Draper v Gibbs [2014] NSWCATAP 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Draper v Gibbs [2014] NSWCATAP 54 Hearing dates: Determined on the papers. Decision date: 23 September 2014 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A P Coleman SC, Senior Member Decision: (1)Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the requirement for an oral hearing of the appeal be dispensed with and the matter be heard on the papers. (2)Leave to appeal on grounds 3 and 5 refused. (3)Appeal allowed. (4)Set aside the orders of the Tribunal made 23 May 2014. (5)Remit the matter to the Tribunal constituted by a member other than the member who made the original decision, to be determined in accordance with these reasons and otherwise according to law. (6)The Drapers are not to be ordered to contribute to any costs for the relocation of the Colorbond pool fence (should Mr Gibbs decide to relocate it or it is necessary to do so) built by Mr Gibbs in compliance with the Pool Safety Order issued to him by Sutherland Shire Council on 22nd May 2014. (7)Mr Gibbs is to pay the Drapers' costs of the appeal in the amount which the parties agree or which are assessed and in any event not to exceed $2000. Catchwords: APPEAL - Civil and Administrative Tribunal (NSW) - question of law. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Crown Lands Act 1989 (NSW) Dividing Fences Act 1991 (NSW) Swimming Pools Act 1992 (NSW) Cases Cited: Alwiah v Watts & Anor [2004] NSWSC 948 Brown v Doyle [2012] NSW SC 1269 Larney v Johannson [2012] NSWSC 1297 Larney v Johannson [2013] NSWCA 409 Collins v Urban [2014] NSWCATRP 17 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Rainbird v Ghahyazi [2014] NSWCATCD 92 NSW Land & Housing Corporation v Diab [2014] NSWCATAP 8 Category: Principal judgment Parties: I and S Draper (Appellants) I Gibbs (Respondent) File Number(s): AP 14/0225 Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-23 00:00:00 Before: P Boyce, Senior Member File Number(s): COM 14/00233