Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Turra v Biggin [2014] NSWCATCD 187 Hearing dates: 19 August 2014 Decision date: 03 October 2014 Before: P Boyce, Senior Member Decision: 1.The application is dismissed Catchwords: Jurisdiction Legislation Cited: Civil and Administrative Act 2013 Dividing Fences Act 1991 Cases Cited: None Texts Cited: None Category: Principal judgment Parties: John Turra (applicant) Mark Biggin (respondent) File Number(s): COM 14/20765 Publication restriction: None reasons for decision BACKGROUND 1The applicant is the owner of 35 *****Avenue Ryde (called in these Reasons for Decision "the applicant's land"). 2The respondent is the owner of 37 *****Avenue Ryde (called in these Reasons for Decision "the respondent's land"). 3The applicant's and the respondent's lands adjoin and they share a common boundary. 4Along the common boundary there was a hardwood paling fence about 53.5 metres long. 5On 14 April 2014 the applicants served on the respondent a notice pursuant to s 11 of the Dividing Fences Act 1991 (called in these Reasons for Decision "the Notice"). 6The Notice proposed that fencing work be carried out as follows: (1)Properties affected (street address) (a)Applicant's land; (b)Respondent's land (2)The fencing work proposed: (a)The fencing work be carried out on the common boundary of the adjoining lands described above. (b)The fencing work consists of building a 53.5 m long, 1.8 m high colorbond fence. The fence is to be built by TopNotch Installations & Maintenance. Quotation attached. (c)The estimate cost of the fencing work of $4,200.00 be born in equal proportions. 7The respondent did not agree to the proposed fencing work as set out in the Notice. APPLICATION 8On 22 April 2014 the applicant filed an Application to NCAT seeking orders in accordance with the fencing work proposed in the Notice (called in these Reasons for Decision "the Application") plus "the removal and disposal of the remaining 21 m of fencing [at the respondent's cost]...as I have already removed and disposed of the initial 33 m." 9The Dividing Fences Act 1991 requires a period of one month to elapse after a notice to carry out fencing work is served. 10The application was filed at least18 days after service of the Notice. 11The respondent does not raise the issue of the application being filed prematurely. 12The applicant seeks to proceed with his application. To do so requires leave of the Tribunal. 13The Tribunal derives its powers from the Civil and Administrative Act 2013 ("NCAT Act") and legislation granting jurisdiction to the Tribunal. In this case, the Dividing Fences Act 1991 ("DFA Act"). 14S 11 of the DFA Act provides: Notice to carry out fencing work (1) An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. (2) The notice is to specify the following: (a) the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work, (b) the type of fencing work proposed to be carried out, (c) the estimated cost of the fencing work. (3) The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions. (4) The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice. (5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: (a) carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or (b) carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal. 15S 12 of the DFA Act provides: Procedure when agreement not reached (1) Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work). (2) If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out. 16Unless and until a period of one month elapses after the service of a notice pursuant to s11 a land owner cannot bring an application to the Tribunal unless pursuant to s9 of the DFA Act, which provides: Contribution when urgent fencing work is required (1) This section applies to a dividing fence that has been damaged or destroyed (in whole or in part) and in the circumstances requires urgent fencing work. (2) If it is impracticable to serve a notice under section 11 in respect of a dividing fence to which this section applies, an adjoining owner may, without serving such a notice, carry out the urgent fencing work required to restore the dividing fence. (3) The other adjoining owner is liable for half the cost (or a greater proportion if section 8 applies) of the urgent fencing work. (4) Any such liability may be reviewed by the Local Court or the Civil and Administrative Tribunal on the application by that owner to the Court or the Tribunal within 1 month after the work has been completed (or within such later period as the Court or the Tribunal may allow). 17There is no evidence before the Tribunal that the proposed fencing work is urgent for the purposes of the DFA Act and therefore the provisions of s 9 do not apply. In any case the applicant has served a notice pursuant to s 11 on the respondent. 18The Tribunal has no jurisdiction to hear and determine an application for fencing orders under the DFA Act unless and until the requirements of the DFA Act are complied with. 19The Tribunal considers whether the premature filing of the application is capable of remedy. To do so requires legislative power. 20S 41(1) of the NCAT Act provides: (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. 21S 41 empowers the Tribunal to extend the time for the doing of an act under legislation for which the Tribunal has jurisdiction. 22The NCAT Act does not provide for the Tribunal exercising its discretion to shorten the time for doing an act under legislation. 23Accordingly, the Tribunal has no jurisdiction to hear and determine the matter before it as the application has been field prematurely. No jurisdiction exists until a valid application is filed. The Tribunal has no power or discretion to remedy the defect in the application. 24The application is dismissed. P Boyce Senior Member Civil and Administrative Tribunal of New South Wales 3 October 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: 10 December 2014