Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mayer v Bangar [2022] NSWCATAP 163 Hearing dates: 10 May 2022 Date of orders: 17 May 2022 Decision date: 17 May 2022 Jurisdiction: Appeal Panel Before: G Furness SC, Senior Member G Burton SC, Senior Member Decision: The Appeal is dismissed. Catchwords: DIVIDING FENCES ACT – negligent damage to dividing fence – order that each pay 50% Legislation Cited: Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2104] NSWCATAP 69 Category: Principal judgment Parties: Michael Mayer (Appellant) Sudesh Bangar and Amar Singh (Respondents) Representation: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2022/36974 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 18 January 2022 Before: J Alder (General Member) File Number(s): COM 21/38639 REASONS FOR DECISION Introduction 1. The Appellant, Michael Mayer and the Respondents, Sudesh Bangar and Amar Singh, own adjoining properties in Kellyville NSW and share a common boundary. About two years ago, the Respondents damaged the then 15 year old existing 1.8m high timber boundary fence when constructing a granny flat on their land. 2. On 13 September 2021, the Appellant applied to the Tribunal for an order under the Dividing Fences Act 1991 (the Act) that fencing work be carried out, describing the fencing work as removing the existing fence because it was damaged and dangerous and installing a new Colourbond fence 41 metres long and 2.4 metres high. 3. On 8 February 2022, the Appellant appealed from the decision of the Tribunal that the Appellant and the Respondents each pay 50% to replace the existing timber fence. The ground of the appeal is that it is unreasonable to be asked to pay for anything as the Appellant's privacy was affected by the construction of the granny flat and the Respondents had negligently damaged the existing fence. The Dividing Fences Act 1991 1. The relevant provisions of the Act are as follows 4 Determination as to "sufficient dividing fence" In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following: (a) the existing dividing fence (if any), (b) the purposes for which the adjoining lands are used or intended to be used, (c) the privacy or other concerns of the adjoining land owners, (d) the kind of dividing fence usual in the locality, (e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, (f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated, (g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act. 6 General principle—liability for fencing work (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands. 7 Contribution as between adjoining owners—generally (1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. (3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose. 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. The decision 1. The Appellant's application was heard by the Tribunal on 23 November 2021. The Appellant and Mr Singh, representing the Respondents, each gave oral evidence. The Appellant relied on 29 colour photographs, a quotation to replace the fence dated 25 May 2021 and a fencing notice addressed to the Respondents. The Respondents relied on nine photographs. 2. It was common ground that the Respondents had damaged the fence two years ago when constructing a granny flat on their property. It was also common ground that the Respondents had since constructed a 2.4m high bamboo fence on their property adjacent to the existing dividing fence, it was said for privacy. 3. In its decision dated 18 January 2022, the Tribunal set out or summarised the relevant provisions: ss 4, 6, 7 and 8 at [10]-[14]. 4. As to s 4(a), the Tribunal noted that the fence was 17 years old. The Tribunal recorded the Respondents' evidence by Mr Singh that he restored the fence to its condition before it was damaged and that it was now repaired, properly maintained and painted. His evidence was that any cracks and loose joints were due to the Appellant's poor maintenance. As the Respondents had built another fence on their own land, the Respondents said they should not have to contribute to a further fence: at [18]-[20]. 5. The Tribunal recorded the Appellant's evidence that the Respondents tried to fix the fence with nails but the nails protruded onto the Appellant's side: at [17]. 6. As to s 4(b) and (c), the Tribunal found that both properties were used for residential purposes and that the granny flat was leased to a family of five. The Tribunal note that the Appellant desired a 2.4m fence as he has lost his privacy. The Respondents sought a standard height of 1.8m: at [22]-[24]. 7. As to s 4(d) the parties agreed to a Colourbond fence and no submissions were made as to s 4(e), (f) and (g): at [25]-]26]. 8. The Tribunal found that the existing dividing fence on the boundary line was not a sufficient dividing fence and required replacement. The Tribunal relied on the photographs showing broken rails, protruding nails, gaps, makeshift and insufficient repairs and a fence that leaned in part together with the age of the fence: at [27]. 9. The Tribunal considered that 1.8 metres height was sufficient for privacy and appropriate for the area and noted that the Appellant had not sought approval for a non-standard fence of 2.4m: at [28]. 10. In relation to s 8 the Tribunal was not of the view that the Respondents deliberated damaged the existing fence but that they negligently damaged it. The Respondents were not absolved from liability because they built another fence: at [29]. 11. The Tribunal observed that the Tribunal could order the Respondents to pay "up to" the whole cost of the fencing work required to restore the fence: "However, I will not order the Respondents to pay 100% in this instance. Although I have seen no photos of the fence prior to it being damaged by the Respondents' bobcat, I have taken into account that the fence was old in any event.": at [29] 12. On 18 January 2022, the Tribunal ordered that the existing dividing timber fence be demolished and removed at the joint cost of the parties, that the new fence was to be 31 metres (the same as the existing dividing fence length) and 1.8m high, of Australian Colourbonded sheet metal and that the Respondents' contribution to the cost of the fencing work was limited to one half of the cost of supplying and erecting the fence. 13. The Tribunal made a number of general orders in relation to quotations. Relevantly for this appeal, the Tribunal ordered as follows: "(6) the Appellant must pay the cost of the fencing work to the fencing contractor and will be the only party to give instructions to the fencing contractor in relation to the carrying out of the fencing work. (12) the Respondents are to pay to the applicant their contribution, as ordered in these orders, within seven days of completion of the fencing work, without deduction or allowance." The Notice of Appeal 1. The Appellant challenged Orders 6 and 12 set out above. 2. The ground of appeal was that it was unreasonable to be asked to pay for anything as his privacy was affected by the construction of the granny flat and that the Respondents had negligently damaged the existing fence. 3. The Appellant sought an order that the fence should be higher than 1.8m for privacy reasons and that the Respondents be responsible for the costs of the new fence. 4. The Appellant submitted that the Tribunal should have given weight to ss 6, 7 and 8 of the Act. The Reply to the Appeal 1. The Respondents relevantly replied that he agreed with the decision and would pay 50% of the fencing work. The hearing of the Appeal 1. Each party was self-represented. The Appellant relied on the photos before the Tribunal below and new evidence of a video of water coming under the existing fence from the Respondents' land, a copy of his daughter's licence and a quotation to replace the fence. The Appellant provided the recording of the hearing before the Tribunal below, but did not require the Appeal Panel to listen to it. 2. The Respondents relied on the photographs before the Tribunal below and additional photos of the bamboo fence and associated drainage. 3. During oral submissions, the Appellant withdrew his claim that the fence should be higher than 1.8m or longer than 31 m. Otherwise the oral submissions were consistent with the Notice of and Reply to the Appeal. The scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2104] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which includes a failure to provide proper reasons and whether the decision was so unreasonable that no reasonable decision-maker would make it. 3. The circumstances in which the Appeal Panel may grant leave to appeal on other grounds from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence had arisen. 1. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, 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. Consideration 1. There is no issue between the parties as to the fact of damage to the fence, the responsibility of the Respondents for that damage, that 1.8m is an acceptable height and the type of replacement fence. The Respondents have not taken issue with the finding that the Respondents acted negligently in damaging the fence. 2. The only remaining issue in dispute is, having found that the Respondents negligently damaged the fence, the Tribunal's decision to order the Respondents to pay 50% of the cost of the new fence. 3. There is no doubt that the Tribunal had the power under s 8 to order that the Respondents pay "up to" the whole cost. 4. Applying Cominos, we consider that, from the Appellant's grounds of appeal, the evidence relied on and the Decision, the questions of law which might arise are, first, a failure to provide proper reasons for that decision and, secondly, whether that decision was so unreasonable that no reasonable decision-maker would make it. 5. The reason given for awarding 50% was that the fence was old "in any event", noting that there was no evidence before the Tribunal as to the state of the fence before it was damaged by the Respondents. It was a matter for the Tribunal to consider the weight the Tribunal gave to the negligent act in determining the relative contributions. While the reasons did not articulate in detail how the Tribunal weighed the evidence by the Appellant that the repair created a very dangerous fence with the evidence by the Respondents that they restored the fence to its condition before the damage, it is clear that the Tribunal determined that the age of the fence was a decisive factor. Accordingly, the age of the fence was the reason for deciding that each party pay 50%. 6. What constitutes adequate reasons in a Tribunal was set out in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [76-77] 76. What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77. These principles include the following: 1. "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); 2. the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; 3. the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; 4. the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; 5. there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. 1. In our opinion, when the reasons are read fairly and as a whole, they are adequate. 2. Turning then to whether it can be said that that finding was so unreasonable that no reasonable decision maker could make it, the finding made was based on the common ground that the fence was 17 years old. That cannot be said to be an unreasonable decision. 3. Accordingly, we find that the Tribunal made no error of law. 4. We are of the opinion that consideration of the evidence as a whole and the Decision discloses that the Tribunal made no error of fact or other error. 5. We therefore do not grant leave to appeal on any other ground. 1. We dismiss the appeal. ********** 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 17 May 2022 - No amendments made 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: 17 May 2022