Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dimitropoulos v Wang and Ding [2023] NSWCATCD 170 Hearing dates: 18 September 2023 Date of orders: 05 December 2023 Decision date: 05 December 2023 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: The Tribunal orders: (1) The respondents, Whitney Hong Wang and Yunhao Ding must pay the applicant, Spiro Dimitropoulos, the amount of $1,386.00. (2) Any amount payable under Order (1) is to applied against any amount received by the applicant, Spiro Dimitropoulos, under any garnishee order against the respondent, Whitney Hong Wang and Yunhao Ding. (3) Any difference in the amount ordered in Order (1) and any amount paid under the garnishee order referred to in Order (2) for the debt recovered (not including costs and interest) must be paid by the respondents, Whitney Hong Wang and Yunhao Ding. (4) There is no order as to costs. Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — Dividing Fences - Contribution to costs-money order under Dividing Fences Act 1991 Legislation Cited: Dividing Fences Act 1991 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Purcell v Chadwick [2018] NSWCATAP 250 Nasr v Kassiri [2020] NSWCATCD 12 Jiang v Cousins [2019] NSWCATAP 118 Wang v Dimitropoulos [2023] NSWCATAP 137 Texts Cited: None Category: Principal judgment Parties: Spiro Dimitropoulos (Applicant) Whitney Hong Wang and Yunhao Ding (Respondents) Representation: Applicant - self represented litigant Respondents - self represented litigants File Number(s): 2023/00392261 (previously COM 23/25067) Publication restriction: Unrestricted REASONS FOR DECISION APPLICATION 1. This is an application remitted by the Appeal Panel back to the Consumer and Commercial Division of the Tribunal for reconsideration in accordance with the reasons given by the Appeal Panel and otherwise according to law ("Remitted Proceedings"). 2. The original substantive application (COM 22/22892) was made by the applicant seeking orders under the Dividing Fences Act 1991 (NSW) ("DFA") regarding fencing works to the front and rear common boundary between the parties adjoining lands ("Original Proceedings"). 3. Orders were made by the Tribunal regarding the Original Proceedings on 31 August 2022 ("Original Orders"): 1. Applicant and respondents to share the cost of the front fence with the panels to be a different colour on each side – Woodland Grey on the applicant's side, the respondents 'choice on their side – with posts to be Woodland Grey and the tracks to be the same colour as that chosen by the respondents. 2. The respondents are to pay for the repair of the rear fence in a good and workmanlike manner, to match the existing, with the posts to be set in concrete to the specification of the manufacturer and allowed to cure for the period specified by the manufacturer and with all panels undented and erected without gaps. 1. The applicant carried out the fencing work in December 2022. 2. Those orders were not the subject of appeal. 3. Renewal proceedings were commenced by the applicant (COM22/56134) and at a conciliation hearing of the renewal proceedings on 23 January 2023 orders were made by the Tribunal ("Renewal Proceedings"): The Respondent is to comply with the Orders made on 31 August 2022 by paying the Respondent the sum of $858 being the sum of $330 in respect to order 1 and $528 in respect to order 2 made on 31 August 2022. 1. The respondent made a request to the Tribunal for a written statement of reasons on 24 January 2023. 2. On 25 January 2023 the Tribunal issued a further Notice of Order together with a written statement of reasons ("Renewal Decision"). The Notice of Order states: The Order made on 23 January 2023 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 to reflect the following corrected order: The Respondent is to comply with the orders made on 31 August 2022 by paying the Applicant the sum of $1386 made up of the sum of $330 in respect to order 1 and $1056 in respect to order 2 made on 31 August 2022 1. The respondents appealed the Renewal Decision on 21 February 2023. 2. The Appeal Panel allowed the appeal by the respondents and directed the Tribunal to consider the following in the Remitted Proceedings, noting that the direction of the Appeal Panel refers to the applicants in the appeal, being the respondents in these Remitted Proceedings and the respondent in the appeal being the applicant in these Remitted Proceedings: 1. Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act. 2. If so, what is the proper construction of the Original Orders including: 1. whether the Original Orders require a party (and if so which party) to carry out fencing work; 2. the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence; 3. the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required; 4. whether the fencing works were required to be carried out in accordance with a particular quote or invoice; 1. When did the "required time" for compliance with the Original Orders expire? 2. Whether the appellants failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act. 3. Whether the work carried out by the respondent is the fencing work determined by the Original Orders. 4. Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover. JURISDICTION and LEGISLATION 1. S 28 of the Civil and Administrative Tribunal Act 2013 ("CATA") provides that the NSW Civil and Administrative Tribunal ("Tribunal") has jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. 2. S 13 of the Dividing Fences Act 1991 ("DFA") confers jurisdiction on NCAT to hear and determine any matter arising under the DFA. 3. The general principles of the DFA are set out in s 6, which states: (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. 1. S 3 of the Act defines the terms, relevantly, as: adjoining owners means the owners of land on either side of a common boundary owner includes: (a) any person who jointly or severally (whether at law or in equity) is entitled to land for any estate of freehold in possession or who receives or is entitled to receive any rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and (b) any person who is the holder of a lease (the unexpired term of which is not less than 5 years) when a notice to carry out fencing work in accordance with this Act is given by, or served on, that person. fencing work means: (a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and (b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose, and includes: (c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and (d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence. 1. In determining an application in proceedings before the Tribunal S 4 of the DFA requires the Tribunal to consider the standard for a sufficient dividing fence: 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. 1. If an owner requires an adjoining owner to contribute to the carrying out of fencing work, they may serve a notice in writing to that effect on the adjoining owner. S 11 of the DFA prescribes the content of such a notice: 11. Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. (5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: (a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or (b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal. 1. S 12 of the DFA provides that if the adjoining owners do not agree to the proposed fencing work within one month after service of a notice under section 11 then either party may make application to the Tribunal (or the Local Court) for orders: 12. Procedure when agreement not reached (1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work). (2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out. 1. S 14 of the Act sets out the orders that can be made in respect of an application for fencing work: 14. Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on critical habitat within the meaning of the Threatened Species Conservation Act 1995 without the consent of the Director-General of National Parks and Wildlife. (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act. Procedural 1. On 14 June 2023 Deputy President Harrowell made directions for the parties to the Remitted Proceedings to file and serve the evidence they rely upon at the hearing. 2. The applicant filed and served the evidence he relies upon on 12 July 2023. The respondents filed and served the evidence they rely upon on 2 August 2023. The applicant filed and served the evidence in reply that he relies upon on 16 August 2023. 3. Included in Deputy President Harrowell's directions is Order 8 which provides: 8. The Tribunal notes the issues for determination may include: a. Whether the orders made by the Tribunal in application COM22/22892 on 31 August 2022 (being orders dated 7 September 2022) (Original Orders) were sufficiently certain as to: (i) scope of the fencing work; (ii) location of the fencing work; (iii) who was entitled to carry out the fencing works; (iv) what was the date by which any works were required to be carried out; (v) the circumstances in which the respondents would be liable to pay the applicant the cost of any fencing work performed by the applicant. b. For the purpose of a., whether, to the extent of ambiguity, the transcript and other evidence provided to the Tribunal in application COM 22/22892 is admissible for the purpose of construing the Original Orders and what is the proper construction of those orders. c. Whether, to the extent the respondents were required to perform fencing work pursuant to the Original Orders, they failed to do so, or failed to do so in the required time. d. To the extent the applicant was entitled to perform any fencing work, whether he did so in accordance with the Original Orders and/or the works done were of the required standard and/or in the correct location required(d) by those orders or otherwise by the Dividing Fences Act (1991) (NSW). In this regard the respondents contend the works done by the applicant were not on the boundary between the properties. e. Whether a money order should be made in favour of the applicant in consequences of the Original Orders and, if so, for what amount. In this regard, there is an issue as to whether an order should be made under s 15(1)(b) for the payment of money. f. Whether any issues identified by the Appeal Panel in its reasons for decision dated 23 May 2023 (Wang v Dimitropoulos [2023] NSWCATAP 137) (Appeal Panel) otherwise entitle or disentitle the applicant to the relief sought, g. Whether, having registered and enforced by way of garnishee the order of the Tribunal (Money Order) made on 23 January 2023 (as subsequently amended) in application COM 22/56134 (the second proceedings) for payment of money, the applicant should repay to the respondents the money received by reason of the Appeal Decision setting aside the Money Order and having regard to any determination in the present proceedings, 1. At the hearing on 18 September 2023, the respondent handed up to the Tribunal their outline of submissions. 2. The Tribunal reserved its decision and directed the applicant to file and serve written submissions in response to respondents' submissions by 2 October 2023. Further the Tribunal made directions regarding any application for costs and such application being determined on the papers. 3. The respondents made submissions regarding their submissions for costs on 2 October 2023. 4. The applicant made submissions in response to the respondents' submissions handed up at the hearing on 4 October 2023. Although filed later than directed by the Tribunal, the Tribunal will allow the submissions to be relied upon by the applicant and extends the time for filing pursuant to section 41 of CATA, the extension of time being only for a period of 2 days and such submissions are required to give effect to the finalisation this extended dispute between the parties. Background 1. The applicant is the owner of 11 High Street Kogarah ("applicant's land"). 2. The respondents are the owners of 9 High Street Kogarah ("respondents' land"). 3. The applicant's and the respondents' lands adjoin, and they share a common boundary. 4. The dispute relates to a length of dividing fence near the street frontage of both lands to High Street being about 3.4 metres in length ("front dividing fence") and another length of dividing fence towards the rear of the common boundary about 8.2 metres in length ("rear dividing fence"). 5. The rear end fence along the common boundary there was a colorbond dividing fence. 6. During a storm on 8 March 2022 the respondents' storm water tank fell and a section of the rear end of the dividing fence was damaged. 7. The damaged section of the rear dividing fence was repaired by the respondents' contractor and the contractor was paid for the repairs by the respondents ("Rectification Works"). 8. The Rectification Works were carried out by David Feng of Ausway Building Solutions Pty Ltd. 9. The applicant claimed that the Rectification Works were carried out reusing damaged fencing materials, including damaged panels, damaged posts and tracks (rails). The Rectification Works resulted in existing panels of the dividing fence being loose, with panels, posts and tracks bent and damaged. The posts were alleged to have been installed contrary to the Bluesteel/Colorbond installation guidelines. The condition of the rectified fence was inferior to the fence before the water tank fell against it and damaged it. 10. On or about 13 April 2022 the applicant served a Notice to Carry Out Fencing Work pursuant to s 11 of the Dividing Fences Act 1991 (NSW) ("Fencing Notice"). 11. The Fencing Notice proposed: 1. Properties affected: A 9 High Street, Kogarah NSW 2217, an investment property owned by Whitney Hong Wang and Yunhaao Ding. B 11 High Street, Kogarah NSW 2217, owner occupied property owned by Spiro Dimitropoulos and Anna Dimitropoulos. 2. Position of fencing work: (a) Dividing fence between 9 High Street Kogarah and 11 High Street Kogarah (towards the front of the property); (b) Dividing fence between 9 High Street Kogarah and 11 High Street Kogarah (towards the rear of the property) 3. Fencing work proposed to be carried out (include length, height and type of materials): Front end fence works: Length of fence: 3.4 metres; Height of fence: 1200mm; Type of Fence: Colorbond-slate grey Cost: $462.00 – The front end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $231.00 to Sydney Fencing and Gates on the date of completion and Spiro Dimitropoulos and Anna Dimitropoulos to pay $231.00 to the fencing contractor on the date of completion. Rear end fence works: Length of fence: 8.2 metres; Height of fence: 1800mm; Type of Fence: Colorbond-slate grey Cost: $1,386.00 – The rear end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $1,386.00 to Sydney Fencing and Gates on the date of completion. 1. On or about 28 April 2022 the respondents replied to the applicant Fencing Notice that they agreed in principle to install the proposed front end dividing fence except that the colour of the fence should be to match the colour of each parties existing fence. The colours being different on each side of the fence. They also requested "a couple more quotes by 13 May 2022". The respondents' response to the rear end fence was that they agreed to have the rear fence repaired and that the works carried out by their contractor satisfied the "provision of sufficient dividing fence" and they asked the applicant to contribute $600 towards the cost of the repair work relying on s 7(1) of the DFA, that adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work. 2. There being no agreement between the parties for the carrying out of the fencing work, the applicant filed their application with the Tribunal on 24 May 2022 and that application was allocated a file number by the Tribunal of COM 22/22892. 3. At the hearing of COM 22/22892 on 31 August 2022, the Tribunal made orders: 1. Applicant and respondents to share the cost of the front fence with the panels to be a different colour on each side -Woodland Grey on the applicant's side, the respondents 'choice on their side – with posts to be Woodland Grey and the tracks to be the same colour as that chosen by the respondents. 2. The respondents are to pay for the repair of the rear fence in a good and workmanlike manner, to match the existing, with the posts to be set in concrete to the specification of the manufacturer and allowed to cure for the period specified by the manufacturer and with all panels undented and erected without gaps. 1. Those orders were not appealed, and they remain in force. In these Remitted Proceedings the Tribunal will consider whether those orders should be varied. 2. The parties have filed and served submissions regarding these Remitted Proceedings as directed by the Tribunal. 3. The parties, particularly the respondents, have applied a broad brush approach to their submissions seeking to reopen the findings of fact by the Tribunal in the Original Proceedings. 4. These are remitted proceedings, not renewal proceedings. 5. The Tribunal will not reopen the evidence relied upon when making the Original Orders, to do so would be tantamount to this presently constituted Tribunal exercising the internal appeal function of the Tribunal for which it has no jurisdiction. Submissions Applicant's submissions 1. The applicant relies on submissions filed on: 1. 12 June 2023, 2. 16 August 2023, 3. 4 October 2023, 4. 16 October 2023 Respondents' submissions 1. The respondents rely on submissions filed on: 1. 2 August 2023, 2. 3 October 2023, 3. 18 September 2023 (handed up at hearing) 4. 3 October 2023, 5. 16 October 2023. 1. The Tribunal has read and considered the submissions. those parts of the submissions that are relevant to the real issues between the parties. 2. The parties' submissions cavil unnecessarily and are repetitive and convoluted. The Tribunal will consider those parts of the submissions that are relevant to the real issues between the parties. Consideration 1. The consideration of the Remitted Proceedings are informed by the directions of the Appeal Panel and of Deputy President Harrowell. That is, the questions to considered and answered are as follows: 1. Appeal Panel: 1. Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act. 2. If so, what is the proper construction of the Original Orders including: 1. whether the Original Orders require a party (and if so which party) to carry out fencing work; 2. the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence; 3. the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required; 4. whether the fencing works were required to be carried out in accordance with a particular quote or invoice; 1. When did the "required time" for compliance with the Original Orders expire? 2. Whether the appellants failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act. 3. Whether the work carried out by the respondent is the fencing work determined by the Original Orders. 4. Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover. 1. Direction of Deputy President Harrowell: 1. The Tribunal notes the issues for determination may include: 1. Whether the orders made by the Tribunal in application COM 22/22892 on 31 August 2022 (being orders dated 7 September 2022) (Original Orders) were sufficiently certain as to: 2. scope of the fencing work; 3. location of the fencing work; 4. who was entitled to carry out the fencing works; 5. what was the date by which any works were required to be carried out; 6. the circumstances in which the respondents would be liable to pay the applicant the cost of any fencing work performed by the applicant. 1. For the purpose of a., whether, to the extent of ambiguity, the transcript and other evidence provided to the Tribunal in application COM 22/22892 is admissible for the purpose of construing the Original Orders and what is the proper construction of those orders. 2. Whether, to the extent the respondents were required to perform fencing work pursuant to the Original Orders, they failed to do so, or failed to do so in the required time. 3. To the extent the applicant was entitled to perform any fencing work, whether he did so in accordance with the Original Orders and/or the works done were of the required standard and/or in the correct location required(d) by those orders or otherwise by the Dividing Fences Act (1991) (NSW). In this regard the respondents contend the works done by the applicant were not on the boundary between the properties. 4. Whether a money order should be made in favour of the applicant in consequences of the Original Orders and, if so, for what amount. In this regard, there is an issue as to whether an order should be made under s 15(1)(b) for the payment of money. 5. Whether any issues identified by the Appeal Panel in its reasons for decision dated 23 May 2023 (Wang v Dimitropoulos [2023] NSWCATAP 137) (Appeal Panel) otherwise entitle or disentitle the applicant to the relief sought, 6. Whether, having registered and enforced by way of garnishee the order of the Tribunal (Money Order) made on 23 January 2023 (as subsequently amended) in application COM 22/56134 (the second proceedings) for payment of money, the applicant should repay to the respondents the money received by reason of the Appeal Decision setting aside the Money Order and having regard to any determination in the present proceedings, 1. Any other orders this presently constituted deems appropriate according to law. 1. The Tribunal now makes its determination in regard to each of the remitted issues and the issues directed to be determined., and if necessary, any other issues regarded by the presently constituted Tribunal as relevant. Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act. 1. The remittal of the proceedings by the Appeal Panel is for reconsideration of the applicant's renewal application as an application for a money order and whether the Tribunal can exercise its discretion to make a money order for the amount agreed or ordered to be paid for, or, if the agreement does not specify the amount to be paid, half the cost of the fencing work carried out under section 15(1)(b) of the DFA. 2. The Appeal Panel has found that the Tribunal erred in making the Renewal Decision and upheld the respondents appeal of the Renewal Decision. The Appeal Panel at [21] – [26] of its decision said that it understood that the erroneously brought renewal application "was in substance a claim for recovery of monies under the DFA" and that it would have been consistent with the provisions of the DFA for the Tribunal to treat the application in this way. 3. In an application for a money order under the DFA, the Tribunal's discretion may only be exercised if: 1. An agreement was reached by adjoining owners or an order was made by the Tribunal for the payment of money, 2. An adjoining owner bound by the agreement or order failed to perform his or her part of the agreement or to comply with the order within the required time (which is three months from the making of the agreement or order in circumstances where no time limit for performance of the fencing work is specified), and, 3. The other adjoining owner has carried out the fencing work as agreed or as determined by the order. 1. The Tribunal has considered the transcript of the hearing of the Renewal Application on 31 August 2023 as included in the submission of the applicant on 12 July 2023. 2. Regarding the issue with the front end of the dividing fence, after discussions between the applicant, respondent and the Member about the price and different colour colorbond for each side of the proposed fence for the front end of the dividing fence, the transcript of 31 August 2023 is: 05.08 Mr Dimitropoulos "Yeah, um, its $662, it might be a bit more because the quote is 8th April, and obviously as you are aware, contractor's prices have gone through the roof as you might have heard through the media, so it might be a bit more, might be close to $700.00, I don't know because I don't have a recent quote". … 05.42 Member "What are these different colours, what are they called?" 05.45 Mr Dimitropoulos "So mine is colorbond grey, sorry, Woodland Grey. I'm not sure what his colour is called" 05.55 Member "Do you propose the posts be Woodland Grey?" 05.57 Mr Dimitropoulos "I proposes the posts be Woodland Grey and the Tracks be the colour he chooses". 06.04 Member "Mr Wang, what is the colour of your fence to be?" 06.09 Mr Wang "I don't know the name of the colour, but it will be (inaudible) as the fence will matching existing which means colour on my side will go with my side". 06.21 Member "But what is the colour". 06.22 Mr Wang "I don't know the name of the colour". 06.24 Member "But why not? Well, they're standard colorbond colours, aren't they?" 06.29 Mr Wang "Yes, the fencer will know it and match to existing colour". 06.34 Member "Ok, what do you think about Mr Dimitropoulos's proposal that the posts be in his colour and the tracks be your colour?" 06.44 Mr Wang "I wouldn't worry too much, that's fine with me" 06.47 Member "That's Ok?" 06.48 Mr Wang "Yes" 06.49 Member "Ok. So if I make an order that SFG Fencing be retained to do it in accordance with that agreement, that disposes of the front fence, right?" 07.01 Mr Dimitropoulos "Correct". 07.04 Member "Are you happy with that Mr Wang?" 07.04 Mr Wang "Yes, its ok. The only thing I need to confirm with Mr Spiro with regarding to the final price, because I'm not sure". 07.12 Member "Well, no, no, one of the reasons we are not sure Mr Wang is because you have produced no quotes" 07.23 Mr Wang "From last I can remember, I never (inaudible word) from my submission, I agree already in the last time". 07.45 Member "SFG will charge what they charge and the two of you will have to go halves in that, OK?" 07.50 Mr Wang "Yes, that's correct, I agree with that" 1. Regarding the issue with the rear end of the dividing fence and when the final orders were made, the relevant parts of the transcript of 31 August 2022 are: 40.23 Mr Wang "Um, one thing I want to ask Member, like if I wanted to cross (inaudible words followed by), do I have to lodge a separate application?" 40.31 Member "Um, um, well that's what I said, yes" 40.38 Mr Wang "Ok, I will reserve the right to lodge an application for a cross claim". 40.43 Member "But, um, I can tell you Mr Wang that even if you had lodged a cross application, I would've have went against you. I am giving my decision now. I respect to the front fence, I'll make orders saying in accordance with the um, the agreed, um orders of the um, of the parties, that is that the front is to be um, um, installed by SFG with the um, the, the different coloured panels on each side. Woodland Grey on Mr Dimitropoulos's side and a side specified by Mr Wang on the other side, um, that the, um. That the posts can be Woodland Grey, the tracks can be Mr Wang's colour, um in respect to the rear fence, I find that the fence that has been erected is not up to standard, it is aesthetically, um, um displeasing and it needs to be replaced and repaired, or repaired properly so I proposes to make an order under the Dividing Fences Act that um, Mr Wang, um, pay, um, the entire cost of repairing the rear fence, the reason for that is, while he submits that the cause of the demolition of the fence is the weather, um, it appears from the evidence before the Tribunal that the water tank was improperly installed in that it was placed on a sloping um, bed of concrete when the tank filled up, it fell over on the fence and caused the damage, um, its not for Mr Dimitropoulos to have to pay for the repair of the fence at all, um, so even if Mr Wang had put on a cross claim, I would have denied that in any event. Um, so there the orders I propose to make. Each side bear the cost of the, um, installing the (Mr Wang interrupts Member)". 42.43 Mr Wang (inaudible three to four words then Member interrupts him). 42.45 Member "Mr, Mr Wang, I'm delivering my decision, please don't interrupt. Mr Wang and Mr Dimitropoulos can share, are to share the cost of installing the front fence and Mr Wang is to bear the entire cost of replacing the damaged rear fence. That's my decision". … 1. The time for compliance with the Original Orders needs to be determined before considering whether the Tribunal can exercise discretion to treat the renewal proceedings as an application for a money order. 2. The Tribunal file COM22/22892 shows that the Original Orders were made on 31 August 2022 and entered by the Member on 7 September 2022. The transcript shows that the orders were made ex tempore at the hearing. Notwithstanding the written notification of the Original Orders being made dated 7 September 2022, the Tribunal is satisfied that the Original Orders were made on 31 August 2022. 3. The Original Orders do not specify a time for the fencing works to be carried. In the absence of such a time in the order, the DFA at s 15(2) provides that if no such time is specified in the order, then the required time for carrying out the fencing work is within 3 months after the making of an agreement or order for fencing work. 4. In the Original Proceedings the applicant sought orders determining: * The fencing work to be carried out (including the kind of dividing fence involved) * The manner in which contributions for the fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work. * Which portion of the dividing fence is to be construed or repaired by either owner. * The time within which the fencing work is to be carried out. 1. The fencing work was carried out and completed by the applicant's contractors on 6 December 2022. The fencing work was carried out more than 3 months after the Original Orders were made. 2. The Renewal Proceedings were commenced on 20 December 2023 and sought orders for the payment of money in the amount of $1,386.00, costs and interest at the Local Court pre-judgement rate of 4.85% in addition to orders that Order 1 and 2 made on 31 August 2023 be amended for a specific amount. 3. Where fencing work has not been carried out in accordance with an agreement or order, the applicant was entitled to avail himself of the provisions of s 15(1)(a) and carry out the fencing work as determined by the order on 31 August 2022. 4. The Tribunal now, in these Remitted Proceedings, is satisfied that the applicant sought as part of the orders in the Renewal Proceedings an order for the payment of money under the DFA. 5. The Tribunal finds that the Remitted Proceedings ought to be treated as a fresh application for the recovery of monies under the DFA. Do the Original Orders require a party (and if so which party) to carry out fencing work; 1. The Original Orders do not stipulate which party is to carry out the fencing work. 2. The application for orders in the Original Proceedings is based on the Fencing Notice. Without a valid fencing notice the Tribunal would not have had jurisdiction to entertain that application. 3. The Fencing Notice does not propose who will carry out the fencing works. 4. S 14 of the DFA sets out the orders the Local Court or Tribunal may make. The DFA does not prescribe the making an order to carry out fence against either or both adjoining owners. 5. The applicant sought the orders as set out previously. The respondent did not make a cross application. 6. As the applicant has made the application for orders and has obtained the quote for the carrying out of the fencing works it may be inferred that the orders are in favour of the applicant arranging for the fencing works being carried out. However, the DFA does not require such an order, although in practice such an order is usually made. 7. S 3 of the DFA defines "adjoining owners" as the owners of land on either side of a common boundary. 8. S 15 of the DFA provides: (1) If an agreement is reached by adjoining owners or an order is made by the Local Court or the Civil and Administrative Tribunal and an adjoining owner bound by the agreement or order fails within the required time to perform his or her part of the agreement or to comply with the order, the other adjoining owner: (a) may carry out the fencing work as agreed on or as determined by the order, and (b) may recover from the defaulting adjoining owner the amount agreed or ordered to be paid by that adjoining owner or (if the agreement or order does not specify the amount to be paid) half the cost of the fencing work carried out. (2) The required time is the time specified in the agreement or order or, if no time is specified, within 3 months after the making of the agreement or order. 1. If the orders are construed as read, then the orders are in favour of both adjoining owners and either owner could have carried out the fencing works. In that the works were not carried out in the required time of 3 months, the applicant could cause the fencing work to be carried, as he did. The respondents being similarly able to cause the works to be carried out, but did not. What was the scope of fencing works required by the Original Orders with regard to the front fence, including for example the height and length of the fence, the location of the fence (for example whether or not on the boundary line) and the materials to be used for the fence 1. The Fencing Notice, with the applicant's quotes attached, specified the fencing works to be carried for both the front end and rear end of the dividing fence. The application in the Original Proceedings is based on the Fencing Notice. 2. The scope of the fencing works particularised in the Fencing Notice are: Front end fence works: Length of fence: 3.4 metres; Height of fence:1200mm; Type of Fence: Colorbond-slate grey Cost: $462.00 – The front end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $231.00 to Sydney Fencing and Gates on the date of completion and Spiro Dimitropoulos and Anna Dimitropoulos to pay $231.00 to the fencing contractor on the date of completion. Rear end fence works: Length of fence: 8.2 metres; Height of fence: 1800mm; Type of Fence: Colorbond-slate grey Cost: $1,386.00 – The rear end dividing fence is to be built by Sydney Fencing and Gates (copy of quote attached). Whitney Hong Wang and Yunhao Ding to pay $1,386.00 to Sydney Fencing and Gates on the date of completion. 1. The transcript of the Original Proceedings that the applicant and the respondents agreed with the Member that the front fence would be in accordance with the SFG quote but at the request of the respondents the colour of the fence would be different on each side increasing the cost to $660.00 and that the cost of the fencing works be shared between the parties, that is $330.00 each. The respondents agreeing that SFG would charge the amount to carry out the fencing work and that they agreed to pay half of that cost (Transcript at 07.50). What was the scope of fencing works required by the Original Orders with regard to the rear fence, including what section of the rear fence was to be repaired and the scope of repair works required; 1. For the reason as set out regarding the front end of the dividing fence, the scope of the fencing works for the rear end of the dividing fence was particularised in the Fencing Notice upon which the application is based. 2. In the transcript (at 40.43), the Member found that the respondents were liable for the proposed fencing works for the replacement of the repaired rear end dividing fence. 3. The transcript also provides (at 10.10): 10.10 Member "So you got a quote from SFG to replace that length of fencing?" 10.15 Mr Dimitropoulos "Correct". 1. The SFG quote is dated 8 April 2022 and was attached to the Fencing Notice. Whether the fencing works were required to be carried out in accordance with a particular quote or invoice; 1. The Fencing Notice and the application based on the Fencing Notice reference both SFG quotes. The transcript shows that the Member referred to both SFG quotes respectively for the works required to be carried out, except with the variation of the quote for the front end of the dividing fence which was increased to accommodate the respondents concern for the fence colour on their side of the fence to match their existing fence colour. 2. The Tribunal is satisfied that it can infer from the transcript and the application that the Original Orders were referenced to the SFG quotes for the scope of the works to be carried out. When did the "required time" for compliance with the Original Orders expire? 1. This question has been answered under the heading "Whether it is appropriate to treat the application as a fresh application for recovery of monies under the Dividing Fences Act"(see paragraphs [56] – [60] of these reasons) Whether the appellants (respondents)failed within the "required time" to comply with the order, including whether there was "substantial compliance" with the Original Orders by the appellants for the purpose of s 16 of the Dividing Fences Act. 1. The fencing works ordered were not carried out within the required time under the DFA. There was no substantial compliance with the Original Orders. The fencing work was not carried out until the applicant's contractor completed the fencing works on 6 December 2022. Whether the work carried out by the respondent is the fencing work determined by the Original Orders. 1. On the evidence before the Tribunal the fencing work now completed has been completed in accordance with the Original Orders Whether, in the exercise of its discretion, the Tribunal should make a money order in favour of the respondent and if so, what amount the respondent is entitled to recover. 1. The Tribunal will exercise its discretion and make a money order in favour of the applicant against the respondents in the amount as claimed by the applicant being $330 as the respondents' contribution to the cost of the front end dividing fence and $1056.00 for the whole of the cost of the rear end dividing fence rectification, a total of $1,386.00 as was the intent of the Original Orders. 2. As to Deputy President Harrowell's directions the Tribunal responds respectively in the succeeding paragraphs. Whether the orders made by the Tribunal in application COM22/22892 on 31 August 2022 (being orders dated 7 September 2022) (Original Orders) were sufficiently certain as to: (i) scope of the fencing work; (ii) location of the fencing work; (iii) who was entitled to carry out the fencing works; (iv) what was the date by which any works were required to be carried out; (v) the circumstances in which the respondents would be liable to pay the applicant the cost of any fencing work performed by the applicant. 1. The Tribunal response to this question is set out in paragraph of these reasons [75] – [82]. For the purpose of the previous direction, whether, to the extent of ambiguity, the transcript and other evidence provided to the Tribunal in application COM 22/22892 is admissible for the purpose of construing the Original Orders and what is the proper construction of those orders. 1. The Tribunal has considered the evidence before it and relied upon the transcript to make inference to clarify any ambiguity in Original Orders. Whether, to the extent the respondents were required to perform fencing work pursuant to the Original Orders, they failed to do so, or failed to do so in the required time. 1. The Tribunal has responded to this question in paragraphs [56] to [60] and [65] to [73]. To the extent the applicant was entitled to perform any fencing work, whether he did so in accordance with the Original Orders and/or the works done were of the required standard and/or in the correct location required(d) by those orders or otherwise by the Dividing Fences Act (1991) (NSW). In this regard the respondents contend the works done by the applicant were not on the boundary between the properties. 1. S 16 of the DFA provides: 16 Substantial compliance sufficient (1) Substantial compliance with the terms of any agreement or order referred to in section 15 is sufficient for the purposes of this Act. (2) However, the adjoining owner who carries out the fencing work is liable to the other adjoining owner for any defect or omission in the fencing work. 1. The Tribunal is satisfied that the front end dividing fence installed by the applicant's contractor satisfies the requirements of a sufficient dividing fence and that it has been constructed substantially in compliance with the intent of the Original Orders. The front end dividing fence was installed in the same position above the existing boundary line adjacent to existing pavers. The encroachment is less than 0.5% of the length of the respondents' frontage to High Street. The encroachment is minor and within a reasonable person's acceptable tolerance. The fence follows the line of the existing pavers and is within an acceptable tolerance given proportionality of the length of the boundary (see Purcell v Chadwick [2018] NSWCATAP 250; Nasr v Kassiri [2020] NSWCATCD 12 and Jiang v Cousins [2019] NSWCATAP 118). Whether a money order should be made in favour of the applicant in consequences of the Original Orders and, if so, for what amount. In this regard, there is an issue as to whether an order should be made under s 15(1)(b) for the payment of money. 1. The Tribunal has considered this issue in its reasons at paragraphs [65] and [87]. Whether any issues identified by the Appeal Panel in its reasons for decision dated 23 May 2023 (Wang v Dimitropoulos [2023] NSWCATAP 137) (Appeal Panel) otherwise entitle or disentitle the applicant to the relief sought, 1. The Tribunal has answered this direction generally in its determination set out in paragraphs [51] to [87] Whether, having registered and enforced by way of garnishee the order of the Tribunal (Money Order) made on 23 January 2023 (as subsequently amended) in application COM 22/56134 (the second proceedings) for payment of money, the applicant should repay to the respondents the money received by reason of the Appeal Decision setting aside the Money Order and having regard to any determination in the present proceedings, 1. The Tribunal makes a money order in favour of the applicant. The money order can be applied against the moneys received by the applicant through his enforcement of the Money Order made on 23 January 2023 by garnishee. Other orders Costs 1. The respondents made submissions in support of an application for costs filed on 3 October 2023. 2. The applicant made submissions in support of an application for costs against the respondents filed on 4 October 2023. 3. The applicant made submissions opposing the respondents' application for costs on 16 October 2023. 4. The respondent made submissions opposing the applicant's application for costs on 16 October 2023. 5. Neither party were legally represented in the proceedings. 6. S 60(1) of the CATA Act provides the general rule that parties should bear their own costs. No sufficient special circumstances under s 60(2) have been established by either party to warrant the Tribunal making a costs order in their favour. 7. The Tribunal declines to make an order for costs in favour of either party including the claim by the applicant for him to be reimbursed for the cost of a transcript. Interest 1. In his final submission the applicant appears to have abandoned his claim for interest on the amount of his claim in accordance with the Local Court interest rate. In any case, in proceedings before the Tribunal no claim for interest can be made by reference to the Local Court interest or under any other relevant legislation to a claim under the DFA. Orders 1. The Tribunal orders that: 1. The respondents, Whitney Hong Wang and Yunhao Ding must pay the applicant, Spiro Dimitropoulos, the amount of $1,386.00. 2. Any amount payable under Order (1) is to applied against any amount received by the applicant, Spiro Dimitropoulos, under any garnishee order against the respondent, Whitney Hong Wang and Yunhao Ding. 3. Any difference in the amount ordered in Order (1) and any amount paid under the garnishee order referred to in Order (2) for the debt recovered (not including costs and interest) must be paid by the respondents, Whitney Hong Wang and Yunhao Ding. 4. There is no order as to costs. ********** 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: 08 August 2024