Jiang v Cousins [2019] NSWCATAP 118

Jiang v Cousins [2019] NSWCATAP 118

The first instance process involved procedural unfairness and predetermination because the appellants were not given an opportunity to present evidence and submissions before the Tribunal concluded it had no jurisdiction. The Appeal Panel therefore allowed the appeal and conducted a new hearing. On the evidence, the new fence was erected substantially in the same position as the old fence, any additional encroachment was minor, the parties had agreed to replacement along that line, and the new fence divided the properties and constituted a sufficient dividing fence. Because a sufficient dividing fence existed, the Tribunal had no power under the Dividing Fences Act 1991 to order that the...

Jurisdiction
Australia
Judgment Date
08 May 2019
Procedural Posture
Internal Appeal Concerning an Application Under the Dividing Fences Act 1991 / Appeal Panel New Hearing on Internal Appeal
Outcome
Appeal allowed; decision under appeal affirmed.
Legal Topics
['dividing Fences' 'sufficient Dividing Fence' 'encroachment' 'procedural Fairness' 'bias' 'tribunal Jurisdiction' 'internal Appeal']
['administrative Law' 'property Law'] ['dividing Fences' 'sufficient Dividing Fence' 'encroachment' 'procedural Fairness' 'bias' 'tribunal Jurisdiction' 'internal Appeal']

Case Brief

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Procedural Posture

Internal Appeal Concerning an Application Under the Dividing Fences Act 1991 / Appeal Panel New Hearing on Internal Appeal

Legal Issues

  1. 1 ['Whether the Tribunal at first instance denied the appellants procedural fairness by dismissing the application before they presented evidence and submissions.' "Whether the Tribunal member's conduct gave rise to bias or predetermination." 'Whether the new Colourbond fence was a sufficient dividing fence under the Dividing Fences Act 1991.' 'Whether the Tribunal had power to order that the fence be moved to the surveyed boundary or to the former fence line.']

Ratio Decidendi

The first instance process involved procedural unfairness and predetermination because the appellants were not given an opportunity to present evidence and submissions before the Tribunal concluded it had no jurisdiction. The Appeal Panel therefore allowed the appeal and conducted a new hearing. On the evidence, the new fence was erected substantially in the same position as the old fence, any additional encroachment was minor, the parties had agreed to replacement along that line, and the new fence divided the properties and constituted a sufficient dividing fence. Because a sufficient dividing fence existed, the Tribunal had no power under the Dividing Fences Act 1991 to order that the...

Court Disposition

Appeal allowed; decision under appeal affirmed.

Orders

  • ['The appeal is allowed.' 'The decision under appeal is affirmed.']