brought by the predecessor in title to CPL, which was noted by the Tribunal in the reasons as ongoing. 5. However, the foregoing must be balanced against the strength of the grounds of appeal, on which we have found that KDPL is clearly entitled to succeed. We would describe the strength of those grounds as overwhelming. With a frankness and fairness that characterised her oral argument CPL's solicitor-advocate acknowledged the absence of reasons and findings on fundamental matters. 6. Finally, CPL could advance no substantive grounds of prejudice from a grant of leave apart from those of time and cost in having to meet an appeal and the consequences of an appellate decision. We shall reserve the position on costs of the appeal for further argument, as both parties sought. 7. In particular, CPL frankly acceded to the correctness of the proposition that, because the new fence had not been hindered in its construction by a stay, there was no prejudice apart from what would happen as a consequence of the appeal and any further determination of the matter adverse to its position on the appropriate location of the fence. That was something on which CPL had been on notice of KDPL's contentions during the first instance hearing and after the orders but before it built the fence. 8. In this respect, there also can be no relevant prejudice from the construction of the balance fence. CPL chose to do this. It may be just inside CPL's land, not right on the boundary of Kimber Lane. CPL had not made it the subject of a fencing notice. It was not the subject of the present proceedings, as said by CPL's solicitor in the course of the first instance hearing (T 14, 25) and as stated in statements by CPL's representative dated 28 January 2020 para 37, 9 April 2020 para 22 and 4 May 2020 paras 8-12, 26-34. 9. Although unexplained for the critical period, the delay in appealing was relatively short compared with the time taken to reach that point in the overall controversy between the parties and the consequences of the primary orders, and the potential commercial prejudice to KDPL and its tenants of being shut out of an appeal. 10. While a party is entitled to the fruits of its victory without the possibility of that victory being unwound on a delayed appellate challenge and consequences from that challenge, in our view the comparatively short period of delay, the absence of demonstrated prejudice to CPL and particularly the strength of the appellant's legitimate complaint weigh significantly in favour of extending time for filing the original appeal. 11. The same factors operate in respect of the new grounds in the amended notice of appeal. Additionally, those new grounds disclose evident questions of law that did not raise additional burden of preparation and were to some extent flagged in the original notice of appeal. 12. Accordingly, we extend time for filing the notice of appeal to and including 7 July 2020 and, to the extent that further leave is required, for filing the amended notice of appeal to and including 28 July 2020. Form of relief including utility 1. CATA s 81 provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal. The section sets out a list of available orders which is not exhaustive. That list includes: allowing the appeal; re-determining the matter on the existing evidence with or without any further evidence from the parties; setting aside the primary decision and remitting the whole or any part of the case to the original jurisdiction of the Tribunal for reconsideration, either with or without further evidence and in accord with the Appeal Panel's directions. 2. Both parties invited us to re-consider the matter on the available evidence. 3. We do not consider that is an appropriate course in the present case. 4. First, despite the comprehensive evidence already adduced, it is primarily directed to the claimed fence. It is clear, from its amended fencing notice, that KDPL wishes to agitate concerning the balance fence as well as the claimed fence as an integrated unit. That cannot be done fairly on the existing evidence. As said earlier, it is beyond the scope of the proceedings the subject of this appeal. It requires KDPL to lay the grounds for and initiate fresh proceedings which, when properly prepared, can be heard together with the existing proceedings. Such preparation should be prompt and we are sure the Divisional directions in the Tribunal will endeavour to promote that outcome. 5. Second, such an exercise can only be prepared with appropriate directions and fairly heard by remitting the existing proceedings to the Consumer and Commercial Division. 6. Third, we raised with KDPL the utility of remission given the existence of a replacement fence which may well be found to be a sufficient dividing fence, however it came into existence. KDPL replied that it wished to rely upon established authority that the absence of finding of a jurisdictional fact meant that the exercise of discretion to order a new fence was without statutory authority and the order based on it was void: Chase Oyster Bar PL v Hamo Industries PL [2010] NSWCA 190 at [176], [178] and authority there cited. Accordingly, KDPL's argument was that the existence of the new fence was irrelevant to determining the insufficiency of the former dividing fence as it was constructed without authority and could not be taken into account in determining the jurisdictional question. Further, KDPL's position was that, even if the existence of the fence was taken into account on the jurisdictional question, the fact it was built without authority was relevant to the exercise of discretion about the location of any new fence. 7. We express no view on that argument except to say that it clearly is arguable and KDPL is entitled, having established the errors of law, to have the opportunity for it to be properly heard and determined. We therefore conclude that the appeal should be allowed, and the existing proceedings remitted to be reconsidered by a member of the Tribunal in conjunction with any further and timely proceedings concerning the balance fence brought by KDPL. Costs of the appeal 1. As the matter does not come within rules 38 and 38A of the Rules, CATA s 60 will require special circumstances to be established for a party to be awarded any costs in respect of the appeal. We make provision in the orders if parties wish to agitate questions of costs after the substantive decision on the appeal, as both parties indicated they wished to do. Orders 1. The orders we make are: 1. Time for filing the notice of appeal is extended to 7 July 2020 and, to the extent that further leave is required, time for filing the amended notice of appeal is extended to 28 July 2020. 2. The appeal is allowed. 3. The proceedings are remitted to the Consumer and Commercial Division for re-hearing in conjunction with any further proceedings properly brought by the appellant. 4. In respect of the costs of the appeal: 1. (a) The parties are to file and serve written submissions in chief with any further material relevant to costs within fourteen days of the date of these orders; 2. (b) The parties are to file and serve written submissions in reply with any further material in reply relevant to costs of the appeal within 28 days of the date of these orders; 3. (c) If no written submissions are filed and served in accord with paragraph (4)(a) then there will be 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. 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: 19 October 2020