Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mehr v Lau [2022] NSWCATAP 15 Hearing dates: 2 November 2021 Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member G Sarginson, Senior Member Decision: Appeal dismissed. Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – renewal of proceedings – restriction on renewal if the order not complied with "is or has been the subject of an internal appeal" – restriction does not apply to an order varied on an earlier appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), sch 4, cls 8, 12(1)(c) Dividing Fences Act 1991 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Lau v Mehr [2021] NSWCATAP 26 Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177 Renda v Wu [2016] NSWCATAP 238 Category: Principal judgment Parties: Mohammad Oboodi Mehr (First Appellant) Samimeh Oboodi Mehr (Second Appellant) John Lau (First Respondent) Carina Tam (Second Respondent) Representation: Mohammad Mehr (Appellants) Carina Tam (Respondents) File Number(s): 2021/00233448 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 July 2021 Before: H Woods, Senior Member File Number(s): COM 21/18800 REASONS FOR DECISION 1. The dispute has a long procedural history in the Tribunal and the Appeal Panel. 2. This appeal concerns the fencing work to be carried out (including the kind of dividing fence involved) resulting from a decision of the Tribunal dated 26 March 2019; a successful appeal from that decision (dated 16 July 2019 – Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177 ("Mehr")); a remittal to the Tribunal and later decision dated 11 August 2020 (referred to by the Appeal Panel soon to be mentioned as the "First Decision"); a further decision of the Tribunal dated 9 September 2020 (referred to by the Appeal Panel next to be mentioned as the "Second Decision"); a further appeal decision dated 9 February 2021 (which varied some of the Orders made in the First and Second Decisions, but otherwise affirmed those Orders – Lau v Mehr [2021] NSWCATAP 26 ("Lau")); and a further decision of the Tribunal (the "Renewal Decision") resulting from an application by the respondents to renew the proceedings (the "Renewal Proceedings") on the basis of non-compliance by the appellants with the Tribunal's orders (as varied by the Appeal Panel). 3. This is the appeal brought by the appellants from the Renewal Decision. 4. For the reasons that follow the appeal is dismissed. Background 1. The parties own adjoining properties in Beecroft, NSW. They came into dispute about a dividing fence between their properties and proceedings were commenced in the Tribunal to resolve this dispute. 2. A summary of the result of the Tribunal decision dated 26 March 2019 and the appeal decision in Mehr is found in the reasons of the Appeal Panel in Lau. In short, the original Tribunal ordered a dividing fence be constructed by the planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres and certain other dimensions. The Mehr Appeal Panel essentially removed the other dimensions and remitted the matter to the Tribunal to determine additional, essential matters which had not then been determined. 3. In Lau the Appeal Panel explained the background up to and including Mehr as follows: "3 The parties were involved in earlier proceedings in the Consumer & Commercial Division of the Tribunal and those proceedings resulted in a decision of the Tribunal published on 26 March 2019. Orders 1 and 2 made on 26 March 2019 made provision for the nomination of a surveyor to undertake a survey of the boundary between the parties' respective properties. Order 3 provided: "3. A sufficient fence on the boundary between (XX and XX Beecroft) for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres to the southern extent of the building envelopes on Lots 2 and 3, with a 1 metre gap every 12 metres if the extent of the building envelopes of Lots 2 and 3 exceeds 12 metres." 4 There was an appeal from that decision and the decision of the Appeal Panel was published on 16 July 2019 (see Mohammad Oboodi Mehr and Samiheh Aboodi Mehr v John Lau and Carina Tam [2019] NSWCATAP 177). Mr & Mrs Mehr were successful in their appeal. A summary of the orders made by the Appeal Panel is as follows: (1) Order 3 made by the Tribunal on 26 March 2019 was partly set aside. However, the Appeal Panel affirmed Order 3 insofar as it referred to the type of fence found to be sufficient. The Appeal Panel found: (2) A sufficient fence on the boundary between (the properties) for the purposes of the Dividing Fences Act, 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres. (3) The proceedings were "otherwise remitted" to the same member to determine: (a) the precise boundary or line on which the fencing work is to be carried out and the length of the boundary fence (order 4(a)); (b) which of the parties is to be responsible for implementing work contemplated by order 3 (order 4(b)); (c) the manner in which contributions for the fencing work are to be apportioned between the parties (order 4(c)); and (d) the time in which the fencing work is to be carried out (order 4(d)). 5 The Appeal Panel stated that Mr & Mrs Mehr had withdrawn the appeal against order 3 of the orders made on 26 March 2019 insofar as that order states what is a sufficient dividing fence. 6 It was the view of the Appeal Panel ([32] and [33]) that the Tribunal at first instance had not adequately addressed all of the matters raised by Mr & Mrs Mehr in their initiating application. The particular matters not dealt with concerned an order determining the boundary or line on which the fencing work is to be carried out, an order determining the manner in which the contributions for the fencing work are to be apportioned, an order determining which portion of the dividing fence is to be constructed or repaired by either owner and an order determining the time within which the fencing work was to be carried out. Accordingly, the Appeal Panel determined that the proceedings were to be remitted to the Consumer & Commercial Division for the purposes of determining the matters described in orders 4(a), (b), (c) and (d) which are recorded above 1. It is of some significance that in Mehr, Mr and Mrs Mehr had withdrawn the appeal against Order 3 of the orders made on 26 March 2019 insofar as that order stated what was a sufficient dividing fence – see [5] in the quote above. We shall return to that matter later in these reasons. 2. The decision in the remitted proceedings (ordered in Mehr) was subsequently called the "First Decision" and we shall maintain that description for ease of reference. 3. Essentially, as well as deciding the additional matters identified by the Appeal Panel in Mehr, the First Decision changed the fence from one constructed of native or other species of low flammability trees to one constructed of chain wire or wire mesh. 4. The Tribunal's Orders in the First Decision were: 1. That a sufficient dividing fence between (XX and XX Beecroft) is to be constructed, made of chain wire or wire mesh fence, 1.8 metres high, with 1.8 metre high steel or other metal posts securely fixed at intervals of approximately 2 metres, with the entire fence to have a minimum length of 23 metres and a maximum length 23.5 metres (depending on the topography); 2. That the works be initiated by the applicants, with the contractors chosen by the applicants (hereafter referred to as 'the contractors'), within 5 weeks of making these Orders. 3. That the fence is to be located on the boundary, as determined by the survey by Warren Eldridge and Associates dated 25 July 2019, and in accordance with the diagram on p.27 of the submission of the applicants filed on 21 August 2019. 4. That works be completed within four months of commencement. 5. That the cost of building the dividing fence is to be shared equally between the applicants and the respondents. 6. The applicants are to pay the invoice or invoices of the contractors and then seek reimbursement from the respondents. 7. Reimbursement for an invoice issued by the contractors becomes payable as to 50% by the respondents after the expiry of 28 days from the date on which it is sent to the respondents by post or email. 8. The applicants are responsible for keeping the fence in good repair. 9. Within three days of the date of these Orders, each party is to provide the other with a postal address and an email address at which that party can be contacted and, if those details change, to immediately provide updated contact details to the other party for postal and email contact. 10. Both parties have leave to approach the Tribunal to re-list the matter for any consequential or ancillary orders, on providing at least seven days' notice to the Tribunal and to the other party. 1. The Tribunal then gave a subsequent second decision (referred to in Lau as the "Second Decision"). The reasons for that Second Decision are not relevant to this appeal and need not be explained. 2. The Tribunal's Orders in the Second Decision were: 1. Three quotations for the proposed dividing fence are to be obtained by the applicants and presented to the respondents. 2. The fence is to be built to ground level. 1. The First and Second Decisions were appealed and resulted in the decision in Lau. 2. In essence, the Appeal Panel in Lau said that the Tribunal erred in changing the fence from one constructed of native or other species of low flammability trees to one constructed of chain wire or wire mesh. In relation to that matter the Lau Appeal Panel said: "9 Before we describe the basis of the appeal, we note that the First Decision appears to go beyond the terms of the remittal in that order 1 made on 11 August 2020 would appear to have had the effect of setting aside order 3 made by the Appeal Panel on 16 July 2019. We are of the view that the Tribunal at first instance was not able, given the terms of the remittal, to set aside or vary the order of the Appeal Panel. It is our view that the Tribunal at first instance did not have jurisdiction to make order 1 (ie. the order for a chain wire fence)." 1. Order 3 in Mehr, referred to above in the above quote from Lau, was in the following terms: 3. Set aside that part of Order 3 of the orders made by the Tribunal on 26 March 2019 from the words "to the southern extent" to the end of that order, so that, in substitution, Order 3 is now in terms that "A sufficient fence on the boundary between (XX and XX Beecroft) for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres." 1. The orders of the Appeal Panel in Lau were: 1 The appeal is upheld and the orders which follow are made. 2 Order 1 made in the First Decision (being the decision published on 11 August 2020) is set aside. 3 Orders 2 to 9 (inclusive) made in the First Decision are affirmed except as modified below. 4 Order 2 is amended so that the works are to be initiated within five weeks of the making of these orders. 5 Orders 1 and 2 made in the Second Decision (being the decision published on 9 September 2020) are affirmed. 6 The order made by the Appeal Panel on 9 September 2020 staying the operation of order 2 made in the First Decision is lifted. 1. The effect of Order 2 above was to restore Order 3 (as varied by the Appeal Panel in Mehr) quoted at [15] above. 2. The result of the Lau Appeal Panel's decision meant that the operative orders binding on the parties (maintaining their numbering for ease of reference, ignoring Order 6 which is no longer relevant, and with the changes from the original orders underlined) were: Order 3 (as varied in Mehr) 3. A sufficient fence on the boundary between (XX and XX Beecroft) for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres. First Decision: 2. That the works (referred to in Order 3 above) be initiated by the applicants, with the contractors chosen by the applicants (hereafter referred to as 'the contractors'), within 5 weeks of (the making of the Orders by the Appeal Panel, namely 9 February 2021). 3. That the fence is to be located on the boundary, as determined by the survey by Warren Eldridge and Associates dated 25 July 2019, and in accordance with the diagram on p.27 of the submission of the applicants filed on 21 August 2019. 4. That works be completed within four months of commencement. 5. That the cost of building the dividing fence is to be shared equally between the applicants and the respondents. 6. The applicants are to pay the invoice or invoices of the contractors and then seek reimbursement from the respondents. 7. Reimbursement for an invoice issued by the contractors becomes payable as to 50% by the respondents after the expiry of 28 days from the date on which it is sent to the respondents by post or email. 8. The applicants are responsible for keeping the fence in good repair. 9. Within three days of the date of these Orders, each party is to provide the other with a postal address and an email address at which that party can be contacted and, if those details change, to immediately provide updated contact details to the other party for postal and email contact. Second Decision 1. Three quotations for the proposed dividing fence are to be obtained by the applicants and presented to the respondents. 2. The fence is to be built to ground level. 1. It was alleged, and subsequently found so by the Tribunal in the Renewal Decision, that the appellants had not complied with the orders quoted above and the respondents brought an application to renew the proceedings. That genesis for that application was described by the Tribunal in the Renewal Decision as follows: "5 Mr Lau and Ms Tam, in summary assert that Mr and Mrs Mehr have failed to comply with the orders of the Tribunal in relation to the obtaining of quotes for a (hedge) dividing fence that had been ordered by the Tribunal. 6 Mr Lau and Ms Tam claim that Mr and Mrs Mehr have failed to comply with orders of the Tribunal because the three quotes obtained by them: (a) are for a fence that is to be over 40 metres long when according to the Applicants the Tribunal ordered that the fence was to be between 23 metres and 23.5 metres long; (b) include the construction of a raised garden bed or walls that the Applicants say were not ordered by the Tribunal. 7 Mr and Mrs Mehr, in summary claim that the effect of the Tribunal's orders is that the dividing fence was to be the length of the boundary between their property and Mr Lau and Ms Tam's property and that the construction of a raised garden bed is justified because, having regard to the definition of "fence" in the Act, it is a "support necessary for the support and maintenance of the fence". 8 The dispute arises because the cost of a hedge fence about 40 metres long rather than about 23 metres long adds in the order of $2,000.00 to $3,000.00 to the cost of the fence and the instillation of a garden bed adds in the order of $30,000.00 to the cost of the fence." 1. The Tribunal (Renewal Decision), having granted leave to the respondents to renew the proceedings, summarised the issues for it to determine as follows: "13 The primary issues for determination are: (1) having regard to the orders of the Appeal Panel in AP 20/38317 as they referred to orders of the Tribunal on 11 August 2020 and 9 September 2020, what were the orders of the Tribunal in respect of the dividing fence to be installed and the obtaining of quotes for that dividing fence; and (2) whether Mr and Mrs Mehr have failed to comply orders of the Tribunal in relation to the obtaining of quotes for the installation of a dividing fence; and (3) if that has been a failure to comply with the orders of the Tribunal, whether any other order or orders should be made, and if so, what orders." 1. In relation to those issues, the Tribunal set out what it understood to be the operative orders resulting from the earlier appeals, found that the appellants had failed to comply with the orders in relation to the obtaining of quotes, and made further orders allowing for the obtaining of quotes and various collateral matters. 2. As to the first issue identified at [13] of the Renewal Decision, the Tribunal said: "24 In my view the effect of the Appeal Panel's 9 February 2021 orders having regard to the Appeal Panel's 16 July 2019 orders, is that: (1) A sufficient dividing fence on the boundary between (XX and XX Beecroft) for the purposes of the Dividing Fences Act is a planting of native or other species of low flammability trees to form a hedge of 1.8 metres height (Order 3 of the Appeal panel made 16 July 2019 and Order 1 of the Appeal Panel made 9 February 2021); having regard to Orders 2 to 9 made in the First Decision as affirmed by the Appeal Panel's orders made 9 February 2021; (2) The works are to be initiated by [Mr and Mrs Mehr] with the contractors chosen by [Mr and Mrs Mehr] within five weeks of making these orders (as extended by the Appeal Panel); (3) The fence is to be located on the boundary as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of [Mr and Mrs Mehr] filed on 21 August 2019; (4) The works are to be completed within four months; (5) The cost of building the fence is to be shared equally between [Mr and Mrs Mehr] and [Mr Lau and Ms Tam]; (6) [Mr and Mrs Mehr] are to pay the invoice or invoices of the contractors and then seek reimbursement from [Mr Lau and Ms Tam]; (7) Reimbursement for an invoice issued by the contractors becomes payable as to 50% by [ Mr Lau and Ms Tam] after the expiry of 28 days from the date on which it is sent to [Mr Lau and Ms Tam]; (8) [Mr and Mrs Mehr] are responsible for keeping the fence in good repair; having regard orders 1 and 2 of the Second Decision and Order 5 of the Appeal Panel's orders made 9 February 2020; (9) Three quotations for the proposed dividing fence are to be obtained by [Mr and Mrs Mehr] and presented to [Mr Lau and Ms Tam] (Order 1 of the Second Decision); (10) The dividing fence is to be built to ground level (Order 2 of the Second Decision)." 1. In relation to the second issue, the Tribunal found the appellants had not complied with the Tribunal's orders. The Tribunal said: "34 The orders of the Tribunal do not provide for the construction of a raised garden bed and the Tribunal is not satisfied that support necessary for the support and maintenance of the dividing fence proposed by the Tribunal. 35 Three quotes ought to have been obtained by Mr and Mrs Mehr for the establishment of a dividing fence between (XX and XX Beecroft) by the planting of native or other species of low flammability trees to form a hedge of 1.8 metres height to ground level on the boundary [of (XX and XX Beecroft)] as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of [Mr and Mrs Mehr] filed on 21 August 2019. 36 In my view, by seeking quotes for a raised garden bed, Mr and Mrs Mehr have not obtained quotes for the fence proposed by the Tribunal and accordingly have failed to comply with the orders of the Tribunal." 1. There was an additional matter the Tribunal was required to consider in relation to the second issue, and that was the length of the dividing fence. On that matter the Tribunal said: "37 Mr Lau and Ms Tam also assert that Mr and Mr Mehr are in breach of the orders of the Tribunal because the fence was ordered to be a minimum of 23 metres and a maximum of 23.5 metres long (depending on the topography). They rely on order 1 made in the First Decision on 11 August 2020. That order was however set aside by order 2 made by the Appeal Panel on 9 February 2021. Further the length identified in order 1 of the First Decision relates to the chain wire or wire mesh fence referred to in order 1 which the (sic). The fence that has been ordered is a planting of native or other species of low flammability trees to form a hedge of 1.8 metres height. 38 The Tribunal has ordered that the fence is to be located on the boundary as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of [Mr and Mrs Mehr] filed on 21 August 2019. The fact that the quotes provide for a fence that is longer that 23.5 metres does not establish that there has been a failure to comply with the orders of the Tribunal." 1. In relation to the third issue, the orders to be made, the Tribunal said: "42 Given that the order was for Mr and Mrs Mehr to obtain the quotes, in my view it is appropriate that Mr and Mrs Mehr be given the opportunity to obtain further quotes. I also think it appropriate to make orders for the making of orders for the parties to come to agree on a quote. 43 The orders the Tribunal makes are that further to orders 1 to 5 of the Appeal Panel made 9 February and the orders made in the First Decision and the Second Decision: 1 Mr and Mrs Mehr are to obtain two quotes and Mr Lau and Ms Tam one quote from appropriately qualified contractors for the installation of a dividing fence between (XX and XX Beecroft) to be established by the planting of native or other species of low flammability trees to form a hedge of 1.8 metres height to ground level on the boundary [of properties known as (XX and XX Beecroft)] as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of [Mr and Mrs Mehr] filed on 21 August 2019 (Fencing Work). 2 The quotes are to be obtained within 28 days of the making of these orders. 3 The parties are to exchange their respective quotes within 7 days of receipt of the quotes. 4 In the event the parties cannot agree within four (4) weeks of these orders on which quote is to be accepted, the parties are to jointly write to the Tribunal and provide copies of the quotes and any submission on which either party wishes to rely in support of the quote that they propose be accepted, to the Tribunal so that a Tribunal member can determine which quote is to be accepted. 5 The works are to be initiated within 5 weeks of the parties agreeing on a quote or a Tribunal Member determining which quote is to be accepted." Grounds of Appeal 1. The appellants' grounds of appeal were expressed as follows: "1. Inconsistency between (the Renewal Decision) and the deeming effect of the Appeal Panel decision: (the Renewal Decision Tribunal) set aside decisions of the Appeal Panel and made orders inconsistent with the Appeal Panel's decisions. 2. Denial of procedural fairness and natural justice: (the Renewal Decision Tribunal) made unnecessary orders on matters that had already been decided by the Appeal Panel and did not consider the evidence before the (the Renewal Decision Tribunal), consequently denying natural justice and procedural fairness. 3. Issue of the necessary infrastructure for planting: the (the Renewal Decision Tribunal) did not suggest an alternative to the proposed support necessary for planting hedges on the boundary. 4. Lack of adequate reason: the (the Renewal Decision Tribunal) did not give an adequate reason for its decision that no infrastructure is needed for planting. 5. Failure to address matters: the (the Renewal Decision Tribunal) failed to address matters in the application for Renewal of Proceedings and thereby created confusion. 6. Lack of merit of the Renewal of Proceedings: Renewal of Proceedings is in contradiction to Clause 8(5)(b) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (hereinafter referred to as the "Act")." 1. Grounds 1 and 6, as developed in submissions, were essentially the same ground and shall be dealt with together. All grounds raised questions of law other than Ground 3. Leave to appeal is not required other than for Ground 3 for which we would have refused leave. Be that as it may it is simpler to explain, as we shall, why that ground would necessarily fail, the reasons for which are also relevant to our reasons for rejecting Ground 4. Grounds 1 and 6 1. The appellants submitted that the Renewal Decision Tribunal did not have jurisdiction and could not make Orders 2 and 5 because those orders were inconsistent with the orders made in the First Decision as varied by the Appeal Panel. 2. The appellants also submitted that the renewal proceedings could not have been brought because there had been an appeal in the past and relied on the terms of Clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). 3. We do not accept this submission. 4. Clause 8 of the NCAT Act says: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this 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. (5) This clause does not apply if— (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal. 1. Cl 8(2) says that if an order is not complied with a party may renew the proceedings. 2. Cl 8(4) says that in renewed proceedings the Tribunal may make any other appropriate order under the NCAT Act or enabling legislation as it could have made when the matter was originally determined (and there is no point taken that the orders made by the Renewal Decision Tribunal could not have been made when the matter was originally determined). 3. Of logical necessity, the new orders will be different to the original orders given that a party has refused to comply with the original orders. The new orders are a type of enforcement remedy when a party does not comply with (original) orders. 4. So much was said in Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98, a case referred to by the Renewal Decision Tribunal at [40]. In that case the Appeal Panel described the operation of Cl 8 as follows (citations omitted): "26 The Appeal Panel has held that cl 8 of Sch 4 is an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders ... 27 The renewal procedure is often used where there has been non-compliance with an order requiring work to be done or repairs to be made. In the context of orders requiring work to be done in performance of a contract, cl 8 of Sch 4 can be seen as analogous to the power that a Court with equitable jurisdiction has to make alternative orders, including awarding damages, where there has been non-compliance with an order for specific performance of a contract. ... 28 By cl 8(2), cl 8 is engaged "[i]f an order has not been complied with within the period specified by the Tribunal". In those circumstances, "the person in whose favour the order was made may renew the proceedings". 29 "When proceedings have been renewed", the Tribunal has the powers set out in cl 8(4) (a) and (b). The Tribunal may: (1) "make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined" – par (a), or (2) refuse to make such an order – par (b). 30 The present appeal does not concern the Tribunal refusing to make any order, within par (b). 31 In the light of the terms in which cl 8(4)(a) is expressed, the Tribunal can make an order within par (a) if the following criteria are satisfied: (1) the order is "other" than the order originally made; (2) the order is "appropriate"; (3) the order is one that the Tribunal "may make … under [the NCAT] Act or enabling legislation"; (4) the order is one "as [the Tribunal] could have made when the matter was originally determined"." (Emphasis added) 1. The effect of cl 8(5) is to prevent renewal proceedings where an order not complied with is suspended, is the subject of an appeal (and therefore may be set aside or varied for example) or has been varied by an Appeal Panel (and the renewal proceedings assert that the original, unvaried order, was not complied with). 2. The words "has been the subject of an appeal" in cl 8(5)(b) do not mean that the order not complied with was merely considered in an appeal. If that were correct, then a party could fail to comply with an order and then prevent the bringing of renewal proceedings (and further orders) by bringing an unsuccessful appeal from that (original) order. 3. The words "has been the subject of an appeal" mean that if an order is varied or set aside or otherwise changed by an Appeal Panel, then renewal proceedings cannot be brought in relation to non-compliance with the original order for the obvious reason that the original order is no longer operative. However, if an order is considered by an Appeal Panel and is left undisturbed, then it has not relevantly been the subject of an appeal. 4. Further, if an Appeal Panel varies an order, then that varied order (which is the operative order) is not the "subject of an internal appeal". It follows, that if the varied order is not complied with, renewal proceedings may be commenced (with leave). Ground 2 1. The appellants' submissions did not support the ground alleged – procedural unfairness – but instead advanced a different point, namely that the Tribunal erred in failing to give any weight to an expert report (that of Mr McArdle dated 11 June 2021) tendered by them. 2. The appellants cited Renda v Wu [2016] NSWCATAP 238 at [36]-[38] and [80] wherein references are made to various natural justice principles applying where a party is denied the opportunity to make submissions or call evidence. 3. The appellants submissions are misplaced. The Tribunal accepted the report into evidence but gave no weight to it for a number of reasons. Not giving weight to evidence tendered by a party is not procedural unfairness or a denial of natural justice. Those principles apply where a party is not given the opportunity to tender evidence. 4. In any event, no error is demonstrated in the Tribunal's reasons not to give any weight to the report. The Tribunal's reasons were: "32 Mr and Mrs Mehr seek to rely on a report signed by Michelle King and Jim McArdle of McArdle Ecological Arboricultural Consultancy dated 1 June 2021. The report states that Mr Mehr commissioned a screen planting assessment to provide recommendations for the instillation of boundary screening along the eastern boundary between (XX and XX Beecroft). It states that Jim McArdle, arborist attended the site for inspection and Michelle King prepared the report. The report at [1.3] states that the area proposed for planting is based on parent sandstone rock and the conditions are rocky with lack of sufficient soil for planting. The report explores two options for the proposed boundary. One being the instillation of a fence along planting. the boundary. The other being the instillation of a raised garden bed with hedge screen planting. 32(sic) The report does not indicate whether the writer was provided with the orders of the Tribunal or whether the writer was aware that the report was to be provided to the Tribunal. Nor does the report contain an acknowledgement of the expert witness code of conduct. A further difficulty for Mr and Mrs Mehr is that both the First Decision at paragraph [29] and the Appeal Panel's decision of 9 February 2021 at [11] (9) refer to a raised garden bed having been proposed by Mr and Mrs Mehr. No order for a raised garden bed was made. For those reasons the Tribunal does not place any weight on the report." 1. As is clear from Order 3 of Mehr, the fence ordered was one constructed of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres, not that construction together with a garden bed (the cost of which was estimated at approximately $30,000). Thus, the report was irrelevant. 2. We further note, as the Appeal Panel noted in Mehr at [9], that in that appeal the Mehrs had withdrawn the appeal against Order 3 insofar as the Order stated what a sufficient dividing fence was to be. Having done so, it was too late for the Mehrs to attempt to argue that the fence should be differently constructed in the Renewal Proceedings. Ground 3 1. What we have just said is also the answer to ground 3 in which the appellants submitted that the Tribunal erred in the following finding: "34 The orders of the Tribunal do not provide for the construction of a raised garden bed and the Tribunal is not satisfied that support necessary for the support and maintenance of the dividing fence proposed by the Tribunal." 1. The appellants submitted that that finding is "confusing and hard to understand". We disagree. The passage is, in our view, clear. 2. The appellants refer to the definition of "fence" in the Dividing Fences Act 1991 (NSW), which definition includes "any foundation or support necessary for the support and maintenance of the fence". 3. Whilst that submission is correct, the fact that a "fence" includes any foundation or support does not mean that the appellants may now argue for a particular, and expensive method of foundation and support when that was not previously raised by the Mehrs and had not been included in Order 3. 4. Further, that option of a raised garden bed is not essential to the success of the fence. That is, the McArdle report does not say that the fence described in Order 3 must have a raised garden bed for foundation or support or the fence will fail. Rather, the McArdle report presents two options for the fence, the raised garden bed being part of Option 2. But McArdle also presented an Option 1, which was, in essence, the fence described in Order 3 (but without a garden bed for foundation or support). 5. We note that the appellants sought to tender on the appeal a further expert report by Catriona Mackenzie dated 9 September 2021. We rejected the tender of this report because it was not evidence that was not reasonably available to the appellants at the time of the hearing of the Renewal Proceedings – see cl 12(1)(c) of the NCAT Act. "(N)ot reasonably available" in this context means that the report was not, on an objective test, able to be obtained by the appellants prior to that hearing – Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]-[24]. Ground 4 1. The appellants submitted that, at [34] of the Renewal Decision, the Tribunal did not provide adequate reasons for the finding that it was not satisfied that the raised garden bed was necessary for the support and maintenance of the fence described in Order 3. 2. The appellants submitted that the Tribunal failed to give any reasons why support was not necessary for the Order 3 fence. The simple answer to this is that there was no evidence tendered by the appellants which supported the proposition put. That is, the McArdle report not only did not say that a garden bed was necessary as foundation or support for the Order 3 fence, it also implied one was not necessary because it included Option 1 for the fence and such option did not include any garden bed for foundation or support. 3. The appellants submitted the Tribunal did not consider photographic evidence and the survey plan which, in their submission, demonstrated the difference in levels between the two properties, and a rock surface with no soil. 4. The answer to that submission is the same as the answer given to Ground 3 above. Ground 5 1. The appellants submitted that the Tribunal failed to address a relevant matter in the Renewal Proceedings, namely the length of the fence. In short, the appellants submit the fence should be 41.55 m long, whilst the respondents say it should be 23.5 m long. 2. The order of the Tribunal was that the fence should form a hedge on the boundary of the parties' properties as determined by the survey of Warren Eldridge & Associates dated 25 July 2019 and in accordance with the diagram on page 27 of the submission of the appellants filed on 21 August 2019. 3. The boundary (as shown in the survey) is about 41.55 m long, but the diagram on p.27 of the submission of the appellants filed on 21 August 2019 shows a fence of about 23.5 m long, the balance of the length of the boundary being within a Restricted Development Area. 4. Be that as it may, the order of the Tribunal is clear. The fence should be on the boundary as indicated in the Eldridge survey, but be the length as shown in the diagram on p.27 of the submission of the appellants filed on 21 August 2019 i.e. approximately 23.5 m long. Orders 1. We make the following orders: 1. Appeal 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: 20 January 2022