Noorbergen v Henderson [2017] NSWCATAP 118

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Noorbergen v Henderson [2017] NSWCATAP 118 Hearing dates: 26 April 2017 Date of orders: 24 May 2017 Decision date: 24 May 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Kearney, Senior Member Decision: (1) The appeal is dismissed. Catchwords: Section 11 notices, jurisdiction of Tribunal, agreements, section 26 Legislation Cited: Dividing Fences Act 1991 Cases Cited: Larney v Johannson [2013] NSWCA 409 Texts Cited: Nil Category: Principal judgment Parties: Marcus Noorbergen (Appellant) Daniel Henderson (Respondent) Representation: Solicitors: In Person (Appellant) In Person (Respondent) File Number(s): AP 17/05605 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 24 January 2017 Before: P Hunter, General Member File Number(s): COM 16/54806

reasons for decision

Introduction 1. This is an appeal from a decision (which we will refer to as the Decision) made in the Consumer and Commercial Division of the Tribunal, which was published on 24 January 2017. The appellant was the applicant in those proceedings. The Decision was brief and stated the following: "1. The application is dismissed because: ● The Tribunal has no jurisdiction to determine the application. There has been no notice in compliance with s 11 of the Divided (sic) Fences Act 1991 served. Further, as the fencing work has been completed and paid, and the work was not urgent in accordance with s 9 of the DF Act, the Tribunal is unable under the Act to make an order in respect of the works and contributions." 1. The application of the appellant was filed in the Consumer and Commercial Division on 16 December 2016 and came before the Tribunal for the first time on 24 January 2017. No directions had been made by the Tribunal between the time the application was filed and the time the Decision was published on 24 January 2017. 2. The application was brought for orders under the Dividing Fences Act 1991 (DF Act). The application sought an order "determining the manner in which contributions for the fencing work are to be apportioned or reapportioned between the parties or the amount that each adjoining owner is liable to pay for that work". The application stated that a fencing notice had been served and purported to attach a copy of the notice to the application. The application form requires such a notice to be attached to the application. In addition, the applicant sought an order for compensation "for loss of occupation of any land". The documents attached to the application were the following: 1. A letter to the Tribunal dated 14 December 2016; 2. The extract of a text message; 3. The extract of an email from the respondent; 4. A quotation dated 6 July 2016 from J & R Fencing Contractors addressed to the applicant; 5. A letter dated 4 October 2016 from the applicant to the respondent requesting payment of the sum of $3,716.67; 6. Some evidence concerning payment of J & R Fencing Contractors; 7. A letter to the respondent dated 31 October 2016 headed "Letter of Demand Relating to the Dividing Fence Act 1991"; 8. A letter to the respondent dated 18 November 2016 headed "Second, and Final Letter of Demand Relating to the Dividing Fence Act 1991"; and 9. A number of photographs.