Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Andrew v Anania [2025] NSWCATAP 41 Hearing dates: 18 November 2024 Date of orders: 21 February 2025 Decision date: 21 February 2025 Jurisdiction: Appeal Panel Before: E Bishop SC, Senior Member D Fairlie, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL — dividing fence — renewal proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), cll 8 and 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c) Dividing Fences Act 1991 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Minifie v Maxwell [2020] NSWCATAP 30 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: None cited Category: Principal judgment Parties: Christopher Ian Andrew (Appellant) Ken Anania (Respondent) Representation: Appellant (self-represented) Respondent (self-represented) File Number(s): 2024/00295773 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 12 July 2024 Before: D Goldstein, Senior Member File Number(s): 2023/00382212 REASONS FOR DECISION Introduction 1. This is an appeal of a decision of the Tribunal dated 12 July 2024 under the Dividing Fences Act 1991 (NSW) ("DFA"), in a dividing fence dispute. 2. The parties are neighbours in a suburb in Sydney. There have been numerous past disputes regarding the fence between them spanning back to 2016. 3. For the reasons set out below we have decided to dismiss the appeal. Background 1. The appellant ("Mr Andrew"), applied to the Tribunal in 2016 (COM 16/50153) for relocation and replacement of the fence between his property and that of his neighbour, the respondent ("Mr Anania"). Mr Andrew was concerned about the amount of soil in the landscaping abutting the fence (on Mr Anania's side of the fence) and the impact this would have on the stability and structure of the fence. That application was dismissed on 8 February 2017. 2. On 24 May 2023, Mr Andrew served a notice on Mr Anania to carry out fencing work. The notice proposed that landscaping which abutted the fence be removed and the existing fence be replaced and relocated "to current style and dimensions", at Mr Anania's cost. 3. Mr Andrew also lodged a dividing fencing application (COM 23/35373). The hearing of that application was adjourned twice but ultimately heard on 19 January 2024. The orders sought by Mr Andrew on that application were for "the respondent to engage a suitably qualified contractor to repair the bow in the dividing fence as identified by the applicant at the cost of the respondent." The Tribunal made the following orders: "1. The respondent will within two and half months from today engage a suitably qualified contractor to repair the bow in the dividing fence as identified by the applicant at the cost of the respondent. 2. The applicant will upon reasonable notice grant access to the contractor." 1. Compliance with the orders was required by 28 March 2024. 2. There was no detail in those orders as to whether there was to be agreement about the "suitability" of the contractor, rather, the Tribunal granted order 1 in the form sought by Mr Andrew. However, it was clear (in the context of ongoing disputes between the parties), the Tribunal required that Mr Andrew was to give access to a contractor for the purpose of complying with the first order. 3. On 21 February 2024, Mr Andrew emailed Mr Anania to tell him he would flag the location for the bow in the fence. There was a photo of this before us. He also requested that Mr Anania provide him with the licence number of the intended contractor so that he could ensure the person was "appropriately qualified for the work". 4. Mr Anania subsequently engaged a project manager, Mr Gill of Projectus PM Pty Ltd, to inspect the bow in the fence as identified by Mr Andrew. Mr Gill is another neighbour in the area. Mr Anania says that Mr Gill inspected the fence from his side and told him the fence did not require complete replacement but would easily be straightened with a suitable timber bolted from Mr Anania's side. 5. On 28 February 2024, Mr Gill inspected the fence from Mr Anania's side and then emailed Mr Andrew: "Ken has asked me to look at proposed fencing rectification and suggest the best remedy for your concerns. As I can see, there is a very slight bow of approx. 10-20mm in the bottom bearer. Apart from this slight bow, the bearer is in good condition and not structurally defective. Replacing the bearer from your side will result in one piece of new timber that will not match the existing patina of the 10-year-old-fence. My suggestion is the supply of a new bearer and fix it to Ken's side and screw the two bearers together so the look stays original on your side. This will correct the bow without disturbing everything around it. I have a Builder/Carpenter working at my place tomorrow, and for the rest of the week, we could finish this before then. Are you at home tomorrow for a brief chat?" 1. On 1 March 2024, Mr Gill attended with Mr Anania and Mr Andrew. After the meeting, Mr Anania sent Mr Andrew an email as follows: "As discussed on site today with yourself and my supervisor [Mr Gill]… a solution to the bow issue has been achieved. Mr Gill has selected a appropriately qualified contractor, who Mr Gill has worked with for over 20 years, to carry out the repair as specified on the Tribunal order of 19th January 2024. The contractors details are: Steven Schmerlieb of … Steven's Builders Licence number is 33499C valid until 16/6/24. Both tradesman have inspected the bow and have recommended solution to repair the issue. I acknowledge your 'flag' of the 22nd February 2024 being of a white rag placed on the capping timber (see attached photo). The work is scheduled to begin at 7.30am Monday the 4th March so limited access to your property may be required." 1. Mr Andrew sent an email in response as follows: "Unfortunately the discussion with [Mr Gill] was far from clear on a solution. Certainly it will need a deal more consideration and discussion to reach an agreement in line with the fencing order. In terms of timing, aside from it being a little premature to start without a mutually agree solution, it is appropriate prior to commencing any works to reach a date that suits both parties. This is typically done by discussing the matter. I would suggest [Mr Gill] reach out to make an appointment so we can formally agree to an appropriate remedy and discuss a suitable time for the work to commence." 1. Mr Anania emailed Mr Andrew as follows: "The order is very clear, as is the photo you supplied I need to repair a bow in a bearing and this will be done by a qualified tradesman as specified." 1. Mr Andrew responded: "Your reply actually underscores the need to formally agree on a remedy give you've clearly misunderstood the order: … So we don't waste any further time on emails, I'll await [Mr Gill] to reach out & make an appointment so I (as the applicant) can identify the bow in the dividing fence and then we can agree on the work to be done…" 1. There was obviously disagreement about the scope of the work to be undertaken (in particular that Mr Andrew wanted a complete replacement of the entire fence). Mr Gill emailed the parties: "Good Morning Gents I suggest you seek clarification on the intent of the order form the Tribunal before any work is conducted, in particular, the location and extent. I am willing to assist in arranging a tradesperson to carry out the work on [Mr Anania's] behalf, but I am not interested in being involved in any dispute. Once you clarify the extent of the work that needs to be done, Steve can advise on the best way to achieve the required outcome & a date on which it can be done. Please get in touch with me again when you have reached a consensus on the above." 1. It was clear in the correspondence that Mr Andrew expected that there was to be agreement on the scope of the work to be undertaken despite the absence of any order for such agreement to be reached, and that he considered the damaged bow to extend beyond what he had flagged. 2. Mr Anania wrote to the Tribunal on 1 March 2024 seeking clarification about what the Tribunal meant by "bow" and whether it meant the entire fence or just the section of the fence that Mr Andrew had identified and had indicated to the Tribunal in photographs. 3. The Tribunal replied on 4 March 2024 confirming that "the Tribunal member referred to only one bow as identified in the hearing as the only bow referred to in the order. There were no other bows specifically identified during the hearing". Mr Anania informed Mr Andrew of the Tribunal's communication. 4. Mr Anania made another three requests (on 4 March, 21 March and 22 March 2024) to Mr Andrew for the contractor to access his property to make repairs. 5. When no permission was given by Mr Andrew, Mr Anania contacted the Tribunal to inform Senior Member Bluth that Mr Andrew would not grant access to the contractor and that his time period to comply had almost expired. It was also the Easter long weekend and so time was running out. 6. Mr Andrew advised Mr Anania that he would contact the Tribunal to enforce the order by scheduling another hearing. 7. Mr Anania emailed the Tribunal providing a timeline of events and seeking advice from the Tribunal. 8. On 24 March 2024, the contractor ultimately made the repair to the bow in the fence from Mr Anania's side of the fence. At the contractor's instruction, Mr Anania had previously cut a piece of 3 metre length treated pine which he bought from Bunnings (for $12) to the required length of 2.70 metres and pre- drilled holes in the new timber where the contractor had marked it with chalk. The contractor then came and attached the timber to the affected bearer and instructed Mr Anania to tighten the bolts half a turn each day so as not to stress the timber. This was so that the contractor did not have to travel from Western Sydney to Northern Sydney every day to tighten them himself. 9. On 28 March 2024, Mr Gill came to inspect the repair and approved the repair. A photograph of the repair work was taken and provided to the Tribunal. 10. Mr Anania then emailed the Tribunal: "This is to inform that the attached order and direction of 19th January 2024, to repair the identified bow in our common boundary fence, has been successfully repaired. Despite numerous requests to the applicant, access to Andrew property was not granted. This required repair to be achieved without access to the Andrew property. Mr Fyaz Gill of Projectus PM Pty Ltd has completed a final inspection of the repair on 26th March 2024 and he had confirmed that it has been done competently. The order has been completed and the file can now be closed." 1. On 18 April 2024, Mr Andrew filed renewal proceedings (No 2023/00382212). The renewal provisions of the Tribunal are contained in Sch 4 Cl 8 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") and essentially permit a party to renew proceedings if an order of the Tribunal has not been complied with in a certain period. Decision at first instance 1. Senior Member Goldstein gave oral reasons at the hearing of the renewal proceeding on 12 July 2024. A transcript was prepared and there was no dispute at the hearing before us as to the accuracy of the parts of the transcript provided. 2. The email correspondence and photographic evidence was before the Tribunal at first instance and on this appeal. There was ongoing dispute about whether the contractor was "suitably qualified" and whether the bow had been fixed "to Mr Andrew's satisfaction" – that is, he wanted the entire fence replaced and anything less was not suitable to him. 3. Relevantly, the transcript records provide (from [37:21min] as follows: "Mr Andrew states first that there was no suitably qualified contractor who did the work and that was referred to in order 1.1 of Senior Bluth orders. I've been referred to an email on the 1st of March, 2024 from Mr Andrew and he says, as far as possible as follows, Mr Gill has selected an appropriately qualified contractor who has worked for over 20 years to carry up the repairer [sic] specified on the tribunal order of 19th January. And the contractor's details are Mr Steven Schmerleib of St Clair 2759 NSW, Builder's Licence number is 33499C valid until 16/6/2024. Now Mr Andrew says that's not good enough that there's no receipts or formal acknowledgement by the contractor and that there are no warranties, et cetera, but I find that those objections are not really to the point. I find that Mr Anania has had the work carried out by a suitably qualified contractor that is a person who has a builder's licence." 1. During the hearing, Mr Andrew contended that there was no evidence that the work had been conducted by a suitably qualified contractor nor that the fence had been repaired. He said if it had been done by a suitably qualified contractor there would be a warranty with the repairs but there is no evidence that there is a warranty 2. The orders he sought at the application was that "Mr Anania replaces the entire fence to the surveyed line given that he was responsible through his landscaping for distorting and moving the fence in the first place". 3. Senior Member Goldstein noted that this was beyond the scope of the order sought on 19 January 2024. 4. It was also noted that there was photographic evidence: of the part of the fence bowed that Mr Andrew had flagged; the repaired fence; and that there was also evidence of the builder's licence and evidence that this contractor had worked with Mr Gill for over 20 years. The Tribunal determined that Mr Andrew's objections to the effect that this evidence was not good enough as it should also have included warranties – were not really to the point. The Tribunal ultimately found that the work was carried out by a suitably qualified contractor being the contractor who has a builder's licence and that "Mr Andrew had failed to establish that the work was not done by a suitably qualified contractor". For these reasons the application was dismissed. Notice of Appeal 1. A notice of appeal was filed by Mr Andrew under s 80 of the NCAT Act on 12 August 2024. 2. The grounds of appeal were that the Tribunal had failed to "provide fairness and transparency" by not seeking any evidence to verify that the remedial works were undertaken by a qualified contractor. 3. Notably, on the appeal Mr Andrew sought an order from the Tribunal for the replacement of the entire fence at the full cost of Mr Anania. 4. Mr Andrew also sought leave to appeal effectively on the basis that the decision was against the weight of evidence – in other words, he contended the Tribunal failed to see or seek any evidence of works undertaken by a qualified contractor. Mr Andrew also sought leave on the basis that the decision was not fair and equitable because there was no evidence of the repair being undertaken by a suitably qualified contractor and the Tribunal should have sought independent written evidence that the works had been completed. 5. Each party appeared in person without legal representation. For this reason the grounds of appeal should be considered generally by the Tribunal (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]; Cominos v Di Rico [2016] NSWCATAP 5 at [13]. Jurisdiction – Internal Appeals 1. Under s 80 of the NCAT Act, a party may appeal to the Appeal Panel in an internal appeal from an error of law as a matter of right. In respect of errors other than errors of law, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 of Sch 4 of the NCAT Act on the basis that a "substantial miscarriage of justice" had occurred due to: (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). 2. The principles as regarding whether or not leave to appeal should be granted under cl 12 of Sch 4 of the NCAT Act were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [76]-[84]. 3. Under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) ("the NCAT Rules") the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was notified of the decision or given reasons for the decision (whichever is the latter). 4. The appeal in this matter has been filed within the limitation period under r 25(4)(c) of the NCAT Rules; the Notice of Appeal having been filed on 12 August 2024. Legislation under consideration in first decision 1. The renewal provisions in respect of the Consumer and Commercial Division of the Tribunal are contained in cl 8 Sch 4 of the NCAT as follows: 8 Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal. 1. The jurisdiction of the Tribunal was discussed in Minifie v Maxwell [2020] NSWCATAP 30 as follows: [37] The provisions of Cl 8 Sch 4 of the NCAT Act are 'an additional, simple and practical method of enforcing, and promoting timely compliance with, Tribunal orders': Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 at [83]; Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 at [26] ('Vasudevan'). [38] In making orders that are 'appropriate' in renewal proceedings, the Tribunal may have regard to the orders originally made; the circumstances of non-compliance with those orders; the fact of the renewal application; and all relevant circumstances whether they occurred before or after the time the matter was originally determined: Vasudevan at [34]-[35]. [39] The Tribunal has a wide discretion in renewal proceedings to determine what are appropriate orders, including the power to make orders that could not have been made in the original proceedings because there was no power to make a particular order at that stage, but such a power has been enlivened by subsequent events: Vasudevan at [41]-[43]; Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 at [43]-[45]; [54] ('Bondarek'). … [41] By reason of the operation of Cl 8(1) and (2) of Sch 4 of the NCAT Act, for the Tribunal to have jurisdiction: (i) the party bringing the renewal application must be a "person in whose favour" the order in the original proceedings was made; and (ii) the renewal proceedings must be filed in the Tribunal within 12 months of the "end of the period" in which the order (or orders) in the original proceedings was to be complied with.. 1. Clearly, in the renewal proceeding in the Tribunal below, the Tribunal needed to be satisfied whether or not there had been non-compliance with the orders made, that is, whether the repair had been carried out and whether it had been conducted by a suitably qualified person. Consideration 1. We recognise that a self-represented litigant may have difficulty in clearly articulating grounds of appeal and that we should consider the substance of the matters raised on appeal to identify whether a question of law arises: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [28] ("Unique Commercial Group"). 2. Effectively, Mr Andrew argued that there was no evidence to support the findings made. This is a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [52]-[54] cited in Unique Commercial Group. 3. The ground aligned with the basis on which Mr Andrew also sought leave to appeal: that the decision was against the weight of evidence and was not fair and equitable as a result. 4. The arguments raised in respect of both were the same – that there was no evidence that the contractor was a suitably qualified contractor. 5. We reject Mr Andrew's appeal and leave application on both grounds for the same reasons. 6. The Tribunal clearly had before it photographic evidence of the bow in the fence that required repairing. Mr Andrew did not dispute that he placed the flag on the fence where the bow was located. He also confirmed, although reluctantly at first, that the photograph of the repaired fence was in fact the fence. There was sufficient evidence before the Tribunal to be satisfied the repair had been carried out. 7. The Tribunal also had email correspondence which demonstrated that the builder's licence details were given to Mr Andrew and that his qualifications and suitability was supported by the undisputed fact that Mr Gill (the supervisor) had worked with the contractor for over 20 years and was going to supervise and sign off on the work. All of that happened and was put before the Tribunal. 8. What really seemed to be the complaint by Mr Andrew was that he had not approved the work that was done or been satisfied that the work was performed by someone who was suitably qualified. This appeared to be by reference to unspecified criteria and which included that there be warranties for the repair. In truth, central to Mr Andrew's complaint is that the entire fence was not replaced as he had agitated both then (but which was never ordered by the Tribunal) and even again on appeal before us this was reagitated. 9. The Tribunal's findings and conclusions, contrary to what Mr Andrew argued before us, were open on the evidence before him. It was simply not correct that there was no evidence that the contractor was suitably qualified – there was sufficient evidence. The Tribunal was right not to be satisfied that Mr Andrew had discharged his onus of demonstrating that the contractor was not suitably qualified. 10. Consequently, we reject Mr Andrew's contentions that the decision was against the weight of evidence and not fair and equitable. Orders 1. We order as follows: 1. Leave to appeal is refused. 2. The appeal is dismissed. ********** 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: 21 February 2025