Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mohammad Oboodi Mehr & Samiheh Oboodi Mehr v John Lau & Carina Tam [2019] NSWCATAP 177 Hearing dates: 2 July 2019 Date of orders: 16 July 2019 Decision date: 16 July 2019 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1. The appellants' application for an adjournment is refused.

2. The appeal is allowed.

3. Set aside that part of Order 3 of the orders made by the Tribunal on 26 March 2019 from the words "to the southern extent" to the end of that order, so that, in substitution, Order 3 is now in terms that "A sufficient fence on the boundary between Nos 88 and 94 for the purposes of the Dividing Fences Act 1991 is a planting of native or other species of low flammability trees to form a hedge to grow to a height of 1.8 metres."

4. Proceedings COM 18/54204 are, otherwise remitted to Senior Member Tibbey to determine : a) the precise boundary or line on which the fencing work is to be carried out and the length of the boundary fence; b) which of the parties is to be responsible for implementing the work contemplated by order 3; c) the manner in which contributions for the fencing work are to be apportioned between the parties; and d) the time within which the fencing work is to be carried out.

4. In the remitted proceedings the parties must provide to Senior Member Tibbey the survey which was referred to in orders 1 and 2 of her 26 March 2019 decision. Catchwords: APPEAL – Dividing fences – failure to exercise jurisdiction Legislation Cited: Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Cases Cited: Oboodi v Hornsby Shire Council [2019] NSWLEC 1287 Rathchime Pty Ltd v Willat [2017] NSWCATAP 87 Texts Cited: None cited Category: Principal judgment Parties: Mohammad Oboodi Mehr & Samiheh Oboodi Mehr (Appellants) John Lau & Carina Tam (Respondents) Representation: M Oboodi Mehr & S Oboodi Mehr (Appellants self-represented) J Lau & C Tam (Respondents self-represented) File Number(s): AP 19/19322 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: N/A Date of Decision: 26 March 2019 Before: Senior Member Tibbey File Number(s): COM 18/54204