Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tompkins v Fonseka [2024] NSWCATAP 262 Hearing dates: 3 December 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Goldstein, Senior Member Decision: (1) Appeal dismissed, except for the purposes of order 2 below. (2) Order 2 made in proceedings 2024/00031420 on 26 August 2024, is set aside and in its place, the Appeal Panel orders the Appellant to pay the Respondents' $790 within seven days. (3) The stay is lifted. Catchwords: Appeal – Dividing Fences Act – no written record of reasons – contested view as to whether oral reasons were given. Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Dividing Fences Act 1991 (NSW) Cases Cited: Nil Texts Cited: Not applicable Category: Principal judgment Parties: David Edmund John Tompkins (Appellant) Jude Fonseka (First Respondent) Roshanie Fonseka (Second Respondent) Representation: Appellant (Self-represented) First Respondent (Self-represented) Second Respondent (Self-represented) File Number(s): 2024/00334948 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 26 August 2024 Before: S Bliim, General Member File Number(s): 2024/00031420 REASONS FOR DECISION Background 1. This appeal concerns a dispute between neighbours over a dividing fence. The Tribunal at first instance was exercising the jurisdiction conferred on it by the Dividing Fences Act 1991 (NSW) (DF Act). 2. The appeal is from a decision published on 26 August 2024 (which we will refer to as the Decision) in which the Tribunal made orders to the following effect: 1. The Applicants (now the Respondents to this appeal) are to carry out the following work by 26 November 2024 in a proper and workmanlike manner: To erect a 10 metre long single paling fence, 1.2 metres high with the timber posts on the boundary line between 31 and 33 XXX from the front footpath back to the existing fence line. 1. The Respondent (now the Appellant) is to pay the Applicants the sum of $825 in the following manner: Pay one half of the deposit required to commence construction of the dividing fence between the parties property prior to commencement of the work and to pay one half of the balance for construction of the fence upon completion. The applicant is to obtain fresh quotes for the construction from Star ES Fencing Group and Chris' Landscape Maintenance and to accept the lowest quote of which each of the parties will pay one half as described. If either contractor is not able to carry out the work each of the parties will obtain another quote and the lowest quote will be used. 1. It is relevant to set out the basic facts that led to the publication of the Decision and the orders summarised above. This is done in the following paragraphs. 2. On about 16 January 2024 the Respondents served a notice under s 11 of the DF Act upon the Appellant in which the Respondents proposed that a fence be constructed between their respective properties. The particulars of the proposed fence were set out in the notice, including its length, height and that it be made of treated pine timber in the same style as the existing boundary fence. The notice set out the estimated cost based upon a quotation from Star ES Fencing Group. The cost was $1,580 and the notice proposed that each party pay half, namely $790. 3. The Appellant did not agree with the proposal set out in the DF Act notice. On 25 January 2024 the Respondents lodged an application in the Consumer and Commercial Division of the Tribunal seeking an order for the erection of the proposed dividing fence. The application attached a copy of the DF Act notice referred to above. 4. It appears that in accordance with the usual procedure the Tribunal made directions for the parties to lodge and exchange their evidence and submissions. The application was heard on 6 May 2024 and the Tribunal made a direction for the parties to lodge submissions after the hearing within a specified time frame. 5. A further hearing occurred on 26 August 2024 and, on the same day, the Tribunal published the orders referred to above. 6. The Appellant lodged a Notice of Appeal on 9 September 2024. Thereafter, the Tribunal made orders and directions for the preparation of the appeal. These included: 1. An order made on 13 September 2024 staying the operation of the orders referred to in the Decision pending further order. 2. Directions made on 27 September 2024 for the Appellant to lodge with the registry and give to the Respondent the evidence given to the Tribunal at first instance on which the Appellant intended to rely. Additionally, the directions required the provision of any evidence not provided to the Tribunal in which the Appellant proposed to seek leave to rely. The directions included the provision that if oral reasons were given and/or what happened at the hearing at first instance is being relied upon by the Appellant, a typed transcript of the relevant parts of the hearing, together with a sound recording of the entire hearing should be provided. Similar directions were imposed upon the Respondents. 1. Subsequently both the Appellant and Respondents have filed submissions. The order staying the operation of the orders contained in the Decision was extended pending finalisation of the appeal. Notice of Appeal 1. The grounds of appeal may be summarised as follows: 1. The orders made by the Tribunal are not consistent with the orders sought and the Appellant was not given an opportunity to present evidence with regards to the orders made. 2. Significant evidence was given to "show that a fence was not required in support the council Parramatta Development Control Plan 2023 and the current streetscape". 1. The Notice of Appeal stated that there is no need for a fence or that any fence needs to comply with the Parramatta Development Control Plan with the use of "plants and landscaping". 2. In addition, in the Notice of Appeal, the Appellant sought leave to appeal on the basis that the Decision was not fair and equitable and was against the weight of evidence. 3. The submissions in support of the assertion that the Decision was not fair and equitable state that the orders that were made included the material of the fence, the type of fence and size of the fence as well as to who was to pay and the amounts to be paid as well as the construction companies to be used. The Appellant contended that he had not been given an opportunity to provide evidence regarding those orders, and that he had suffered procedural unfairness as a result. In addition, he stated that significant evidence was given disputing the need for a fence supported by the council Development Control Plans. He stated that the Tribunal had not given reasons for the orders. 4. In support of the contention that the Tribunal made a decision against the weight of evidence, the Appellant stated that evidence had been given that there has never been a need for a boundary fence in the front setback. Evidence was given showing the open plan and absence of fences and what was proposed was not usual in this streetscape. The Appellant also contended that the Respondents' evidence concerning the need to contain their dog was shown to be misleading. There was evidence concerning safety and in particular that a fence would inhibit visibility of the road for vehicles exiting "given the gradient of the driveway". 5. The Notice of Appeal also contended that evidence given by the Respondents contained irrelevant pictures of property in other streets and misleading pictures of properties in the street in which the parties resided. Further, the Appellant contended that more weight should have been given to the Parramatta control plans of 2023. Reply 1. The Respondents lodged a Reply the effect of which may be summarised as follows: 1. Attached to their initial application was the notice under the DF Act and the quotes from the two contractors. The proposal was clear and specific as to what they proposed. 2. The Parramatta Development Control Plan 2023 refers to front fences abutting council land (ie. the nature strip) and not to dividing fences between neighbouring properties. 3. There was evidence that many properties in the street of the parties' properties have both front fencing and dividing fences in the front setback area. 1. The Reply also attached a copy of the submissions dated 16 May 2024 made as a consequence of the order made by the Tribunal on 6 May 2024. Those submissions refer to submissions lodged and served by the Appellant on 24 April 2020. Appellant's Submissions 1. The Appellant has lodged written submissions in support of the appeal, and at the hearing of the appeal the Appellant also spoke to the submissions. 2. The grounds of appeal are restated and are to the following effect: 1. the orders given are not part of the orders sought; 2. procedural unfairness: the Appellant was unable to forward submissions or evidence with respect to the orders given; 3. vexatious nature of the Respondents' Tribunal application; 4. orders not being fair and equitable and against the weight of evidence; 5. errors in the orders given; 6. Tribunal not providing written reasons for the orders given. Consideration 1. Appeals from decisions made in the Consumer and Commercial Division of the Tribunal are regulated by s 80 of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) and by cl 12 sch 4 of the NCAT Act. Essentially this means that an Appellant may appeal as of right on a question of law or with leave on one or more of the grounds set out in cl 12 sch 4. Clause 12 states the following: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (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). Note: Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80(2)(b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if-- (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. We are of the opinion that there is no substance to the first ground. The orders sought were specific. The Respondents' application and the accompanying documents (ie. the Notice under the DF Act and the quotations) stipulated the length, height, materials and cost of the fence. The Notice identified the section of the DF Act under which it was sent, namely s11.In our view there is no basis for the assertion that the orders given were beyond the scope of the orders sought and that thereby the Appellant suffered procedural unfairness. 2. The second ground of appeal contends that the Appellant suffered procedural unfairness because he was unable to put forward submissions or evidence with respect to the orders given. Again, in our view, there is no basis to this ground. It appears that the Appellant had opportunities to put forward submissions both before the 6 May hearing and after the 6 May hearing. It is not the case that the Appellant could not have foreshadowed the nature of the orders sought or given having regard to the level of particularity contained in the application and in the documents accompanying the Respondents' application. Further there is evidence from the Respondents that the Appellant did lodge submissions prior to the hearing on 6th May 2024 and the Appellant himself has provided a copy of his submission made after 6th May 2024. This ground is rejected. 3. The next ground contends that the Respondents' application was vexatious "relying on defamation and false and misleading unsupported say-so". Under s 55(1)(b) of the NCAT Act the Tribunal may dismiss proceedings "if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". 4. In our view it cannot be said that the Respondents' application is misconceived or lacking in substance. The Respondents were successful at first instance and obtained the orders that they were seeking. As will become apparent we are of the opinion that we should dismiss the appeal and not set aside the orders previously made (except to modify the monetary amount). Accordingly, there was and is no basis for dismissing the Respondents' application. 5. As we indicated to the Appellant at the hearing of the appeal we are of the opinion that we do not have power, outside the scope of s 55, to dismiss an application on the basis that the applicant has behaved vexatiously. In any event on the evidence before us there is no basis for doing so. It is true that the Respondents made assertions in their application concerning the conduct of the Appellant. We understood those assertions to have been perceived by the Respondents to give further reasons for their desire to have a dividing fence. It is not necessary for us to express any opinion as to whether the statements made by the Respondents concerning the Appellant's conduct have any basis in fact. 6. The third ground of appeal is rejected. 7. The fourth ground of appeal contends that the orders made were not fair and equitable and against the weight of evidence. 8. The basis for the contention that the orders were not fair and equitable was that the orders obtained went far beyond an order for the erection of a dividing fence but the order included particulars of the material of the fence, its size and details as to payment. The Appellant contended that he had not been given an opportunity to provide evidence regarding those matters. This ground repeats the contentions made with respect to the first ground of appeal and for the same reasons the ground has no substance. 9. The next aspect of this ground of appeal concerns the contention that the orders were made against the weight of evidence. The contentions in support have already been outlined earlier in this decision. 10. Section 4 of the DF Act provides that the 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". The full terms of s 4 are set out below: 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. It is necessary to say something about the fact that we have not been provided with either a written statement of the Tribunal's reasons or a transcript or sound disc of the Tribunal's oral reasons. The Appellant contended that no reasons at all were given. The Respondents disagree and say that the Tribunal gave oral reasons. The Appellant was directed to provide evidence of what happened at the hearing in circumstances where he wished to contend (as he now does) that something happened at the hearing about which he now complains. The Appellant has not provided such material, and in particular, he has not provided a sound recording of the August hearing or a transcript. We understand that the Respondents have applied for a written Statement of Reasons, but it has not yet been provided. 2. The result is that the Appellant is not able to demonstrate what weight the Tribunal gave to the evidence. It can be seen from s 4 that the Tribunal is obliged to take into account all the circumstances, including the matter specifically listed. How that was done in this case is unknown to us. Yet, the Appellant has been given an opportunity to demonstrate this aspect of his appeal. In the circumstances, we cannot be satisfied that this ground has any merit and it is rejected. 3. We will deal with the fifth ground of appeal last. So far as the sixth ground of appeal is concerned (namely that the Tribunal has not provided written reasons) we also reject this ground. There is no compulsory requirement for the Tribunal to give written reasons, unless one of the parties so applies. The Appellant has not applied. The contentions put by the Appellant in the appeal were capable of being demonstrated by the provision of a sound recording or transcript. A written Statement of Reasons was not necessary to determine whether the Appellant's grounds were meritorious. The lack of a written Statement of Reasons has not impacted upon the Appellant's ability to prosecute his appeal. Accordingly this ground is rejected. 4. The fifth ground of appeal is that there were errors made in the order. This refers to the fact that the Tribunal used language which is, we acknowledge, ambiguous as to the amount payable by the Appellant. The Decision requires the Appellant to pay to the Respondents the sum of $825 but then states that further quotations are to be given and in effect provides that the amount of $825 will be modified if so required by the subsequent quotation. We do not see this as an error, but rather it was the Tribunal's method of trying to adjust the amount to be shared between the parties following the obtaining of a further quotation. 5. During the hearing of the appeal we were informed that the Respondents have obtained a fresh quotation totalling $1,580 and that the amount to be paid by each of the two parties is $790. The Respondents submitted that that figure was the new figure to be paid by the Appellant. 6. In the circumstances order 2 will require amendment. Conclusion 1. The result of our reasoning is that the following orders are now made: 1. Appeal dismissed, except for the purposes of order 2 below. 2. Order 2 made in proceedings 2024/00031420 on 26 August 2024, is set aside and in its place, the Appeal Panel orders the Appellant to pay the Respondents' $790 within seven days. 3. The stay is lifted. ************ 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: 20 December 2024