Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Geracitano v Cloughessy [2021] NSWCATAP 329 Hearing dates: 21 October 2021 Date of orders: 26 October 2021 Decision date: 26 October 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member G Blake AM SC Senior Member Decision: (1) Leave to appeal is refused (2) The appeal is dismissed Catchwords: APPEAL – failure by appellants to provide material in accordance with Directions for the preparation of the appeal – failure held to have denied the Appeal Panel the opportunity of considering the appeal – leave to appeal refused and appeal dismissed DIVIDING FENCES – held that Order that fence constructed on top of a retaining wall within jurisdiction despite proposed collateral use of the retaining wall to retain a driveway Legislation Cited: Dividing Fences Act 1991 (NSW), s 3 Civil and Administrative Tribunal Act (NSW), s 80, Sch 4, cl 12 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Daniel Geracitano (Appellant) Tharon Cloughessy (Respondent) Representation: Appellant (Self Represented) Respondent (Self Represented) File Number(s): 2021/00215180 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 29 June 2021 Before: D Charles Senior Member File Number(s): COM 20/38815 reasons for decision Background 1. In these proceedings the appellants Daniel and Morgan Geracitano seek leave to appeal and to appeal from orders made by a Senior Member of this Tribunal on 29 June 2021 in response to an Application brought by the respondent Tharon Cloughessy under the Dividing Fences Act 1991 (NSW). 2. The appellants and the respondent own adjoining properties. The Application sought an order that a dividing fence be constructed on the boundary line of their properties 36.4 m long consisting of an Ezy Clip Fence constructed on top of a retaining wall using galvanized H Beams and treated pine sleepers. Attached to the Application was a quotation from Mister Fencing Pty Ltd in the sum of $12,594.40 being $9282.00 for the retaining wall and $3312.40 for the fencing together with GST. The Application also sought an order for the removal by the appellants of soil which had allegedly been dumped onto the front yard of the respondent's property after excavations. 3. It is apparent from photographs contained within the appeal documents that the level of the land owned by the respondent is higher than the land owned by the appellants. This has created a need to support the land of the respondent where it adjoins that of the appellants by means of a retaining wall. 4. On 25 January 2021 a Member of the Tribunal adjourned the proceedings to enable the parties to produce appropriate evidentiary material in response to their respective cases. Significantly, the Member noted that the definition of "dividing fence" in the Dividing Fences Act excluded disputes about retaining walls unless a retaining wall was "a foundational support necessary for the support and maintenance of the fence." The parties were encouraged to adduce evidence about this particular matter and the Member assisted both parties by indicating the nature and extent of the evidence that should be provided. The decision under appeal 1. The proceedings came on for hearing before a Senior Member who made orders on 29 June 2021 which essentially embraced the proposal contained in the respondent's Application. The Senior Member issued reasons for his decision in which he determined: 1. that a retaining wall was necessary as the foundation for the support and maintenance of "the paling fence both parties now agree should be installed." 2. that he preferred that a retaining wall be constructed on the basis of a report and engineering drawings prepared by Mr John Rafeletos consulting engineer retained by the respondent which recommended the construction of a retaining wall to support the fence with enhanced specifications to support not only the fence but also an adjoining concrete driveway to be constructed on the respondent's property over which heavy vehicles could be driven. 3. to reject a scope of works contained within a quotation of Ezy Clip Fencing System dated 9 April 2021 supported by a written report of Gilcon Structural Engineers retained by the appellants to the effect that the boundary fence could be erected immediately next to the respondent's driveway without the need for any supporting retaining wall as advocated for by the appellants. 1. In deciding to determine the proceedings in this manner the Senior Member referred to written evidence produced by the parties, oral submissions made by the parties and oral evidence given by a Mr Nicholls a quantity surveyor who had also provided a written report for the respondent determining a basis upon which the costs of the retaining wall should be borne by the parties, namely 70% by the respondent and 30% by the appellants. 2. Significantly, after referring to the above evidence the Senior Member said, in his reasons: "10. I am not persuaded by the (appellants') case that any retaining wall work should be limited to a scope of works as put in the Ezy Clip Quotation (i.e. as to height of 400 mm) 11. Rather, I accept the written evidence of Mr Rafeletos in his report dated 19 February 2021 that: "The fill placed along the southern boundary requires the construction of a retaining wall which will be reliant to support the proposed boundary timber paling fence. We recommend the retaining wall and fence be of similar construction to other residences in the subdivision." 12. The written evidence of Mr Rafeletos was supported by Mr Nicholls' written and oral evidence. 13. There was written evidence from Mr Loomes of Gilcon Structural Engineers which stated that there is no structural reason why an (engineered) retaining wall could not be constructed wholly within the (respondent's) property and allowing the boundary fence to be constructed at the natural ground level. However, I did not find this evidence of any real assistance because it does not take into consideration the (respondent's) submissions, which I accept, and which I note are material and relevant matters under s4 of the DF Act in determining whether or not there is sufficient dividing fence, that a lower height retaining wall would bring a lower height paling fence with adverse privacy, safety and aesthetic consequences. 14. I further find that Mr Nicholls' written and oral evidence provides a proper and fair basis on which costs should be borne (70/30) between the (respondent) and the (appellants), respectively as to the construction of the retaining wall in accordance with the engineering drawings." 1. We wish to emphasise that the above extract contains the gravamen of the reasons for decision of the Senior Member. The grounds of appeal 1. Whilst there are a number of grounds of appeal, essentially the appellants submitted that the Senior Member should have determined the Application on the basis that he should have decided that the fence be erected on the boundary but immediately adjacent to a retaining wall constructed to support the respondent's driveway. In the alternative the appellants submitted that if the dividing fence was erected upon a retaining wall used also to support the respondent's concrete driveway, the cost of that retaining wall should be borne in full by the respondent and they should not have been ordered to make a contribution of 30% towards that cost. 2. The appellants also raised a jurisdictional issue based on the definition of "fence" found in section 3 of the Dividing Fences Act which is to the following effect: fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building. 1. As we have noted above, it was common ground between the respondent and the appellants that the retaining wall which was the subject of the Orders of the Senior Member would support not only the dividing fence but also act to retain a concrete driveway which the respondent intended installing immediately adjacent to the dividing fence down the side of his residence in order to give access to a triple garage at the rear. The appellants submitted that the respondent derived a benefit from the manner in which the retaining wall was specified, because it was intended to support the concrete driveway. We shall return to a consideration of the evidentiary basis for this submission later in these reasons. 2. The appellants also complained about Mr Nicholls giving evidence, stating that they were denied the opportunity of calling their own expert evidence. Whether and to what extent there is any validity in this submission depends upon the basis upon which the proceedings were to be conducted. The appellants' submissions said that during the course of the telephone hearing the Senior Member informed them that they could call their expert engineer to give evidence but they declined to call him on short notice. There is no indication that any stage the appellants were denied the opportunity of producing oral evidence from their expert engineer, Mr Loomes. 3. The appellants sought to rely on evidence which was not provided during the course of the hearing, being a report of Mr Loomes which was made after the hearing. We are not aware of any reason why the opinions expressed in this report could not have been made available to the Senior Member during the course of the hearing other than a lack of foresight on the part of the appellants as to what matters might be considered during the hearing. We have determined not to grant leave to allow this additional evidence to be relied upon, and in doing so we are conscious of the substantive reasons which we shall shortly advance as to why the appeal should be dismissed in any event. 4. Additional grounds of appeal were directed to the manner in which the Senior Member conducted the hearing, with a submission that the appellants were denied an opportunity of fully exploring their case. The statutory basis for the appeal 1. The entitlement to initiate an appeal from the decision of the Senior Member is governed by the provisions of section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) which is modified by the provisions of Schedule 4 which governs appeals from the Consumer and Commercial Division, this being the Division under which the Application of the Respondent was determined. 80 Making of internal appeals (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note— Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) 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. (3) The Appeal Panel may— (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. Part 6 of Schedule 4 of the CAT Act provides as follows Part 6 Appeals 12 Limitations on internal appeals against Division decisions (1) 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). Note— Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. 1. Accordingly, the appellants are entitled to bring these appeal proceedings as of right if it can be established that the Senior Member committed an error of law in dealing with the proceedings or in the manner in which he determined to make the Orders which are under appeal. If an error of law is not relied upon then the appellants must demonstrate that the decision was not fair and equitable or was against the weight of the evidence or that there is significant new evidence which was not reasonably available at the time of the hearing before the Senior Member. The jurisdictional issue 1. There was no dispute between the parties that the fence the subject of the Orders is to be constructed on the boundary between the properties. 2. The appellants submitted that the effect of the Orders of the Senior Member was that the dividing fence was to be built on top of a retaining wall which was also to be used to retain the concrete driveway which the respondent intended constructing immediately adjoining the fence. That is, the respondent gained a collateral advantage. 3. In his reasons for decision the Senior Member concluded on the evidence before him that the construction of a retaining wall was required by reason of the fill placed along the southern boundary, which was a reference to the differential height of the two adjoining properties. 4. It follows from the reasoning of the Senior Member that even though the respondent would have the advantage of a retaining wall with respect to the proposed driveway, nevertheless the retaining wall upon which the fence was to be erected was required because of the topography of the properties at the situation where the fence was to be erected. On this basis we conclude that the retaining wall was necessary to support the dividing fence, and that the Orders made by the Senior Member were, to this extent, within jurisdiction and power. 5. We note that the appellants will only be required to contribute 30% of the total cost of the retaining wall, to compensate them for the collateral advantage gained by the respondent. The appellant's failure to comply with Tribunal Directions for the management of the appeal proceedings 1. On 20 August 2021 a Deputy President of the Tribunal directed the appellants to lodge with the Tribunal and give to the respondent by 10 September 2021 the following material "All the evidence given to the Tribunal below which it is intended to rely Any evidence not provided to the Tribunal in making the decision under appeal, on which it is intended to seek leave to rely The Appellant' written submissions in support of the appeal and The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts" 1. The appellants have not provided any sound recording or transcript of the hearing at first instance. The appellants said that they had provided an electronic copy of the recording to the Registry but were advised that they also had to provide a transcript of the relevant parts. The appellants have not provided any recording of the first instance hearing either on CD or USB and have not provided a transcript as required. The appellants did provide a brief one page commentary on the proceedings, but this is insufficient to enable us to understand what occurred during the course of the hearing. 2. Importantly, also, the appellants have not provided a copy of the report of Mr Rafeletos dated 19 February 2021 upon which the Senior Member relied in his reasons for decision set out in [11] of his reasons which we have extracted above. Impact of these failures on the determination of the appeal 1. We have already commented that [11] of the reasons of the Senior Member are pivotal to an understanding of his reasoning process and the reasons for the Orders which he made. Accordingly, without reference to the report of Mr Rafeletos, the written and oral evidence of Mr Nicholls and the oral evidence and submissions of the parties it is not possible for us to determine whether the Senior Member erred in rejecting the case put forward by the appellants, and in particular whether he was entitled to accept the evidence of Mr Rafeletos, and to conclude that this evidence was supported by the evidence of Mr Nicholls. 2. It follows that because it is not possible for us to consider these matters, it is not possible for us to consider whether the Orders made by the Senior Member were inconsistent with the evidence or the weight of the evidence and that in some way the Senior Member fell into error when determining to make the Orders which are under appeal. 3. We have set these matters out in some detail so that the appellants might understand why it is that in these circumstances their appeal must fail. As we explained to the appellants during the course of the hearing an appeal does not of itself constitute a rehearing of the original proceedings. In order for the appellants to succeed they must persuade us that the Senior Member was in error in making the Orders, by reference to the matters which we have summarised at [17] above. We have already determined that the Senior Member was permitted as a matter of law to make Orders requiring the dividing fence to be installed on top of a retaining wall. To this extent there is no error of law in the decision of the Senior Member. 4. In the same way the failure of the appellants to provide the necessary material which would demonstrate the manner in which the proceedings were conducted by the Senior Member precludes us from considering whether there is any merit in their assertions that they were denied the opportunity to bring evidence from their engineer, and that otherwise the proceedings were conducted in a manner which was unfair to them and precluded them from properly putting their case. Without a transcript of the proceedings before the Senior Member it is impossible for us to consider these matters. 5. For the reasons which we have set out above the failure by the appellants to provide the material which they were directed to make available for the purpose of the appeal has deprived us of the opportunity of considering whether there is any merit in their appeal. On this basis the appeal must fail. Accordingly, we propose to refuse leave to appeal and to dismiss the appeal. Orders 1. Consequent upon the reasons which we have set out we make the following orders: 1. Leave to appeal is refused; 2. The appeal is dismissed. ********** 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: 26 October 2021