Nayar v Uren [2024] NSWCATAP 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nayar v Uren [2024] NSWCATAP 47 Hearing dates: 14 March 2024 Date of orders: 28 March 2024 Decision date: 28 March 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Sarginson, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed except to the extent of making the orders below. (3) The Appellant is to cause the existing timber fence being the boundary fence between (the addresses of the Appellant and Respondent involving the fence the subject of the appeal) to be demolished and removed from a point adjacent to the storeroom at the Respondent's property to the front boundary (the fencing work location). (4) The Appellant is to cause the collapsed stone retaining wall at the fencing work location (of approximately 400 mm in depth and 8.5 metres long) to be removed. (5) The Appellant is to cause a 1.8-metre-high timber fence to match the existing fences to be supplied and installed at the fencing work location. (6) The work referred to in these orders is to be commenced by 1 May 2024. (7) The work referred to in these orders is to be completed by 1 June 2024. (8) The cost of the fencing works referred to in these orders is to be borne solely by the Appellant. (9) The fencing work the subject of these orders is to be undertaken by a licensed fencing contractor or a licensed builder. (10) The order staying the operation of the orders made at first instance is lifted. Catchwords: Appeal – dividing fence – procedural fairness occasioned by absence of Appellant at first instance hearing – whether order was fair and equitable – order requiring the Appellant to pay the full cost of the new fence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Dividing Fences Act 1991 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Kline v NSW Land and Housing Corporation [2014] NSWCATAP 41 Minifie v Maxwell [2020] NSWCATAP 30 Merrick v Hines [2021] NSWCATAP 108 Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Sommers International Pty Ltd v Stanthorpe Carlton United Football Club Inc [2020] NSWCATAP 106 Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250 Texts Cited: Not applicable Category: Principal judgment Parties: Manoj Nayar (Appellant) Mark Uren (Respondent) Representation: Appellant (self-represented Respondent (self-represented) File Number(s): 2023/00451126 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 16 November 2023 Before: P Moran, Senior Member File Number(s): COM 23/35196