Kerry Moskos v John Rohan Joseph [2022] NSWCATAP 276

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kerry Moskos v John Rohan Joseph [2022] NSWCATAP 276 Hearing dates: 17 May 2022 Date of orders: 23 August 2022 Decision date: 23 August 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Currie, Senior Member Decision: The appeal is dismissed. Catchwords: APPEAL-dividing fence- effect of orders on access to property-whether all circumstances considered-whether decision so unreasonable no reasonable decision would have made it. Legislation Cited: Dividing Fences Act, 1991 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jiang v Cousins [2019] NSWCATAP118 Texts Cited: None cited Category: Principal judgment Parties: Kerry Moskos (Appellant)

John Rohan Joseph (Respondent) Representation: Counsel: V Kerr SC (Appellant)

Solicitor: Burridge & Legg (Appellant) File Number(s): 2022/00077068 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 04 March 2022 Before: J Alder, General Member File Number(s): COM 21/36355

REASONS FOR DECISION 1. This appeal arises out of a dispute between neighbours concerning a dividing fence. 2. The Respondent to this appeal had commenced an application in the Tribunal for orders for the construction of a new dividing fence between the neighbours' properties. The application was successful, and the Tribunal ordered that the existing dividing metal fence be demolished and a new Colorbond sheet metal fence be constructed. The Tribunal also ordered that the parties share the cost between them with the result that an order was made that the Appellant's contribution payable to the Respondent would be $2,420. The Tribunal was exercising its jurisdiction under the Dividing Fences Act, 1991 (NSW) (the DF Act). 3. The Appellant lodged an appeal on 17 March 2022 seeking to have the Tribunal's orders set aside. Meanwhile, the Respondent had acted in accordance with the Tribunal's orders and arranged for the new fence to be constructed. 4. The Decision under appeal (which we will refer to as the Decision) describes the basic facts in [1] and [2]. Essentially the position is that on the other side of the Respondent's northern boundary is the property of the Appellant as to a portion of the boundary and as to the remaining portion there is another property owner (Mr Loe) who is not a party to this appeal and was not a party at first instance. The Appellant and Mr Loe have an easement through a shared sandstone passageway along the common boundary with the Respondent's property. That passageway gives the Appellant and Mr Loe pedestrian access to Koala Road at the eastern end and to a public reserve at the western end. The easement pathway is approximately 1 metre wide. The previous fence encroached on to the Respondent's property by 240 mm and that without the encroachment the pathway would be approximately 760 mm wide. 5. The facts and findings relevant to this appeal recorded in the Decision, are summarised in the following paragraphs.