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. Notice of Appeal 1. The Notice of Appeal sets out the grounds of appeal. These may be summarised in the following terms: 1. The Tribunal "focused on s 11 and dismissed the case on a technicality", ignored evidence presented concerning ss 8 and 9 of DF Act; and 2. Further evidence which the applicant had at the hearing was "overlooked". 1. The form of the Notice of Appeal requires the appellant to state the orders which the appellant says the Appeal Panel should make. Here, the appellant stated that the Appeal Panel should "uphold sections 8 and 9 of DF Act and quash the original orders". 2. In addition, the appellant appeals on the basis that the Decision was not fair and equitable. The appellant stated that s 9 of the DF Act was not dealt with at the hearing but was included in the Decision. 3. A further ground of appeal was that the Decision was against the weight of evidence. The appellant referred to an email from the respondent to the applicant but did not identify the email to which this aspect of the Notice of Appeal refers. The Notice of Appeal also stated that no evidence was given at the hearing and no documents were "shown" at the hearing. 4. The Notice of Appeal seeks the Appeal Panel's leave to rely upon fresh evidence from two witnesses concerning ss 8 and 9 of the DF Act. Reply to Appeal 1. The respondent has filed a Reply to Appeal which may be summarised as follows: 1. The parties mutually agreed to have J & R Fencing Contractors (J & R) construct the fence but the appellant did not have J & R construct the fence. Rather, the appellant's friend did so with the assistance of the appellant; 2. Part of the cost which the appellant claims from the respondent was caused by faulty drainage from the appellant's property requiring twelve extended posts. The respondent denies liability for contribution towards the cost of those posts; and 3. During the course of the work the appellant damaged the respondent's retaining wall causing damage estimated to cost $13,000.00 to repair. An engineer's report concerning the damaged wall was attached to the Reply to Appeal. Appellant's Submissions 1. The appellant filed a disc recording the hearing on 24 January 2017 and written submissions, which may be summarised as follows: 1. The appellant confirmed he was seeking leave to rely on fresh evidence, namely two witness statements concerning ss 8 and 9 of the DF Act; 2. The appellant submitted that a notice under s 11 of the DF Act is not required where s 9 applies; 3. The appellant submitted that he should have an order for the respondent to pay the whole of the fencing costs, namely $7,570.00; 4. The appellant submitted that an agreement had been reached between the appellant and the respondent for the fencing works to be done. This was confirmed by the appellant's letter to the respondent dated 23 July 2016; 5. The service of a notice under s 11 of the DF Act was impracticable for a number of reasons. The need to have the fence reinstated became urgent because of the presence of the respondent's two large dogs intruding onto the appellant's property. In addition, the lack of fence created a security issue and intruders have trespassed upon the appellant's property. The issue of a notice under s 11 would have caused delay in waiting for the notice period to expire and further delay would have been experienced in waiting for the Tribunal to make an order. Accordingly, the appellant submitted that he needed to have the fencing work conducted without delay. It was completed on 1 October 2016; and 6. The appellant submitted that he had incurred considerable costs and included in his submissions a claim for costs in the sum of approximately $15,000.00. 1. At the appeal hearing the appellant elaborated upon his written submissions. Respondent's submissions 1. The respondent provided written submissions. These submissions were to the same effect as the Reply to Appeal (summarised above). At the hearing of the appeal the respondent elaborated upon the Reply to Appeal and his oral submissions as follows: 1. The parties had an agreement between them by which it was agreed that J & R would be engaged to construct the fence along the boundary line between the two parties. The respondent submitted that the applicant did not adhere to that agreement. Rather, he engaged a friend to build the fencing work. Therefore the amount claimed by the appellant (being half of the amount in the J & R invoice) is excessive because the amount which the appellant in fact incurred was less than the amount of the J & R invoice; 2. Part of the amount claimed by the appellant was for twelve extended posts. The respondent disputes any liability for contributing to the costs of these posts on the basis that they only became necessary because of the effects of construction work undertaken by the appellant; 3. The work undertaken by the appellant in constructing the fence also damaged a retaining wall belonging to the respondent and the respondent seeks to claim a sum of money as compensation for the repair of that retaining wall. Appeal Framework 1. The Civil and Administrative Tribunal Act 2013 (NCAT Act) sets out the basis upon which decisions of the Tribunal may be the subject of an appeal. This is an internal appeal pursuant to s 80(2)(b) of the NCAT Act. An internal appeal may be made as of right on any question of law, but only with leave of the Appeal Panel on any other grounds. 2. Appeals on any other grounds from decisions made in the Consumer and Commercial Division are governed by Sch 4, cl 12 of the NCAT Act. This clause provides that an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Section 81 of the NCAT Act sets out the orders which the Appeal Panel may make on an appeal. The Appeal Hearing 1. At the hearing of the appeal, the appellant sought leave to adduce fresh evidence. That evidence was obtained after the hearing on 24 January 2017 and concerned statements from third parties. At the hearing we refused to accept that evidence on the basis that there was no evidence before us that that evidence was not reasonably available before the hearing. 2. At the appeal hearing we sought from both parties an understanding of the basic facts which has led to this dispute. Those facts (which are not in dispute) are as follows: 1. On 6 July 2016 a quote was obtained from J & R. That quotation described the work to be undertaken and the proposed costs, namely $6,970.00; 2. An email was sent by the respondent to the appellant dated 13 July 2016 setting out a proposal for construction of the fence; and 3. A letter was sent by the appellant to the respondent dated 23 July 2016. That letter runs for several pages. It includes the statement that the appellant has selected J & R and the proposal that the appellant will pay the first instalment of 50% and that the respondent pay the final amount at the end of the project. 1. We were informed by the appellant that he paid the first instalment and has subsequently paid the whole of the amount due to J & R. We were also informed by the appellant that following the letter of 23 July 2016 and before the initial payment on 1 August 2016, the parties met and agreed that the appellant would pay 50% before the work started and the respondent would pay the remaining 50% on completion of the work. Consideration 1. As stated by the Court of Appeal in Larney v Johannson [2013] NSWCA 409, the DF Act regulates the apportionment between adjoining owners of the cost of a dividing fence. Section 6 sets out the general principle, which is that 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 results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. 2. Section 7 states that adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence but makes further provision for the case where an adjoining owner desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence. 3. Section 8 states that despite s 7, an adjoining owner is liable for up to the whole of the cost for fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner. 4. Section 9 applies to a dividing fence that has been damage or destroyed (in whole or in part) and in the circumstances requires urgent fencing work. Section 9(2) provides that if it is impracticable to serve a notice under s 11 in respect of a dividing fence to which this section applies, an adjoining owner may, without servicing such a notice, carry out the urgent fencing work required to restore the dividing fence. The section goes on to make provision for the other adjoining owner to be liable for half the cost (or a greater proportion if s 8 applies) of the urgent fencing work. Any such liability may be reviewed by the Local Court or by this Tribunal on the application by that owner to the Court or the Tribunal within one month after the work has been completed (or within such later period as the Court or Tribunal may allow). 5. Section 11 states that an adjoining owner may require the other adjoining owner to contribute, under the DF Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner. The section sets out those matters which must be included in the notice. For example, the type of fencing work proposed is required to be included as well as the estimated cost of the fencing work. Section 11(5) provides that an adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence: 1. carried out before a notice under this section is served on the adjoining owner (unless s 9 applies or the notice is served in accordance with s 22), or 2. carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owner 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 Tribunal. 1. Section 12 provides that if adjoining owners do not agree within one month after one of them has served a section 11 notice as to the fencing work to be carried out, either owner may apply to the Local Court or to the Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out. 2. Section 13 provides that the Local Court or the Tribunal has jurisdiction to hear and determine any matter arising under the DF Act. Section 14 sets out the orders which the Tribunal (or Local Court) may make. 3. Section 26 provides that nothing in the DF Act affects: 1. any covenant or any contract or agreement (other than an agreement arising under this Act) made between adjoining owners in respect of a dividing fence before or after the commencement of this Act, or 2. any law relating to retaining walls, easements of support or other rights of support in relation to land, or 3. provisions relating to fences or fencing work made by or under any other Act. 1. Accordingly, in general terms it may be said that if adjoining owners reach an agreement concerning the construction of and payment for a dividing fence, that agreement may be enforced in a Court having jurisdiction. Such an agreement is not capable of being enforced in the Tribunal because the Tribunal's jurisdiction is limited by the provisions of s 13. The effect of the above sections is that the Tribunal does not have jurisdiction under the DF Act unless a s 11 notice has been served, except where s 9 applies. 2. In this case, the following questions arise: 1. Did either party served a notice conforming to s 11? 2. If so, is the respondent liable to contribute to the cost of the fencing work; 3. If not, does s 9 apply? 1. None of the documents attached to the application, in our view, constitute a s 11 notice. We have listened to the sound recording and note that the Member took the same view. The Member asked the appellant to identify the s 11 notice and the appellant initially identified the respondent's email of 13 July 2016 and then his letter of 23 July 2016. The Member is recorded as stating that those communications do not constitute s 11 notices. 2. At the appeal hearing we were taken to the respondent's email dated 13 July 2016, which stated that the respondent recommended fencing 65 metres. The work for which the appellant now seeks contribution was for a longer metreage. In our view, the respondent's email of 13 July 2016 does not constitute a s 11 notice. Not only was the length of the fence different from that which was ultimately constructed but also the respondent merely communicated his recommendation rather than stating his requirement (see s 11(1)) and the email does not contain the estimated cost of proposed work (see s.11(2)(c)). 3. We have considered the appellant's letter of 23 July 2016 and are of the opinion that that letter does not constitute a notice as required under s 11 of the DF Act. The letter runs for six pages. On the first page the appellant states that he does not have to share any costs relating to fencing because of "covenants sections of title". The letter also describes some practical problems which have to be addressed before fencing work can be conducted, including the need for extended posts. The letter proposes that the full length of the fence be fenced in two stages, with stage two being completed in March and April of 2017. The letter states that the appellant will pay for any "additional extras" and proposes that the respondent pay for additional extras "relating to you". The appellant states that he will not pay for the respondent's mistakes and refers to work having already been conducted by the respondent in relation to a retainer wall. The letter states that the appellant has chosen J & R and then proposes that the appellant will pay the first instalment of 50% plus all the extras to get the job done and that the respondent should pay "the final funds at the end of the project". 4. In our view, the letter contains details of what the appellant proposes and the reasons for coming to the views expressed. However, there are qualifications in the letter and it is not clear what the respondent's ultimate liability will be. In particular, the letter does not state precisely what the appellant requires the respondent to contribute. Accordingly, in our view, the Tribunal was correct in coming to the conclusion that there was no s 11 notice issued. Such a notice is a precondition to an application to the Tribunal for orders under s 14 (see s 12(2) and Larney par 10). 5. The Tribunal also found that work was not urgent and therefore the provisions of s 11(5) apply rather than the provisions of s 9. In our view, no error has been displayed by the Tribunal in coming to that conclusion. There are two relevant requirements for the operation of s 9. The first is that service of a notice under s 11 must be "impracticable". Here, the parties were in communication both orally and in writing. There is no evidence to demonstrate that service of a s 11 notice was impracticable. The second relevant requirement is that the circumstances require urgent fencing work. The appellant's letter of 23 July 2016 discloses that J & R have a "lead time" from two to three weeks to start the works. There was evidence that the work was not completed until 1 October 2016. In our view, these facts do not reflect urgency. We acknowledge that the appellant was keen for the work to be done, particularly in view of concerns about the respondent's dogs, but in our view the circumstances do not satisfy the requirements of s 9 for the reasons stated. 6. Our conclusion is that no question of law has been raised in the appeal and that the provisions of cl 12 of Sch 4 of the NCAT Act have not been satisfied. Accordingly, the appeal must be dismissed. 7. As stated earlier in these reasons, if the appellant is able to establish that an agreement was reached between himself and the respondent, then that agreement may be enforceable and, as s 26 of the DF Act makes clear, such an agreement is not affected by the operation of the DF Act. The appropriate forum for a consideration of that claim would be the Local Court. 8. Had a s 11 notice been issued and had the parties reached an agreement following the issue of the s 11 notice, the parties may have been able to apply under s 12 to the Tribunal for an order. However, in this case, there was no s 11 notice. 9. The Appeal Panel will make an order dismissing the appeal. Orders 1. The Appeal Panel makes the following order: 1. 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: 24 May 2017