Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Josephine Rainbird v Mr and Mrs A and F Ghahyazi [2014] NSWCATCD 92 Hearing dates: 14 May 2014 Decision date: 30 May 2014 Before: S Westgarth, Deputy President Decision: 1.The applicant will cause to be constructed on the boundary line between the applicant's property and the respondent's property a paling fence 1.8metres in height and 7.47 metres in length. 2.The paling fence referred to in order 1 above will be constructed of metal upright poles with lapped or capped treated pine and will be constructed by Interloc Fencing and Screens in accordance with its quotation dated 21 July 2013. 3.The paling fence will be constructed between Point B on the sketch plan forming part of the settlement agreement between the parties dated 14 May 2014 and the corner boundary of the respective properties at the Gladstone Street end of the properties. 4.The parties will share the cost of the fence equally between them provided that the respondents shall not pay more than 50% of $2,574.47 (being the amount in the quotation from Interloc) inclusive of the amount paid by the respondents pursuant to the settlement agreement between the parties. 5.Application COM 14/4490 is dismissed. 6.The respondents will pay the applicant's costs as agreed or as assessed on the ordinary basis. Catchwords: Dividing Fence, Costs pending proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (the Act) Dividing Fences Act 1991 (DFA) Cases Cited: Cobiac v Liddy (1969) 119CLR257 Category: Principal judgment Parties: Josephine Rainbird (applicant) A and F Ghahyazi (respondents) Representation: Otto Stichter (for the applicant) Mr A Ghahyazi (self-represented) File Number(s): COM 14/15081 and COM 14/04101 reasons for decision Background to Jurisdiction 1Two applications were heard together. In one the applicant is Josephine Rainbird and the respondents Mr and Mrs A and F Ghahyazi (COM 14/04101) ("the first application"). In the second application the applicant is Mr A Ghahyazi and the respondent Josephine Rainbird (COM 14/15081) (the second application). I will refer to Miss Rainbird as the applicant and Mr and Mrs Ghahyazi as the respondents. 2In the first application the applicant seeks an order that a dividing fence be erected upon the common boundary between the applicants property which is lot 56 DP 810543 and the respondents property which is lot 57 in the same deposited plan for a distance of 21.945 metres between the buildings constructed upon lot 56 and lot 57 and otherwise as described in the fencing quotation dated 21 July 2013 of Interloc Fencing and Screens. In addition related orders were applied for and an order for costs. 3In the second application the respondents (as applicants) seek an order that no dividing fence is required as requested by the applicant in the first application. 4The parties spent sometime together before the commencement of the hearing and, as a result, reached agreed terms of settlement between them as to a proportion of the dividing fence in dispute between them. A signed copy of that agreement has been placed on the Tribunal's file. Essentially the parties agreed to the demolition and removal of the existing paling fence being 7.47 metres in length at the rear of the respective properties and to the construction of a replacement fence. It was further agreed as to the precise end points of the fence as identified in a sketch attached to the agreement and that the fence be constructed on the common boundary between the respective properties. The parties agreed on the nature of the fence, its height and that they would share costs between them equally. Costs of the proceedings were reserved. 5As a result the Tribunal was required by the parties to hear and determine the balance of the dispute between them, which concerns whether there should be a dividing fence from point B in the sketch plan referred to in the agreed terms of settlement to the front boundary of the properties. In other words, in light of the agreement, the applicant's application was amended to an application that there be a dividing fence from the street frontage to the point marked B in the sketch plan in the agreed terms of settlement and that the dividing fence be of the same nature and construction as the fence agreed in the terms of settlement, and that it be on the boundary line between the two properties. 6The applications are brought under the provisions of the Dividing Fences Act 1991 (NSW) ("the DFA") as amended and the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). The Tribunal has jurisdiction to hear and determine such applications. The First Application 7The first application was filed in the local court in 2013 and subsequently transferred to the Local Land Board and then to this Tribunal. The Tribunal made orders on 21 February 2014 for the respondent to bring a cross application and for the exchange of evidence. In addition an order was then made that the parties have leave to be represented. At the hearing Ms Rainbird was represented by a legal practitioner and Mr Ghahyazi represented himself as well as his wife. He submitted to the Tribunal a written authority from his wife to represent her. 8The applicant's evidence in the first application consisted of: (1)Exhibit A being a statutory declaration of the applicant dated 5 March 2014. (2)Exhibit B being a statutory declaration of Glen Paul Guest dated 4 March 2014. (3)Exhibit C a statutory declaration of Kaylee Hazell dated 5 March 2014. (4)Notice to Carry out Fencing Work under section 11 of the DFA. 9In addition the applicant tendered a copy of the ledger of the applicant's solicitor and a tax invoice of the applicant's solicitor dated 13 December 2013 in support of an application for costs. The applicant's representative also handed up written submissions. 10The applicant gave sworn evidence to the effect described in the following paragraphs. 11The applicant's premises are currently leased and tenants occupy the premises which are residential premises. The applicant requires the erection of a 1.8 metre high paling fence in the laneway between her building and the respondent's building to be built along the boundary line from the street frontage boundary to the point marked B on the terms of settlement referred to earlier. This laneway is approximately 1 metre in width. However, the boundary line between the two buildings varies such that at the street frontage end the applicant's building is approximately .3 metres from the boundary line and at the northern end (near point B indicated earlier) the distance between the applicant's building and the boundary line is approximately .24 metres. Along a portion of the applicant's building there is a section which is indented and therefore the distance between the indented section of the applicant's building and the boundary line is considerably wider. There has been no fence between the two buildings but there is a gate at the street frontage end between the two buildings, which currently gives access from the street to the laneway between the two buildings. The applicant has owned the property since 2009 and since her ownership there has been no fence in the laneway between the two buildings. The respondents purchased the property in 2013 and thereafter commenced some renovations to the laneway. 12The applicant's evidence was that during the course of the renovations the respondents purported to lock the gate upon the basis that they had ownership of the laneway. Mr Ghahyazi offered to give the applicant and her tenants access to the laneway by unlocking the gate if they so required. The respondents also undertook work in the laneway (including installing a drain between the two houses) and concreting the area between the walls of the two houses. This work was undertaken without the prior knowledge of the applicant. 13The statutory declaration of the tenant, Ms Hazel stated that during the renovations the laneway between the two houses was busy with workman walking up and down and that Ms Hazel had to close the blinds to a window for privacy. Her statutory declaration also said that the respondents' tenants who occupy the respondents' property use the lane to gain access from the street to the rear of the respondents' property. Her statutory declaration said that they make noise when they walk down the laneway at night. 14The applicant's evidence was that she wanted the fence constructed so as to ensure privacy. The fence would block out the view of someone walking along the laneway who might otherwise look through the window. She also stated that in respect of the indented area described earlier she thought that one day she might build an atrium and be able to better utilise that space. It would involve garbage bins which currently occupy the indented area being placed along the front patio. She stated that it was common in the neighbourhood for garbage bins to be on the front patio. 15The applicant acknowledged that there was a hot water system and a water metre attached to her building. It may be necessary for trade's people to have access to both. Although the gap between her building and the proposed palling fence would be narrow it was the applicant's view that the gap was wide enough to enable trades people to have access to these services. 16Attached to the original application filed at the local court was a notice under section 11 of the Dividing Fences Act 1991. The applicant's case was that notice had been served on the respondents and the respondents acknowledged receipt. In addition attached to the application was a quotation from Interloc Fencing and Screens for the sum of $2,574.47 and the respondents acknowledged receipt of that quotation. If an order were to be made in favour of the applicant the amount which the applicant could obtain from the respondents would necessarily be reduced because the quotation relates to the full length of the boundary line whereas the position now is that the parties have agreed to a dividing fence along a portion of the boundary line. 17The applicant therefore sought from the respondents a 50% contribution to the cost of the proposed fence, namely 50% of $2,574.47 (inclusive of GST) reduced proportionately having regard to the settlement agreement. Respondents' case 18The respondent, Mr Ghahyazi gave sworn evidence. His evidence included the documents he had filed in the second application. They consisted of a letter to the Tribunal marked Exhibit 1 to which is attached emails as well as some photographs. Exhibit 1 comprises of 11 pages. 19The respondents' objections to the applicant's requirement for a fence to be constructed in the laneway were to the effect set out in the following paragraphs. 20The respondent said that the gap between the proposed fence and the applicants building was so narrow as to create problems which would impact upon him. He said that there was insufficient space in the gap for tradespeople engaged by the applicant to gain access to the narrow area between the applicant's property and the proposed fence. He feared that calls would be made upon him to cooperate. He did not see any purpose in having the fence. He also feared that the narrow gap between the proposed fence and the applicant's building would be a place where rubbish would collect and that it would be very difficult for the applicant to have it cleared. He feared that this could impact upon him if this space was a habitat for vermin. 21With respect to the applicants concern about privacy, the respondent said that he would be prepared to build a fence adjacent to the indented area (where the proposed atrium was intended to be) so that anyone walking along the laneway would not be able to look into the window of the applicants property. However, this fence would not be on the boundary line but rather on the applicant's property and was designed to fill in the atrium area to create a continuous line along the applicants building. 22The respondents also said that they wanted a gate at the front of the property across the laneway and that either he or his tenant would hold the key to enable the applicant or her tenants to have access from time to time. 23In short the respondents submitted that the proposed fence was unnecessary, served no purpose and would cause the presence of rubbish and vermin. Findings 24Section 6 of the Act is in these terms: General principle-liability for fencing work (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 result 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. 25Section 4 of the Act is in these terms: 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. 26Section 7(1) of the Act is in these terms: Contribution as between adjoining owners-generally (1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. 27I find that there is no sufficient fence between the applicant's and the respondents' respective properties. In coming to this finding I have had regard to all the circumstances of the case before me as required by s 4. In particular I have had regard to the privacy concerns of the applicant and her concern to potentially maximise the use of her portion of her property by one day building an atrium area. 28I have considered the respondents' submissions but find they do not outweigh the legitimate concerns of the applicant. 29I am satisfied that an appropriate notice under section 11 of the Act was served on the respondent and that I am in a position to make an order under s 14(1)(b) and (c) of the DFA for the fencing work to be carried out and the costs apportioned between the parties. 30Accordingly, I propose to make an order in respect of the balance of the boundary line of 14.475 metres in length. That length is calculated by taking the full length of the boundary line of 21.945 metres less the length the subject of the agreement between the parties namely 7.47 metres. The details of the order will be in the same terms as contained in the settlement agreement and the respondent will be obliged to contribute no more than 50% of $2,574.47 less the amount paid or payable by the respondent under the settlement agreement dated 14 May 2014. 31The second application will be dismissed. Costs 32The applicant's representative sought an order that the costs of the applicant be paid by the respondents. 33The applicant relied upon s 23 of the DFA which states that the Tribunal "may award costs against either party". However, s 60 of the Act provides that each party to proceedings in the Tribunal is to pay the party's own costs (s 60(1)). The Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs (s 60(2)). S60(3) states: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 34In addition, it is relevant to note that rule 38 of the Civil and Administrative Tribunal Rules 2014 (the Rules) makes specific provision for the payment of costs in respect of proceedings that are allocated to the Consumer and Commercial Division of the Tribunal. These applications are allocated to that division. Rule 38(2) states that despite s 60 the Act the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if the amount claimed is more than $10,000 in certain circumstances and if above $30,000.00 more generally. Here the amount claimed is less than $10,000.00 and therefore this rule does not apply. 35The effect of s 60(3)(g) of the Act is that in determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to "any other matter that the Tribunal considers relevant". The matters referred to in s 60(3)(a), (b), (c), (e) and (f) concern the conduct of a party. For example subsection (a) refers to conduct which unnecessarily disadvantages a party. Subsection (b) refers to a party prolonging unreasonably the time taken. Subsection (d) is in a different category. It refers to the nature and complexity of the proceedings. However, these proceedings are ones to which Schedule 1; Division 3 of the Act applies. That schedule deals with "pending proceedings" namely proceedings that were commenced before the 1 January 2014 and have not been finally determined before that day by the court or existing Tribunal in which they were instituted or commenced. Clause 7 of Division 3 deals with pending proceedings which were not heard before 1 January 2014 by the court or existing Tribunal in which the proceedings were instituted or commenced. The Division applies to proceedings commenced before local land boards - see Clause 6(2). Clause 7(3) provides that NCAT has and may exercise all the functions that the relevant existing Tribunal had immediately before its abolition and that the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings, had this Act or the relevant amended Act not been enacted continue to apply. 36As stated earlier, these proceedings were commenced in 2013 in the Local Court and later transferred to the local land board. They are therefore proceedings to which Schedule 1, Division 3 of the Act applies. The effect of clause 7(3) is that the Tribunal may exercise the power given by s 23 of the DFA. In such proceedings the provisions of s 60 and of the Rules have no role to play. 37Here the applicant sought costs in her application to the Local Court and obtained the Tribunal's leave to have legal representation. The applicant has been successful in the proceedings and therefore should have her costs paid. In coming to this view I am mindful of the requirements of s 36 of the Act which require the Tribunal to give effect to the "guiding principle" set out in s 36(1) when it exercises any power given to it by the Act. I note s 36 is modified to an extent by s 36(5) which provides: However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 38Having regard to the provisions of s 36(5), I am of the view that the applicant is entitled to her reasonable costs as agreed with the respondent or if not agreed as assessed. Orders are made accordingly. S Westgarth Deputy President Civil and Administrative Tribunal of New South Wales 30 May 2014 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 August 2014