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. Application 1. By an application dated 5 February 2017 Mr Mundey sought an order for renewal of the application heard on 8 September 2016 in matter COM/30430. He based his application on the allegation that several palings on the fence were not nailed properly and were only attached partly to the rails and that faulty material had been used and further the fence had not been constructed in a workmanlike manner with the result the palings were warping and separating from the rails. He also claimed that the paling finish was uneven with bark still present on the wood and with some parts split. He commented on a high number of knots and knot holes in palings and rails as well as broken edges on palings. He also claimed that there were large gaps between the palings where the original quote was for butted palings. He claimed that the fence was of an inappropriate design between neighbouring properties as there was a lack of privacy and that the palings needed to be lapped and capped. 2. When the application came before the Tribunal on 11 April 2017 directions were made and Member Charles noted that there was an allegation that fencing work was defective and a claim was being made against the adjoining owner (respondent) for defects and omissions in the work in accordance with s. 16(2) of the Dividing Fences Act 1991. 3. The applicant was directed to provide all documents on which he sought to rely at the Hearing by 9 May 2017 and the respondent was directed to provide all documents on which he wished to rely by 6 June. The directions enabled a party to apply for an extension of time if necessary but also made it clear that a failure of a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on documents at the Hearing unless heave was granted to do so. 4. An application was made by Mr Thompson for an extension of time and the time for compliance by the applicant was extended to 1 June 2017 with the time asked by the respondent being extended to 10 June 2017. The matter remained listed for hearing on 14 June 2017. Applicant's Evidence and Submissions 1. At the commencement of the Hearing Mr Thompson was asked what orders he sought from the Tribunal and he replied that he wished to have the existing fence demolished and replaced with a colorbond fence. He was informed that his only claim for relief would be dependent upon the provisions of s. 16 of the Dividing Fences Act and that he would not be able to seek the relief he was hoping for. He was then taken through the evidence he had provided in accordance with the directions. 2. By a letter dated 3 October 2016 Mr Mundey requested payment of a total of $1,512.50 which included an additional charge of $150.00 for five core holes which had been split between the parties. That tax invoice detailing those additional charges was provided as an annexure to the letter from Mr Mundey. Mr Thompson annexed further communications between the parties in which allegations were made by him that large knots and cracks were present in some rails thereby weakening the structure and the palings were full of knots and some had already fallen off. He claimed that due to inferior quality of the wood palings had started to buckle and the fence had become ineffective at reducing noise between the properties, further that neighbouring properties could see each other or see each other's backyards through the fence. Mr Thompson claimed that the problem would worsen and the gaps would need to be closed and therefore palings needed to be lapped and capped to negate the effects of further warping. Mr Thompson claimed that palings had been milled with bark still on the wood and this timber needed to be replaced as he intended to paint the fence. He claimed that some palings had been struck with a heavy object and left damaged to the surface and broken edges. In all Mr Thompson alleged that the fence was far from complete and needed work to be completed in a professional manner. 3. Mr Thompson also claimed that the respondent had "brought a potential termite problem into the properties" noting that termites were busy in the area. 4. A follow up letter was sent to Mr Mundey on 13 December 2016 and a reply from Mr Mundey on 19 December 2016 claimed that the fence had been completed to a proper standard. 5. On 30 January 2017 Mr Mundey wrote to Mr Thompson noting that he had obtained a judgment in the Local Court and was about to issue a garnishee order for a total amount of $1,678.57. Immediate payment was requested and in the event that payment was not received by close of business on 31 January 2017 Mr Mundey intended to seek a levy of property. 6. Two building reports or pre-purchased reports were obtained. The first was from Diamond Property Inspections which was apparently undated but which was carried out by Fadi Keyrouz. A further building report was obtained from Childs Property Inspections following an inspection that took place on 1 May 2017. 7. The relevant of details of these reports will be discussed further in addressing the issues to be determined in the matter. 8. In addition to the inspection reports Mr Thompson provided a number of photos which were unfortunately not captioned or dated. It is clear that these photos were taken prior to any rectification work being undertaken by the contractor engaged by the respondent and this must be taken into account when considering the applicant's evidence. Short descriptions of each photograph were contained in the index to the submissions. The photographs clearly show that the fence has been constructed of treated pine with three rails. The respondent's evidence suggests that would be preferable to hardwood fencing. The scope of works was in accordance with the quote of Active Fencing and there is nothing to suggest that the fence was not constructed in accordance with that general scope of works. 9. Mr Thompson has attached a quote for a new lapped timber fence or a capped and lapped fence from Amazing Timber Fencing and Aussie One Pty Ltd (fencing) respectively. This material is of no assistance as the order was made in 2016 and it cannot be set aside. The only issue relates to whether the order has been substantially complied with. Respondent's Evidence and Submissions 1. The respondent, Jeremy Mundey provided a summary of events as part of his evidence. He claimed that not long after he had purchased the house, approximately four years ago, he spoke with Mr Thompson about having the timber fence replaced as many palings had fallen off and it was unsafe for children to play in the backyard. 2. It is claimed that once the Tribunal hearing had been allocated Mr Thompson built another colorbond to the rear of his property with a retaining wall as well. He allegedly relied on the presence of two colorbond fences in order to seek a further colorbond fence along the boundary with Mr Mundey. 3. It is alleged that after the Tribunal order came out on 8 September 2016 the new fence was constructed on 27 September 2016. On that day it is claimed that Mr Thompson came out on several occasions and advised the fencing contractors to stop work as he was disputing the Tribunal decision. A copy of the order was then shown to Mr Thompson indicating that the fence was to be built by Active Fencing and that Mr Mundey was the only person able to give directions. 4. Mr Thompson was provided with a copy of the invoice but he has constantly refused to pay his half of the price as ordered on 8 September 2016. 5. Mr Mundey speculated that palings had become loose as a result of Mr Thompson's son placing his soccer goals at the end of the fence and kicking the ball at the goals. There is however no evidence that this was the cause of the palings becoming loose. 6. It was noted that Mr Peter Carbon, the owner and manager of Active Fencing, was prepared to guarantee that all the timbers were H3 treated pine and that the palings were rough sawn which was standard for timber fences. 7. It is claimed that during the course of the Tribunal negotiations, Mr Thompson had offered to pay more than half of the cost of the fence if he got his choice of green colorbond fencing. 8. The final invoice for fencing was $3,025.00 which included an additional sum of $150.00 for five bore holes. 9. Mr Mundey provided copies of the Local Court judgment, the garnishee order and the notice of motion for a levy against the property. It is said that these actions have been put on hold pending the outcome of the Hearing in this Tribunal. 10. An email sent 18 May 2017 from Active Fencing to Ms Donna Mundey sought to address many of the issues raised by Mr Thompson but it must be assumed that the author, Mr Carbon, has an interest in defending the quality of his work. 11. The respondent provided a number of photographs including a series of photographs of the previous fence which showed substantial gaps. 12. A number of photos were provided in the applicant's case but these were of a general nature showing large areas of the fence and no detail. 13. Letters exchanged between the parties were provided in the respondent's evidence, along with two documents from Peter Carbon, owner/manager of Active Fencing and Access Timber Co. Pty Ltd. It was reported in this communication that on or about 17 May Active Fencing attended the site and re-nailed some 15 to 20 palings which had come loose. Unfortunately part of the communication from Carbon contained the following comments concerning Mr Thompson:- "The guy's talking a lot of hogwash. He's making it all up. The panels came off because he pushed them in an act of urban terrorism. He is a lying so and so." Comments to this nature do not assist in establishing that the opinions expressed by Mr Carbon are impartial. Decision 1. The present application is filed as a renewal of orders made in file COM 16/30430. Those orders in that file were made on 8 September 2016 and the applicant claims that s. 4 of the Notice of Order has not been complied with in the following respect:- 1. the fence had several palings which were not nailed on properly and were only partly attached to the rails. 2. faulty materials had been used and the fence was not constructed in a proper and workmanlike manner. 3. palings were warping and separating from the railings and some had already fallen off. 4. faults included palings of uneven width with bark still present on the wood. 5. some palings had split as a result of an unusually high number of knots and knot holes. 6. there were gouge marks from some sort of blunt instrument and large gaps existed between palings whereas the original quote was for butted palings. 1. The applicant then went on to claim that the fence was of an inappropriate design between neighbouring properties as there was a lack of privacy and that palings needed to be lapped and capped. It was also claimed that the contractor had not removed all waste material after constructing the new fence. 2. It is important to note that the original decision of Senior Member Smith made on 8 September 2016 was never challenged by way of an Appeal. An application (COM 17/07518) to set aside the decision made on 8 September 2017 was dismissed on the basis that the decision was not made in the absence of the applicant and the application to set aside was not made in time. 3. The present application must be considered in the light of s. 16 of the Dividing Fences Act 1991 which provides as follows:- Substantial compliance sufficient 16 substantial compliance is sufficient (1)substantial compliance with the terms of any agreement or order referred to in s. 15 is sufficient for the purposes of this Act. (2)however the adjoining owner who carries out the fencing work is liable to the other adjoining owner for any defect or omission in the fencing work. 1. S. 15 of the Act enables an adjoining owner carrying out fencing work as agreed or as determined by an order to recover from the defaulting owner the amount agreed or ordered to be paid by that adjoining owner. In order to seek any relief from the payment of monies claimed by the respondent Jeremy Mundey, the applicant, Roger Thompson must establish that the fencing work required to be carried out under order 4 of the orders made on 8 September 2016 in matter COM 16/30430 was not carried out in substantial compliance with the terms of the order. 2. The applicant bears the onus of establishing that at the date of the hearing there had not been substantial compliance with the terms of the order made by Senior Member Smith on 8 September 2016. 3. The applicant's evidence provided to establish that the work was not substantially compliant with the orders, consists of two reports from Diamond Property Inspections and Childs Property Inspections together with a series of photographs which have not been dated and which have been captioned to a limited extent in the index to the applicant's submissions. Mr Thompson has annexed information from the website of Active Fencing, together with quotations for fencing work from four other contractors. These quotes appear to be directed to the costs of the works but they are all dated in February of 2017, some five months after the earlier orders were made. That can have no bearing on the issue whether the earlier orders have been substantially complied with. To that extent they will be disregarded. 4. The inspection undertaken by Diamond Property Inspections was undertaken on 7 April 2017. The author of the report, Fadi Keyrouz, observed that excessive knots were noted in timber railing and several rails were damaged. It was recommended that damaged timbers be replaced. The author noted further that several palings were not installed correctly and re-fixing of the lose palings were required. The report went further and noted:- "untradelike workmanship was noted to the jointing in several sections and replacing/repairing the existing joint is required to provide a satisfactory finish. Damage was evident to several railings and replacing the damaged timbers is recommended." The report which was in general terms was illustrated only by some six photographs which were not captioned other than through a circling or identifying of the particular aspect of the photograph which was being referred to. 1. The building report of Childs Property Inspections was prepared on 1 May 2017 after inspection undertaken on that date. 2. The author of the report observed that various rough sawn pine timber palings had worked loose from the pine rails and small diameter round galvanised nails were visible only. It was noted further that due to the expansion and contraction of the pine material, galvanised screws suitable for use with treated pine should have been used instead of the small diameter round nails as stated in the quotation. 3. The author then went on to question whether the rails were H3 treated pine rails as the cracking and splitting may suggest that the rails were of an ordinary or standard grade pine. It was noted that if the fencing contractor was unable to verify that the rails were of H3 treated pine then a sample should be taken to a supplier for assessment and the rails would then have to be replaced with H3 treated timbers. It was observed that lopped mitres had been poorly cut with a chainsaw and the cut surface did not appear to be coated with timber preservative. 4. The author recommended replacement with a steel colorbond fence to provide a longer lasting fence. This observation is not relevant to the matters required to be determined by the Tribunal as the order clearly specified that the fence was to be constructed of treated pine by the nominated fencing contractor. The time for setting aside that order has long since passed. 5. The author of the Childs report noted that all palings should be fixed with screws to prevent further loosening at a cost of $500.00, the poorly cut rails should be replaced and all surfaces should be coated with a preservative for treated pine. The costing was clearly an estimate and it was not based on any specific number of rails nor did it seek to identify to seek those rails which required replacement. The estimate appears to have been based upon an assumption that the rails were not H3 treated pine. 6. Mr Mundey has not provided any expert report to address the two reports provided by the applicant apart from some emails from Mr Peter Carbon, the owner/manager of Active Fencing and Access Timber Code Pty Ltd. Those emails do confirm that the railings are guaranteed H3 quality by the supplier which provides them and the palings are not dressed but are rough sawn and wet after treatment so that they do not shrink and suffer from movement out in the weather. It is significant to note that after the inspections carried out by the applicant's experts, the respondent had workman attend to re-nail palings and replace those which had become warped thereby overcoming the major objections of the applicant's experts. 7. Mr Thompson has made complaints concerning the gaps between the palings and has suggested that the fence should be both lapped and capped. Neither of these processes were required under the original order. The objections made by Mr Thompson in relation to privacy where fences are not lapped must be addressed in the light of the condition of the fence where works were undertaken and in the light of the apparent reluctance of the present applicant to initially have the fencing works undertaken. 8. Neither the Diamond Property Inspection report nor the Childs report makes any reference to excessive gaps between the palings. The Diamond report noted that several palings were not installed correctly and required refixing and the jointing in several areas required repairing or replacing. Reference was made to damage being evident to several railings although the report was not specific and it would appear that only one photograph of damaged railing was provided. 9. The Child Property Inspections report referred to screw fixing of the palings but did not seek to criticise the spacing between palings. The refixing of the paling was apparently undertaken on 18 May 2017 after both their reports had been prepared and completed. The author of the Childs Property Inspections report (who has not been identified) did refer to replacement of split and poorly cut rails but again the extent of this problem was not properly identified in the report. The issue of the H3 railings was raised but this issue appears to have been answered by the evidence from Mr Carbon. The issue concerning treatment of surfaces has not been established as necessary by particular findings on the basis of the author of the report. 10. Upon a review of the expert evidence it would appear that the only concerns raised by the applicant, which have been established as existing at the date of the Hearing, would relate to the problems with the railings. Although both the applicant's experts refer to a need to replace some railings this issue has not been dealt with specifically and the Tribunal is left to review of the photographs of railings to determine whether or not there has been substantial compliance with the terms of the order made by Senior Member Smith. The timber required in the order was treated pine and the photographs depict material which generally is no different to other treated pine fences. The only railing cracks evident in photographs appear to be in the area of knotting and whilst the cracks are evident there is no suggestion from any expert that the timber cracking, to the extent that is shown in photographs, would in any way affect the stability of the fence. The movement of the railing on a horizontal plane would clearly be restricted by the palings to which it is attached. 11. It follows that the applicant has failed to demonstrate that the order has not been substantially complied with and she has not produced evidence to establish any claim under s.16(2). Accordingly the claim for relief sought is refused. Noting that the issues with the palings were not rectified until shortly before the present Hearing, it is appropriate to limit any amount recoverable by the respondent to the amount referred to in the order made on 8 September 2016. Claims for obtaining a judgment in the Local Court or enforcement thereof are premature as the fence was not rectified to make it substantially compliant with the order until after 18 May 2017. It follows that the amount which should be recoverable by the respondent against the applicant is the sum of $1,437.50 referred to in order 6 made by Senior Member J Smith on 8 September 2016 in matter COM 16/30430. J A Ringrose General Member Civil and Administrative Tribunal of New South Wales 6 July 2017 ********** 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: 31 August 2017