Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Morton v Berry [2021] NSWCATAP 174 Hearing dates: 14 April 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member L Wilson, Senior Member Decision: 1. Leave to appeal is refused. 2. The Appeal is allowed. 3. The decision below is varied, such that order 1 is now as follows: Ms Morton the respondent is to pay Ms Berry the applicant the sum of $5,654.14. 4. We order that any amount overpaid by the appellant under the order as now varied be repaid by the respondent, within 14 days. 5. No order as to costs. Catchwords: APPEAL – Dividing Fences Act 1991 (NSW) – renewal of proceedings – meaning of 'fencing work' Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Browne & Keith [2015] FamCAFC 143 Texts Cited: None cited Category: Principal judgment Parties: Justine Morton (Appellant) Jennifer Berry (Respondent) Representation: G Morton (Appellant) K Taylor (Respondent) File Number(s): 2021/00056084 (AP 21/05592) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 5 February 2021 Before: J Levingston, General Member File Number(s): COM 20/39436 reasons for decision Introduction 1. The parties are adjoining owners of properties in Mosman. 2. This is an appeal against a decision of the Consumer and Commercial Division (CCD) concerning a dividing fence. The decision was made after the respondent to the appeal lodged a renewal application in respect of non-compliance by the appellant with previous orders. Renewals are available in the CCD if the person in whose favour a decision has been made lodges a notice (called a renewal application) with the Tribunal within 12 months after the end of the period specified by the Tribunal, stating that the order has not been complied with: cl. 8 Sch.4 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 3. Prior to the renewal application the Tribunal had made orders on 17 December 2019. Those orders were pursuant to the Dividing Fences Act 1991 (NSW) (DFA) and included: 1. By 30 June 2020 the applicant [Berry] shall cause a timber paling fence to be constructed in the area where the "old paling fence" is presently situated and beside the garage. … 5. The parties shall share equally in the cost of a sufficient dividing fence as described [in] these orders. 1. The appellant paid the respondent half of the cost of the fence. The respondent asked the appellant to pay half of some other costs which the respondent argued were associated with erecting the dividing fence. The appellant refused. The respondent therefore lodged the renewal application, which sought an order that the appellant pay half of the costs which the respondent alleged were associated with the fence. 2. On 5 February 2021, the Tribunal conducted a hearing of the renewal application and later that day published reasons for its decision, which was to order the appellant pay the respondent half of the costs associated with the fence, as found by the Member, which, allowing for amounts already paid amounted to $6,066.64 (the Decision). The grounds of appeal 1. There are two grounds of appeal: 1. The Member erred in law by finding that legal costs, certifiers costs and cost of dilapidation reports were contributions to "fencing work" as defined in ss.3 and 14(1)(c) of the DFA: or 2. In the alternative, that the Member should have considered the appellant's legal, certifier and surveying costs and set those off against the amount the Member found the appellant owed the respondent. 1. The first ground is an allegation of an error on a question of law. 2. The second ground is an allegation that the Decision was not fair and equitable or was against the weight of the evidence. These are questions other than of law and for which the appellant needs leave to appeal: s.80(2)(b) and cl.12 of Sch. 4 of the NCAT Act. 3. For the reasons which follow, we accept the first ground of appeal is made out. We do not give leave to the appellant to appeal in respect of the second ground. Consideration of the first ground of appeal 1. At a renewal hearing, a Member may make the same orders as could have been made at first instance: cl.8(4) Sch.4 NCAT 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. 1. The fact that the application being determined on 3 February 2021 was a renewal does not change the ability of the Tribunal to make orders under enabling legislation applicable at the first, or original, hearing. The Member seems to acknowledge this at [3] of the Decision. 2. That is, the Member had the power to make "any other appropriate order under" the enabling legislation which in this case is the DFA. Relevant sections of that Act include: 3 Definitions In this Act: … fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence. … 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. … 23 Costs In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal may award costs against either party. 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). … 1. In paragraph 4 of the reasons for the Decision, the Member wrote: The issue in dispute concerns the respective contributions of the parties to the cost of the timber paling fence which was the subject of Tribunal Order 1 made 17/12/19 and whether or not the cost included additional costs incurred arising from the word "cause" used in that order. 1. The Member then determined, at [34], "that all these costs should be shared equally between the parties as the work was necessary and is ancillary or associated with the fencing work". 2. The costs incurred by the respondent which the appellant was ordered to contribute to, that are challenged in this appeal are: 1. Legal advice $2,247.30 2. Private certifier $2,750.00 3. Dilapidation reports $825.00 1. We are satisfied that the Member asked himself the wrong question in [4] by considering "whether or not the cost [of the timber paling fence] included additional costs incurred arising from the word "cause" used in that order [of 17/12/19]". 2. The words used in the order do not give the Tribunal the power to make further orders on the renewal; any orders made on a renewal still must be in accordance with the enabling legislation. 3. The Member appears to have made the money order pursuant to s.14(1)(c) of the D F A. That subsection was set out in [15] of the reasons for the Decision, albeit as a quotation from the original decision on 17 December 2019. No other sections from the enabling legislation were cited. However, as can be seen, s 14(1)(c) refers to fencing work, which is a defined term in s.3 of the DFA. 4. The Member seems to have undertaken the following process, which we find was erroneous, in that he: 1. considered the orders of 17/12/19 that were being renewed: at [4]; 2. considered the meaning of "cause" in the previous Member's orders: at [5] to [9]; 3. accepted the respondent's contention that "cause" in the previous orders "includes costs which are ancillary and associated to the erection of the fence": at [6]; and then 4. considered each of the 8 itemised claims in the renewal application, and determined whether each of those costs should be shared equally applying the test whether "the work was necessary and is ancillary or associated with the fencing work": at [34]. 1. It is true the Member does not refer to any sections of the DFA in making his orders, however there is authority to say that a Member does not have to refer specifically to the sections of the enabling legislation which empowers them to make the orders: Browne & Keith [2015] FamCAFC 143. However, this is the case so long as the conditions precedent are in fact considered and the Member in fact had the power to make the order. 2. The Member below only appears to have considered the meaning of the order being renewed, not the enabling legislation which empowered him to make orders on the renewal. His turn of phrase in describing "costs" or "work" associated is not from the Act; it is the way he has chosen to interpret "cause" in the previous order. There is no mention of ancillary or associated costs in the DFA. 3. There is however, at [3] of the reasons for the Decision, reference to s.29 of the NCAT Act, which relevantly provides in s.29(2) (emphasis added): (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction— (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. 1. There is no reference to "associated costs" in the DFA or the NCAT Act. 2. The Member did not discuss, and the parties on the appeal did not make any submissions about, the power of the Member to make the appellant pay costs which are not fencing costs defined in the DFA, pursuant to s.29 of the NCAT Act. 3. In the absence of cogent submissions, we are not satisfied that s 29 of the NCAT Act extends the Tribunal's power to make orders under enabling legislation which are not otherwise permissible under the enabling legislation. 4. We agree with the appellant that legal advice is not fencing work, even if the legal advice was for preparatory to or for the purpose of arranging for the fence to be erected. Legal costs may be awarded under different provisions of the DFA or NCAT Act, but not as fencing work. 5. We also agree that the dilapidation reports, which were produced after the original decision had already determined that the "existing fence is not a sufficient fence" were not costs which should have been ordered by the Tribunal on any view of it, but in any event cannot be fencing work. They could be legal costs, essentially expert evidence to prove that an existing fence is not a sufficient dividing fence, but that was not the basis of the Decision and it was manifestly unreasonable that they be ordered, given that the report was not required or probative for the reasons we set out above. 6. At the hearing, the appellant accepted that, in the circumstances of this case, the private certifier was required for the design and/or construction of the fence. Given that, we find that the certifiers' cost in this matter would fall within the definition of fencing work. 7. The parties to the appeal agreed, and we are satisfied that the Member had the power to order the appellant pay some or all of the legal costs incurred by the respondent pursuant to s.23 of the DFA. 8. Section 23 does not require special circumstances to be found and does not restrict the amount each party should contribute to the legal costs. That is, as long as he acted judicially, the Member may have ordered the appellant to pay 100% of the respondent's legal costs under that provision. As it was, the Member determined the parties should share the legal costs in equal proportions. 9. The Tribunal did not explicitly make the money order in the Decision pursuant to s.14(1)(c) but we infer this was the subsection which the Member relied on to make the money order. The Member did not refer to s.23 at any point in the Decision. 10. Whilst it was an error of law for the Member to have ordered, pursuant to s.14(1)(c) of the DFA, that the appellant pay half of the respondent's legal costs, he could have done so under s.23 DFA, and that is certainly what the Member determined should be the outcome of the renewal application. We will not disturb this aspect of the Decision, as we are satisfied that the error had no bearing on the outcome. Resolution of the first ground of appeal 1. As we are satisfied that the decision to order that the appellant contribute to the dilapidation report was manifestly unreasonable, we will allow the appeal on this ground and resolve that issue in the orders we make, by reducing the amount the appellant must pay the respondent by $412.50 (the one-half contribution to the total invoice). Consideration of the second ground of appeal 1. This ground is that if the Member was to make an order that the appellant pay the respondent's legal and other costs, it was unjust not to set these off against the appellant's costs (which amount to $7,926). 2. To make out this ground of appeal the appellant first needed to prove that: 1. evidence of the appellant's costs were before the Member; and 2. she asked the Member to set off her costs against the respondent's. 1. The appellant tendered 3 invoices, amounting to $7,926, on the appeal: appellant's documents 64, 65 and 66. There was no evidence these invoices were before the Member below. The respondent conceded page 64 (a surveying invoice) was before the Member below but could not properly concede that pages 65 or 66 were. 2. The appellant was directed, at the call over on 18 February 2021, to … lodge with the Appeal Panel and give to the Respondent (Berry) by 12 March 2021 (a) All evidence given to the Tribunal below on which it is intended to rely; (b) The Appellant's written submissions in support of the appeal; and (c) The sound recording of the hearing at first instance, if what happened at the hearing is being relied on and a typed copy of the relevant parts. 1. The appellant fairly conceded during the appeal hearing that it was an oversight not to have provided the transcript. This would have shown what evidence was before the Member and what the appellant asked the Member to do with that evidence. 2. The reason the appellant needed to ask the Member to set off her invoices was because the Member was deciding the respondent's renewal application. The appellant did not have an application for the Tribunal to determine. In order to bring the set off to the Member's attention, the appellant needed to request the Member set off any costs he found the appellant liable to pay the respondent. The appellant thought that she did make this request. The respondent recalled the appellant started to talk about her own costs but did not go into detail. 3. We needed the transcript to determine this ground of appeal in the appellant's favour. Without proof that the invoices were before the Member below or that the set off request was made, this ground of appeal fails. 4. Therefore, we decline to grant leave for the appellant to appeal on this ground, which is not on a question of law. Costs 1. Following the directions made at the directions hearing on 18 February 2021 were notes. The second note was: If any party wishes to make an application for costs of the appeal, that party is to lodge with the Appeal Panel and give to the other party any submissions on costs at the same time as their submissions in relation to the appeal. 1. Neither party made an application for costs. In any event, any cost applications would have had to establish that special circumstances warrant the award of costs, pursuant to s.60 of the NCAT Act. 2. We make no order as to costs, with the result each party pay their own costs. Orders 1. The Orders of the Appeal Panel are as follows: 1. Leave to appeal is refused. 2. The Appeal is allowed. 3. The decision below is varied, such that order 1 is now as follows: Ms Morton the respondent is to pay Ms Berry the applicant the sum of $5,654.14. 4. We order that any amount overpaid by the appellant under the order as now varied be repaid by the respondent, within 14 days. 5. No order as to costs. ********* 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: 17 June 2021