Saleh v O’Brien [2021] NSWCATAP 240

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Saleh v O'Brien [2021] NSWCATAP 240 Hearing dates: 19 July 2021; 9 August 2021 Date of orders: 12 August 2021 Decision date: 12 August 2021 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: (1) The appeal is allowed. (2) Set aside orders 6, 7 and 8 made by the Tribunal on 17 May 2021. (3) The following orders are made in substitution for these orders that are set aside. (4) The respondent is to pay the whole of the cost of fencing work the subject of the fencing notice dated 29 October 2020 in the sum of $1,328.00 within 14 days of the publication of these reasons. (5) The fencing work the subject of order 4 made by the Tribunal on 17 May 2021 is to be completed on or before 30 September 2021, with liberty for the appellants to apply to the Appeal Panel to vary this date in the event that it proves to be not practicable to complete the work by this date. Catchwords: PROPERTY LAW-dividing fences-liability of adjoining owner for the whole of the cost of fencing work pursuant to s 8 of the Dividing Fences Act 1991 (NSW). APPEALS-- error of law-failure to ask the right question-conclusion not to prefer the evidence of one party over another not reasonably open to the Tribunal-no evidence adduced by respondent to the Tribunal at first instance. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2013 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Texts Cited: Nil Category: Principal judgment Parties: Saleh Mohamed Saleh (First Appellant) Squad Saleh (Second Appellant) Steve O'Brien (Respondent) Representation: First Appellant (Self-Represented) Second Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): 2021/00147682 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 17 May 2021 Before: G Bassett, General Member File Number(s): COM 20/50029