Thompson v Mundey [2017] NSWCATCD 53

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thompson v Mundey [2017] NSWCATCD 53 Hearing dates: 14 June 2017 Decision date: 06 July 2017 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose – General Member Decision: 1. The application is dismissed with no order as to costs. Catchwords: Dividing Fences Legislation – whether there has been substantial compliance with an order of the Tribunal. Legislation Cited: Dividing Fences Act 1991 ss. 15 and 16. Category: Principal judgment Parties: Roger Thompson – Applicant Jeremy Mundey – Respondent Representation: Both parties appeared in person File Number(s): COM 17/15193 Publication restriction: Nil

reasons for decision

Background 1. By an application dated 27 June 2016 the respondent Jeremy Mundey sought an order requiring that the current wooden fence between his property and that of the applicant herein was disintegrating and dangerous. He sought an order that a new fence be erected in the same position as the existing fence which would be approximately 25 metres in length. The application proposed an option of either a colorbond fence or a timber fence with difference prices for each. Mr Mindey stated that he would be agreeable to any fencing contractor that Mr Thompson wished to use if agreement could be reached as to the type of fence. 2. That application was heard and determined by Senior Member J Smith and on 8 September 2016 the following orders were made:- 1. a new timber fence is to be constructed on the boundary line between the applicant's and the respondent's adjoining land in accordance with the scope of works specified in the quotation provided by Active Fencing dated 23 January 2016 to replace the existing timber fence. 2. the respondent is to contribute $1,437.50 towards the cost of the new fence. 3. (subject to availability of the contractor the fencing work is to commence not later than 31 October 2016. 4. the fencing works to be carried out in a good and workmanlike manner using new materials. The contractor must be appropriate qualified and licensed. 5. the applicant must pay the whole cost of the fencing work to the fencing contractor on or before the date of completion of the work and will be the only party to give instructions to the fencing contractor in relation to carrying out of the fencing work. 6. the respondent shall pay the applicant the sum of $1,437.50 referred to order 2 on the day of completion of the fencing work without deduction or allowance. It is noted that both parties were in attendance when the matter was heard and the orders were made. 1. On 8 September 2016 Mr Thompson wrote to the Tribunal questioning the order and indicating that he believed a figure of $1,001.00 was read out rather than $1,437.50. He was advised on 12 September 2016 that the order was correct and the sum to be paid was one half of the sum mentioned in the quote provided by Active Fencing. 2. On 28 September 2016 Mr Thompson again questioned the amount referred to in the order and suggested that the quote was for a colorbond fence. 3. On 23 October 2016 Mr Mundey wrote to the Tribunal indicating that the fence had been completed on 27 September and had been fully paid for by himself and his wife. He noted that he had not received any payment from Mr Thompson and asked advice as to how the matter should progress further. A certified copy of the money order was issued and dated 31 October 2016 although on 4 October Mr Thompson had lodged a request for a sound recording of the Hearing. 4. On 26 October 2016 Mr Thompson wrote to Mr Mundey complaining about inferior qualify timber and defective work on the fence. He wrote again on 13 December 2016 and on 14 February 2017 he wrote to the Tribunal complaining that the works had not been completed in a good and workmanlike manner and indicating that he would seek to renew the proceedings because the works had not been properly completed. He sought a temporary stay of the Court order for recovery of the monies. 5. On 24 February 2017 Mr Thompson was advised the decisions of the Tribunal were final and binding but that in limited cases there may be an application to set aside those orders. He was advised the decision could not be reconsidered on the basis of his correspondence. On 31 March 2017 Mr Mundey was advised that the matter had been finalised and the orders could not be amended to add additional parties. 6. The certified money order was lodged with the Local Court at Parramatta and on 16 November 2016 a judgment was entered in favour of the present respondent Jeremy Mundey and against the present applicant, Roger Thompson in a total sum of $1,678.57 which included filing fees and interest claimed. 7. On 3 March 2017 Mr Thompson wrote to the Tribunal indicating that he had sought legal advice and had consequently filed a set aside form but on the advice of the solicitor he requested confirmation that the application had been lodged on the correct form. The set aside application was considered on 13 March 2017 and then refused because the decision was not made in the absence of the applicant and the application for set aside was not made in time.