Uddin v Truong [2022] NSWCATAP 323

Uddin v Truong [2022] NSWCATAP 323

Objectively, the appellants consented to order 10 because the words used at the hearing amounted to agreement to the orders read out by the Tribunal, and the evidence did not establish that the consent was conditional. The challenge to order 3 and the contention that no order for fencing work could be made also failed because the relevant orders were made by consent and the parties accepted facts sufficient to enliven jurisdiction. However, the Tribunal erred in treating s 18 of the Dividing Fences Act 1991 (NSW) as exhausting its power: the Registrar General boundary determination involved surveying for the purpose of constructing or replacing a dividing fence and therefore was fencing...

Jurisdiction
Australia
Judgment Date
13 October 2022
Procedural Posture
Appeal Concerning a Dividing Fence Dispute Under the Dividing Fences Act 1991 (nsw) / Appeal Panel From a Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Made on 23 May 2022 in COM 21/52234
Outcome
Appeal allowed in part; leave to appeal granted on the consent issue but the appeal on that issue dismissed; order 12 set aside and substituted; otherwise appeal dismissed; each party to pay their own costs of the appeal.
Legal Topics
['dividing Fences' 'consent Orders' 'determination of Boundary' 'part 14 a of the Real Property Act 1900 (nsw)' 'power to Apportion Costs of Fencing Work' 'leave to Appeal']
['land Law' 'civil Procedure' 'costs'] ['dividing Fences' 'consent Orders' 'determination of Boundary' 'part 14 a of the Real Property Act 1900 (nsw)' 'power to Apportion Costs of Fencing Work' 'leave to Appeal']

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Procedural Posture

Appeal Concerning a Dividing Fence Dispute Under the Dividing Fences Act 1991 (nsw) / Appeal Panel From a Decision of the NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Made on 23 May 2022 in COM 21/52234

Legal Issues

  1. 1 ['Whether the appellants consented to order 10 made on 23 May 2022.' 'Whether there was a sufficient dividing fence and therefore no jurisdiction to make an order to do fencing work.' 'Whether the Tribunal had power to make an order concerning the costs of the application to the Registrar General under Part 14A of the Real Property Act 1900 (NSW).' 'Whether order 12 should be varied to require the costs paid to the Registrar General to be shared.' 'Whether special circumstances warranted an order for costs of the appeal.']

Ratio Decidendi

Objectively, the appellants consented to order 10 because the words used at the hearing amounted to agreement to the orders read out by the Tribunal, and the evidence did not establish that the consent was conditional. The challenge to order 3 and the contention that no order for fencing work could be made also failed because the relevant orders were made by consent and the parties accepted facts sufficient to enliven jurisdiction. However, the Tribunal erred in treating s 18 of the Dividing Fences Act 1991 (NSW) as exhausting its power: the Registrar General boundary determination involved surveying for the purpose of constructing or replacing a dividing fence and therefore was fencing...

Court Disposition

Appeal allowed in part; leave to appeal granted on the consent issue but the appeal on that issue dismissed; order 12 set aside and substituted; otherwise appeal dismissed; each party to pay their own costs of the appeal.

Orders

  • ['Leave to appeal is granted on the question of whether the appellants consented to order 10 made 23 May 2022 and the appeal in relation to that matter is dismissed.' 'The appeal in connection with who should pay the costs of the application to the Registrar General under Part 14A of the Real Property Act 1900 (NSW)...