Draper v Gibbs [2014] NSWCATAP 54

Draper v Gibbs [2014] NSWCATAP 54

The Tribunal erred in law in holding that the owner of the land with the swimming pool had exclusive choice of fencing material for the section of the dividing fence serving as a pool barrier, and in finding that a treated pine paling fence necessarily required modification for compliance with the Swimming Pools Act. Upon consideration of new evidence that a compliant pool fence was subsequently constructed by Mr Gibbs on his side of the boundary, the factual underpinnings for the original decision no longer existed. The appeal was allowed and the matter remitted for fresh consideration.

Parties
Appellants: Trevor Draper and Sharon Draper; Respondent: Ian Gibbs
Jurisdiction
Australia
Judgment Date
23 September 2014
Procedural Posture
Internal Appeal / Appeal From the Consumer and Commercial Division of the Tribunal
Outcome
Appeal allowed, matter remitted to the Tribunal for redetermination by a differently constituted member, previous orders set aside.
Legal Topics
Dividing Fences, Swimming Pool Barriers, Apportionment of Costs, Procedural Fairness, Errors of Law, Appeals Procedure
Property Law Administrative Law Dividing Fences Swimming Pool Barriers Apportionment of Costs Procedural Fairness Errors of Law Appeals Procedure

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Parties

Trevor Draper and Sharon Draper

Appellants

Ian Gibbs

Respondent

Procedural Posture

Internal Appeal / Appeal From the Consumer and Commercial Division of the Tribunal

Legal Issues

  1. 1 Whether the Swimming Pools Act 1992 grants the pool-owning neighbour sole choice of fencing material for a dividing fence also serving as pool barrier
  2. 2 Whether a treated pine paling fence requires modification to comply with pool safety requirements
  3. 3 Whether evidence supported the Tribunal's finding as to prevailing fence type in the locality

Ratio Decidendi

The Tribunal erred in law in holding that the owner of the land with the swimming pool had exclusive choice of fencing material for the section of the dividing fence serving as a pool barrier, and in finding that a treated pine paling fence necessarily required modification for compliance with the Swimming Pools Act. Upon consideration of new evidence that a compliant pool fence was subsequently constructed by Mr Gibbs on his side of the boundary, the factual underpinnings for the original decision no longer existed. The appeal was allowed and the matter remitted for fresh consideration.

Court Disposition

Appeal allowed, matter remitted to the Tribunal for redetermination by a differently constituted member, previous orders set aside.

Orders

  • Dispense with oral hearing and determine appeal on the papers under s 50(2) CATA.
  • Leave to appeal on grounds 3 and 5 refused.