Geracitano v Cloughessy [2021] NSWCATAP 329

Geracitano v Cloughessy [2021] NSWCATAP 329

The retaining wall was necessary due to the land level difference and foundational to the dividing fence, bringing it within the Tribunal's jurisdiction. Appellants' failure to provide material as directed denied the Appeal Panel an opportunity to consider the merits of the appeal. There was no error in the Senior Member's decision or in the conduct of proceedings warranting leave to appeal.

Parties
Appellant: Daniel Geracitano; Respondent: Tharon Cloughessy
Jurisdiction
Australia
Judgment Date
26 October 2021
Procedural Posture
Appeal / Leave to Appeal and Appeal From Orders of Senior Member of NSW Civil and Administrative Tribunal (consumer and Commercial Division)
Outcome
Leave to appeal refused; appeal dismissed
Legal Topics
Dividing Fences, Tribunal Appeals, Jurisdictional Issues, Retaining Walls, Costs Apportionment
Civil Procedure Property Law Dividing Fences Tribunal Appeals Jurisdictional Issues Retaining Walls Costs Apportionment

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Parties

Daniel Geracitano

Appellant

Tharon Cloughessy

Respondent

Procedural Posture

Appeal / Leave to Appeal and Appeal From Orders of Senior Member of NSW Civil and Administrative Tribunal (consumer and Commercial Division)

Legal Issues

  1. 1 Whether the Tribunal had jurisdiction to order construction of a dividing fence on top of a retaining wall that would also support a driveway
  2. 2 Whether the appellants were unfairly required to contribute to the cost of the retaining wall
  3. 3 Whether the appellants were denied procedural fairness in the conduct of the hearing

Ratio Decidendi

The retaining wall was necessary due to the land level difference and foundational to the dividing fence, bringing it within the Tribunal's jurisdiction. Appellants' failure to provide material as directed denied the Appeal Panel an opportunity to consider the merits of the appeal. There was no error in the Senior Member's decision or in the conduct of proceedings warranting leave to appeal.

Court Disposition

Leave to appeal refused; appeal dismissed

Orders

  • Leave to appeal is refused
  • The appeal is dismissed