Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tam v Cox [2024] NSWCATAP 206 Hearing dates: 8 October 2024 Date of orders: 17 October 2024 Decision date: 17 October 2024 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member M Deane, Senior Member Decision: (1) The time for lodging the Notice of Appeal is extended to 26 July 2024. (2) Leave to appeal is refused. (3) The appeal is otherwise dismissed. (4) Each party is to pay their own costs of the appeal. Catchwords: APPEALS – Extension of time granted – appellant a successful applicant – complaint about conduct in response to orders – no error on a question of law – no substantial miscarriage of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa 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: Ken Tam (Appellant) Nick Cox (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): 2024/00274808 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2024] NSWCATCD Date of Decision: 9 May 2024 Before: P Millar, General Member File Number(s): 2023/00368142 REASONS FOR DECISION Outline 1. This is an appeal from an order made in the Consumer and Commercial Division in relation to a dividing fence. The appellant made a successful claim against the respondent in relation to damage caused to their dividing fence by construction work on the respondent's property. 2. The Notice of Appeal was lodged about seven weeks late, shortly after a renewal application was withdrawn. 3. A single ground of appeal was expressed as: "The Tribunal failed to define what constitutes a reasonable standard in Order 1A". 4. Leave to appeal was sought on three grounds: (1) that the decision was not fair and equitable, (2) that the decision was against the weight of the evidence, and (3) that there was significant new evidence now available that was not reasonably available at the time of the hearing. 5. Having considered the documents lodged, and the submissions made during the hearing of the appeal, we consider that an extension of time should be granted but that no error of law had been shown and that, as there was no substantial miscarriage of justice, leave to appeal should be refused. 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) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13] the Appeal Panel set out a non-exclusive list of questions of law: (1) Whether there has been a failure to provide proper reasons… (2) Whether the Tribunal identified the wrong issue or asked the wrong question … (3) Whether a wrong principle of law had been applied … (4) Whether there was a failure to afford procedural fairness … (5) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations … (6) Whether the Tribunal took into account an irrelevant consideration … (7) Whether there was no evidence to support a finding of fact … (8) Whether the decision is so unreasonable that no reasonable decision-maker would make it … 1. The circumstances in which the Appeal Panel may grant leave to appeal 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. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: (a) the decision of the Tribunal under appeal was not fair and equitable; or (b) the decision of the Tribunal under appeal was against the weight of evidence; or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins, at [84], the Appeal Panel stated 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. Hearing 1. After introductory matters, and having identified the relevant documents, oral submissions were made, following in the usual sequence of appellant then respondent, followed by the appellant in reply, so that each party was able to speak in support of their case and to respond to the case of the other party. Documents 1. Documents lodged by the parties in respect of this appeal were those received from the appellant on 2 September 2024 and 25 September 2024 and from the respondent on 12 August 2024 and 19 September 2024. Appellant's submissions 1. The appellant contended that the order did not specify which part of the fence should be repaired or indicate what was a reasonable standard. This had led to wide discrepancies in the quotes which he and his neighbour had obtained. 2. The appellant provided a structural report from SWE (Structswork Engineering) dated 30 August 2024 (the new report) which compared the appellant's quotes for the work that his contractors considered needed to be undertaken to restore the damaged portion of the fence to a reasonable standard with the respondent's quotes. The appellant's quotes came in at $16,300 and $23,489. The respondent's quotes were $4,532, $5,170, $5,335 and $4,950. The appellant noted that the respondent's third quote ($5,335) had been from the same company as the company which had provided the respondent with a quote for $15,675 prior to the hearing in the Consumer and Commercial Division. 3. The appellant submitted that he should be allowed to rely on the new report because it contained information which had been generated after the hearing in the Consumer and Commercial Division and it had been provided for comparison purposes. Although the appellant was aware of the quote for $15,675 at the hearing in the Consumer and Commercial Division, the respondent had not produced it to the Tribunal. 4. The appellant submitted that the fence cannot be restored with the same materials and the respondent's quotes contain insufficient detail to adequately explain how the fence will be restored to a reasonable standard. An explanation was provided for why the Notice of Appeal was lodged late. As to the new evidence, it was contended that the appellant should be permitted to rely on the new report for comparison purposes, Respondent's submissions 1. The respondent said he obtained quotes to repair the damaged portion of the fence, while the appellant obtained quotes for replacement. He said he is happy to go back and ask for more details. Further, that the quotes were provided by licensed contractors, that the materials needed to be up to standard, and that both parties had statutory rights on completion of the work that could be enforced against a contractor, if necessary. There was no objection to granting an extension of time. Submissions in reply 1. The appellant noted: 1. he was not trying to obtain an entirely new fence; he was seeking restoration to the original condition, 2. the engineer had said the retaining wall beneath the fence could not be repaired and needed to be replaced, 3. the appellant was only asking for the damaged part to be rectified, 4. the photographs in a structural report from SWE dated 12 February 2024 (pages 9-11) which had been provided at the hearing in the Consumer and Commercial Division and was attached to the Notice of Appeal showed that the fence was straight prior to the damage caused by the respondent's construction. The first instance decision 1. The published reasons indicate that, at first instance, the Tribunal was satisfied that (1) both the retaining wall and the fence were not in a sufficient state, (2) that such a finding only applied to part of the fence, and (3) that the respondent should bear the cost of rectification. Order 1, made on 9 May 2024, was: A. Each party is to obtain at least one quote from a licensed contractor for the fencing work need for that part of the fence and retaining wall that is not sufficient and is to be restored to a reasonable standard. The respondent will be responsible for the costs of that work specified in the quote. B. The parties are to exchange their respective quotes with each other within seven days of the receipt of their quote. C. The parties are to agree on the quote to be accepted. If the parties cannot agree on the quote to be accepted, then the median quote in terms of cost of the works to be done will be the quote to be adopted by both parties. D. If a quote is not obtained by the respondent within one month of the date of these orders, then the quote obtained by the applicant will be accepted. E. Subject to availability of the fencing contractor, the fencing work is to be completed within three months of the acceptance of the quote. Consideration Extension of time 1. The reasons were dated 9 May 2024 and r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) required that the Notice of Appeal be lodged within the following 28 days, which is by 6 June 2024. As the Notice of Appeal was received on 26 July 2024, the appeal has been commenced 50 days out of time. Accordingly, the appellant requires an extension of time. 2. The NCAT Act, s 41 provides the Tribunal with the power to extend time: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. The relevant considerations as to the exercise of that discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22]: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? (2) In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. (4) If the explanation for the delay is less than satisfactory and/or if the opponent has a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. 1. The reason for the late commencement of the appeal was that the appellant commenced renewal proceedings. After a directions hearing on 18 July 2024, in light of what was said to him on that occasion, he withdrew that application and commenced this appeal a week and a day later. It is noted that the respondent did not oppose granting an extension of time. In those circumstances, we consider the explanation sufficient to warrant granting an extension of time in relation to the Notice of Appeal lodged on 26 July 2024. Grounds of appeal 1. The sole ground of appeal was said to be that: "The Tribunal failed to define what constitutes a reasonable standard in Order 1A." 2. In the Dividing Fences Act 1991 (NSW) (DFA), s 8 provides as follows: (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. 1. The use of the words "reasonable standard" matches the words used in s 8(2) of the DFA. Having regard to what was said in Prendergast, order 1A does not involve any error of law. 2. From the documents lodged by the appellant, and his submissions, it appears that the appellant's primary complaint is not about the orders that were made at first instance, but about the conduct of the respondent in relation to those orders, notably in relation to the quotes which he provided to the appellant in compliance with the orders that were made on 9 May 2024. That does not raise any error on a question of law. Decision not fair and equitable 1. In the Notice of Appeal, it was contended that the decision was not fair and equitable for the following reasons: The Tribunal did not specify a clear definition of what constitutes a "reasonable standard" in Order 1A. As a result, the respondent has tried to find loopholes and misinterpretations of the NCAT Order. The same respondent's contractor (EMRIT Services) who in December 2023 assessed the damage and provided a quote of $15,675 after the 1st NCAT hearing, has now provided a second quote for only $5,335 with a very brief job description. That is not fair to the applicant because the respondent has now deliberately left out important details from the required quote, dramatically reduced the scope of works needed to repair the damage, and greatly reduced the cost now that they are solely liable for the repairs. 1. Consistent what was said above, the orders made on 9 May 2024 cannot be said to be neither fair nor equitable when they adopted the words of the relevant provision in the DFA. Any alleged conduct of the respondent after the order was made cannot justify a finding that the decision was not fair and equitable. While it may have been preferable to specify the precise area of the retaining wall and fence to be repaired, the reasons that were published when the orders were made are sufficiently clear to indicate what work is required. 2. Quotes obtained and provided after the hearing do not go to the question of whether the decision was not fair and reasonable. What is clear is that if the appellant considers the respondent has not complied with the orders made on 9 May 2024, he should commence and maintain renewal proceedings. It is to be regretted that the appellant did not proceed with the renewal application he commenced. However, there should be no need for further proceedings in relation to the subject matter of these proceedings because (1) it is clear from the orders and reasons what is required, and (2) the respondent has indicated that he is willing to obtain and provide further details of the work covered by the quotes he obtained. 3. As to the provision of quotes as evidence in the hearing at first instance, it should be observed that it would not be feasible to provide quotes unless and until the scope of work has been determined. Indeed, the reasons recorded, in [23] that the appellant did not provide quotes for that reason. Decision against the weight of the evidence 1. This aspect of the Notice of Appeal included a repetition of the complaint as to the wording of order 1A, suggesting that wording should have been based on the findings of the structural reports submitted by the parties. However, as the first instance decision made an order in favour of the appellant that was based on that evidence, it cannot be said that the decision was against the weight of the evidence. Significant new evidence 1. The significant new evidence now available was said to be the quotations and a review of those quotations by a structural engineer in a report dated 30 August 2024. 2. Set out below are details of the quotations, in chronological order: 1. Respondent's 21 December 2023 quotation for $15,675, 2. Appellant's 16 May 2024 quotation for $16,300, 3. Appellant's 20 May 2024 quotation for $23,489, 4. Respondent's 21 May 2024 quotation for $5,170, 5. Respondent's 2 June 2024 quotation for $4,532, 6. Respondent's 5 June 2024 quotation for $5,335, and 7. Respondent's 7 June 2024 quotation for $4,950. 1. The first of those seven quotations was obviously available prior to the hearing. While the other six quotations and the engineer's report do constitute significant evidence that is now available that was not available at the hearing, and although the respondent did not speak against the admission of those documents, they lack utility in this appeal for two reasons. 2. First, because an appeal is not an opportunity to run a case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. As stated in Guideline 1, Internal Appeals (which is published on the Tribunal's website), "an appeal is not an opportunity to have a second go at a hearing". To delve into the merits of the quotations would be to revisit the issues determined at the first instance hearing, 3. Secondly, the appellant's desire to explore on appeal the comparative merits of the various quotations is a matter going to the conduct of the parties in response to the orders that were made at first instance. That does not provide a basis for either setting aside or varying those orders. Substantial miscarriage of justice 1. The unusual feature of this case is that the appellant was successful at first instance in obtaining an order for the repair of the damaged section of a retaining wall and fence with the cost of that work to be paid by the respondent. We are unable to see how that decision involved a substantial miscarriage of justice. 2. By reference to what was said in Collins, at [84] (set out above), this appeal involves no issue of principle, does not raise a question of importance that may have general application, does not reveal any injustice, does not involve any error or mistake, and the orders and reasons cannot be said to have been either unorthodox or such as to produce an unfair result. In short, this appeal has been brought by an appellant who was successful at first instance and who is dissatisfied with the conduct of the respondent in response to the orders that were made. 3. Those orders clearly provided for the fence to be repaired, not replaced. They did cover both the retaining wall and the fence, but did not cover the entire retaining wall and fence. It is noted that the median quote is the respondent's 5 June 2024 quotation for $5,335, and that the respondent has offered to obtain and provide further details to the appellant. Leave to appeal 1. As no substantial miscarriage of justice has been shown, leave to appeal must be refused. Costs 1. The effect of r 38A of the Rules is that costs of the appeal are to be determined on the same basis as was the case at first instance. In these proceedings, costs were governed by s 60 of the NCAT Act, the effect of which is that each party is to bear their own costs unless there are special circumstances warranting an order for costs. 2. No order for costs was made at first instance and we do not consider there are any special circumstances warranting an order for costs in relation to this appeal. As a result, for the avoidance of doubt, we will make an order that each party is to be bear their own costs of the appeal. Orders 1. For the reasons set out above, the following orders are made: 1. The time for lodging the Notice of Appeal is extended to 26 July 2024. 2. Leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. Each party is to pay their own costs of 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 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 October 2024