Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mao v Li [2022] NSWCATAP 101 Hearing dates: 22 March 2022, On the papers Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Appeal Panel Before: The Hon D A Cowdroy AO QC, Principal Member R C Titterton OAM, Senior Member Decision: 1. A hearing be dispensed with. 2. The time for filing the Notice of Appeal is extended to 4 January 2022. 3. Leave to appeal refused. 4. Appeal otherwise dismissed. Catchwords: APPEALS – where leave required – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Peter Gao (First Appellant) Kathy Gu (Second Appellant) Dong Xia Li (First Respondent) David He (Second Respondent) Representation: First Appellant (self-represented) Second Appellant (self-represented) First Respondent (self-represented) Second Respondent (self-represented) File Number(s): 2022/00002505 Publication restriction: N/A Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 November 2021 Before: J Levingston, General Member File Number(s): COM 21/41293 REASONS FOR DECISION Introduction 1. The appellants appeal from a decision of Consumer and Commercial Division of the Tribunal (Tribunal) of 30 November 2021 (Decision). 2. The appellants had sought various orders against their respondents (who are their neighbours) under the Dividing Fences Act 1991 (NSW). 3. For the following reasons, leave to appeal is refused, and the appeal is otherwise dismissed. Preliminary 1. The appeal was listed for hearing on 22 March 2022 at 10:15 am. The appellants had filed a large amount of material in support of their claims, as did the respondents. 2. After a discussion, the parties agreed that the appeal could be determined on the papers and without a hearing. As we were satisfied that the issues for determination could be adequately determined in the absence of the parties by considering the parties' material lodged with or provided to us, we have directed that a hearing be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Background 1. The background to the appeal appears in the Decision. 2. The appellants are the neighbours of the respondents. They have been in dispute for years. 3. In March 2008 (that is 14 years ago) the Local Court at Manly, on the application of the appellant Mr Peter Mao, made orders providing for the construction of a dividing fence along the common boundary with the respondents. 4. The fence was subsequently constructed but further disputes arose between the parties. 5. The matter returned to the Local Court in May 2008. The appellants alleged that the respondents had moved a survey peg 280 mm onto their land, that the fence had been built to higher height than that ordered, and that the respondents refused to pay their share of the cost of construction. 6. The Local Court made further orders for a survey of the existing position of the fence to determine whether or not it was on the boundary. The survey showed the fence was 0.25 metres on the appellant's side at the front part of the boundary and on the boundary at the back part. 7. The Tribunal's reasons for decision then set out at some length what has happened in the intervening years. 8. After setting out the parties' various contentions the Tribunal concluded: 22. On consideration of all these matters I find that the existing fences are sufficient fences as they are in reasonable condition and have been in place for 13 and about 30 years as described in the material facts. There is no evidence they are dilapidated or falling down. I am not satisfied that there is a privacy issue which has recently arisen. The adjoining lands are used for residential purposes. The height of the fences has not changed. The [appellants'] complaint that soil and plants are coming through the welded mesh fence at the rear boundary is a trivial matter which has existed for the last 30 years without the need for replacement. The complaint that the fences are not on the boundary is a position that had existed for 13 years and 30 years respectively. Nothing has changed. 23. In addition, I reject the respondent's contention that there is a difference in the surveys, which are so far as I read them, consistent, except that the top of the fences may have moved, but the evidence does not support the [appellants'] claim that they require replacing". Nature of an appeal 1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds: see s 80(2)(b). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. 2. The Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by considering the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). 3. We have undertaken that exercise, and cannot identify any question of law in the Notice of Appeal or in the materials filed by the appellants. 4. Therefore, the appellants need leave to appeal. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Grounds of Appeal 1. The appellants agitate four grounds of appeal. We summarise these as follows. 2. First, the Tribunal erred in in determining that the fence was sufficient, and the Tribunal's reasoning was applied improperly and not justly. 3. We disagree. We think that this conclusion was entirely open to the Tribunal on the evidence before it. 4. Secondly, the Tribunal failed to consider the respondent's failure to pay its half-share for the boundary fence at the time of its construction. 5. This ground relates back to 2008, and we see no substance in this ground. The appellants have had 14 years to enforce the money order made by the Local Court. 6. Thirdly, the Tribunal dismissed privacy concerns and crucial design flaws in the current dividing fence. 7. This ground should also be dismissed. We are not persuaded, in the absence of a sound recording or transcript of the proceedings before the Tribunal, that this was a live issue. 8. Fourthly, the Tribunal stated at [7.1] that "[t]he [appellants] allege the respondent moved the survey peg 280 mm onto the applicant's land". The appellants say that they never alleged that the respondent moved the survey peg 280mm. 9. In our view, this is not a competent ground of appeal. 10. The appellants say these matters found submissions that the Decision was not fair and equitable and against the weight of the evidence. They also say that there is significant new evidence now available that was not reasonably available at the time of the hearing. Consideration 1. As noted above, leave may only be granted if the Appeal Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Decision not fair and equitable 1. At page 10 of the documents attached to the Notice of Appeal the appellants set out why the Decision was not fair and equitable. These submissions are without any substance, as all they do is to go over the events in the Local Court in 2008. The appellants criticise the documents relied on by the respondents in those proceedings, recount conversations between various witnesses at the time, accuse the respondents of being unprofessional and verbally accusing them and insulting their professions, and state that respondents never paid their share of cost of the construction of the fence. 2. As to this last point, the appellants have had ample time available to them (over a decade) to enforce the money order (which is for $275) through the Local Court, and it is quite inappropriate that that matter be reagitated in the Tribunal and before the Appeal Panel. Decision against the weight of the evidence 1. In relation to the Decision being against the weight of the evidence, the appellants state the following in the Notice of Appeal (for convenience we have added the paragraph numbers [1], [2] and [3]: What evidence should the Tribunal have given more weight to? Why? [1] Court Orders from 12/03/2008. Both parties must follow court orders (See Page s 12-13), particularly Points 7-9, which the respondents did not follow. [2] Surveyor's report (Pages 4-5, 19). These reports show the accurate boundary line, and that the current fence does not lie on it, hence is insufficient. [3] Photos of Surveyor's mark on back steel mesh fence (Pages 14-15). These show that the back steel mesh fence is easy to move and is hence dangerous. 1. Paragraphs [1] and [2] again relate to the Local Court proceedings. Paragraph [1] does not provide support for an appeal in any way. As to [2], the Tribunal clearly considered the evidence before the Local Court, namely the survey of Mr Stutchbury of 23 September 2003 which showed that the fence was 0.25 metres on the appellants' side at the front part of the boundary and on the boundary at the back part. 2. As to [3], (and here we assume that the submission was put to the Tribunal although there is no corroborative evidence in the form of a sound recording or transcript of the hearing), this was clearly rejected by the Tribunal in its findings at [22] of the Decision (set out above) that the fences were in "reasonable condition", not dilapidated" or "falling down". New evidence 1. The appellants also say that new evidence is now available that was not reasonably available at the time of the hearing. This ground can be dismissed immediately, as these were the documents which were before the Local Court in 2008. As the appellants were parties to those proceedings, there is no persuasive reason why were not available for the Tribunal hearing. Should leave be granted? 1. To the extent that the appeal raises errors other than errors of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 2. Leave to appeal in relation to the alleged errors should be refused. Conclusion 1. An appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing". 2. We note that in the appellant's own materials there is a text message from the respondent to them. This message states: Mr &Mrs Mao, I understand your position on the fence as you have stated clearly previously. Any non-compliance with the boundary is due to negligence on your part as the construction of the fence was instructed and supervised by you prior to proper assessment by a surveyor. We did not have any input into the process of the fence being built. Regarding the marks, we have not previously moved or altered them. If you would like to perform a new surveyor assessment and alter the fence on the boundary to rectify your mistake we have no issue with this as long as we are kept informed of the construction plans. However as previously stated we will not pay any amount for these works. If you are not willing to pay for the new works the existing fence cannot be removed or altered. 1. In circumstances where the appellants are reagitating matters relating to 2008 Local Court proceedings brought by them in which they were successful in seeking orders for the construction of a boundary fence, the construction of which they supervised, this appeal borders on being vexatious and must be dismissed. Other 1. There is one final matter to note. 2. The Notice of Appeal was actually filed out of time. The appellants state in the Notice of Appeal that they do not require an extension of time, but that statement is incorrect. The Decision was published on 30 November 2021, and received by the appellants the following day. Pursuant to r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) appeals in decisions (other than decisions made in residential proceedings) must be filed within 28 days of the original decision: see r 25(4)(c). As the Notice of Appeal was not filed until 4 January 2022, the appeal was actually filed 6 days late. 3. In their Reply to Appeal, the respondents stated that they did not accept that the appeal had been lodged in time, but did not object to the Tribunal extending the time for lodging the appeal. 4. In those circumstances, we will extend the time for filing the Notice of Appeal to 4 January 2022. Orders 1. The Appeal Panel orders: 1. A hearing be dispensed with. 2. The time for filing the Notice of Appeal is extended to 4 January 2022. 3. Leave to appeal refused. 4. Appeal otherwise 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 Amendments 05 April 2022 - The date of decision and order was incorrectly put as 5 March 2022 rather than the correct date 5 April 2022. 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: 05 April 2022