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 Judgment 1. This is an appeal in a dividing fences matter. 2. In November 2020 the appellants commenced proceedings in the Tribunal for relief under the Dividing Fences Act 1991 (NSW) (DFA) against their neighbour, the respondent. 3. On 17 May 2021, after a hearing by telephone, the Tribunal made a number of orders determining the dispute, including that fencing work the subject of a quotation dated 28 October 2020 from Jim's Diggers (the subject also of a fencing notice pursuant to the DFA given by the appellants to the respondent) be carried out (order 4), the appellants and the respondent pay for the cost of the fencing work in equal portions (order 6) and the respondent pay its portion in the amount of $664.00 to the appellants on or before 24 May 2021 (order 7). 4. The appellants appeal against orders 6 and 7. They have no objection to order 4. 5. By order 8 it was ordered that the fencing work was to be completed on or before 17 July 2021. That order was stayed pending the appeal and has been overtaken by the time which has elapsed. 6. The appeal first came on for hearing by telephone on 19 July 2021. On that occasion, the appellants daughter, Ms Taha, appeared for the appellants. There was no appearance by the respondent. We adjourned the hearing of the appeal because it came to our attention that notice of the dial in details for the hearing of the appeal had only been delivered to the respondent's residential address in the morning of 19 July 2021 even though it had been sent by express post some days earlier. The only contact details that the Tribunal and Ms Taha had for the respondent was his residential address. 7. The appeal next came on for hearing by telephone on 9 August 2021. On that occasion, Ms Taha appeared for the appellants and there was no appearance by the respondent. We decided to proceed with the hearing of the appeal on this occasion because there were documents on the file with the Registry showing that notice of the new listing on 9 August 2021 was delivered by express post to the residential address of the respondent on 23 July 2021 and that notice of the dial in instructions were delivered to the same address by express post on 4 August 2021. 8. Under Rule 13 (2) (c) of the Civil and Administrative Tribunal Rules 2013 documents may be served upon a party by leaving a copy at a person's residential address (and also under Rule 13 (2) (b) by posting a copy of the document to the person's residential address). 9. For the purpose of the appeal, the appellants provided written material consisting of their Notice of Appeal (and accompanying documents) and written submissions dated 23 June 2021. 10. Despite orders concerning the conduct of the appeal made on 11 June 2021 (sent by post to the respondent's residential address) requiring the respondent to lodge and give to the appellants various documents, including a Reply to Appeal and written submissions, no such material was provided by the respondent. We were told by Ms Taha at the hearing of the appeal that the absence of such material from the respondent was consistent with the approach he took to the proceedings at first instance in which he served no evidentiary material. 11. The appellant was self-represented. In Cominos v Di Rico [2016] NSWCATAP 5 ("Cominos") at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal and that in such circumstances 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. We have approached the appeal in this manner. 12. The problem with the Tribunal's decision from the appellants' perspective is that their claim was for repair work to be carried out to the dividing fence, in order to restore it to its previous state, because of unsuitable and allegedly unauthorised work carried out by the respondent in respect of part of the existing fence which was in good condition before this further work was done. 13. In those circumstances, they contended that the respondent should bear all of the cost of the such repair work the subject of the quotation from Jim's Diggers. It is clear from the quote that the work to be carried out is in relation to 3 sheets of the fence only. 14. Their contention that the respondent should bear all of this cost accords with s 8 of the DFA. That section provides: 8 Contribution where negligent or deliberate act (1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner. (2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction. (3) In determining an adjoining owner's liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section. 1. Section 7 of the DFA provides for an adjoining owner to contribute to the carrying out of fencing work that would result in a dividing fence of a standard no greater than the standard for a sufficient dividing fence. 2. The Tribunal found that the work to the fence that had been carried out by the respondent was not "a sufficient dividing fence" and accepted that the work proposed by the appellants in their fencing notice should be carried out. 3. The Tribunal decided that the cost of the work the subject of the fencing notice should be borne equally in view of the following: 3. The applicant said that in late 2020 Mr O'Brien removed a line of trees that created privacy between their backyards. Mr O'Brien said nothing about removal of trees but said that the applicant entered into a verbal agreement with him to put sleepers in the fence to raise the height of the fence. The sleepers would not only raise the fence but act as a retaining wall on his side for a garden bed he wished to have there. He said 3 days after that the applicant change (sic) his mind and wanted to return to the old fine (sic). 4. The applicant said that there was discussion about how to maintain privacy after removal of the trees. Mr O'Brien's partner suggested to the respondent's (sic) daughter that to raise the fence to ensure privacy, sleepers would be used. The daughter said she would speak with her ill father to see what he wanted. She said when she came back a few days later the job had been done without consent and without her having been able to report her father' is position on the proposed job. 5. The applicant provided photos and a report from a timber and building supply company to show that timber sleepers were insufficient as a part of a dividing fence. The photos showed missing bolts/screws on the colorbond, colorbond not in line and leading onto the applicant's side, the height had not been raised back to 1.8 m, there is a gap between colorbond and timber, the timber area is beside the applicant's BBQ area creating a fire hazard and the wood was already going mouldy and rotting as it had not been treated before being put in place. 6. The Tribunal accepts this evidence that the fence as changed by Mr O-Brien is not a sufficient dividing fence. There was no evidence to counter it form (sic) Mr O'Brien. 7. The Tribunal cannot make a finding as to whether there was an oral agreement for Mr O'Brien to do the work. The Tribunal accepts the oral evidence of each of the parties about the negotiations equally. The only common agreement between them was that the fence should be raised for privacy purposes. Both parties want the fence to create privacy. The Tribunal finds the most just outcomeis that both parties contribute equally to the fencing work to be done as set out in the fencing notice. 1. The Tribunal's decision does not address the substance of the appellants' case for payment of the whole of the cost of the repair work and does not advert to s 8 of the DFA. In this regard, in our opinion, the Tribunal erred in law by failing to ask itself the right question. 2. The appellants' case was, clearly, apparent from the witness statement by the appellants' daughter (Ms Sonia Taha) dated 21 January 2021. In that statement it was said: Prior to the incumbents of the property making alterations to the fence, the fence was in good order and did not require any repairs or changes to be made. 1. Earlier in the statement it was said, amongst other things, that those residing on the neighbouring property had altered the fence without the appellants' prior knowledge or consent. 2. The Tribunal said that it did not accept there was a verbal agreement for the alteration work to be carried out, as contended by the respondent. In those circumstances, if it had accepted the appellants' contention that the work now required was occasioned by an authorised alteration to an existing satisfactory dividing fence it is impossible to see how it could reasonably arrive at any other conclusion than that the respondent should pay for the work the subject of the fencing notice. 3. Furthermore, the respondent never provided any written statement or oral evidence in reply to the appellants' written statements. The respondent did not attend the hearing in the Tribunal. At the hearing the respondent was represented by another person (not a lawyer) who told the Tribunal: On the 18th September last year there was a verbal agreement between him [the respondent] and Sonia that they would put some sleepers in and raise the fence… He said that the sleepers are going to form like a retaining wall because he has a garden bed on the other side. And because his land is slightly more raised than hers the soil tends to go under the fence into her side. So his solution was let's raise the fence to have more privacy for both of us and put the sleepers in across the bottom to negate that. 1. However, in these circumstances, it was not open to the Tribunal to regard the respondent as having adduced any evidence to contradict the evidence of the appellants. It erred in law in finding otherwise. 2. In our opinion, on the evidentiary material that was adduced, the Tribunal ought to have found that the work required by the fencing notice was required because of unauthorised, unsuitable, alteration work done to the existing, satisfactory, dividing fence and, accordingly, decided that, pursuant to s 8 of the DFA, the whole of the cost of the new fencing work should be borne by the respondent. 3. At the hearing of the appeal on 9 August 2021, Ms Taha told us that no money had been paid by the respondent pursuant to order 7 of the Tribunal's orders made on 17 May 2021 and that the order she sought was that the respondent pay the appellants the sum of $1328.00 within a time we should determine. We also raised with her the question of a date for completion to be provided for in a variation of order 8 bearing in mind the present movement restrictions imposed in respect of the Covid 19 pandemic and the potential for future restrictions. Ms Taha told us she was confident of being able to have the fencing work carried out in the near future. Nevertheless, because of the uncertainty about these restrictions we have made provision for liberty to apply to vary the date we have decided upon for completion of the work. Orders 1. For these reasons, we make the following orders: 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. ********** 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: 12 August 2021