Nancarrow v Donvito [2017] NSWCATAP 97

Nancarrow v Donvito [2017] NSWCATAP 97

The appeal was allowed because the Member did not explain the basis for finding that the existing electrified wire fence was of poor standard, not a sufficient dividing fence, and required replacement. The Member failed to analyse competing evidence on the critical precondition under the Dividing Fences Act, namely whether there was already a sufficient dividing fence. That failure to give adequate reasons was an error of law, so the decision was quashed and the matter remitted for reconsideration by a different Member rather than determined by the Appeal Panel on the existing material.

Jurisdiction
Australia
Judgment Date
03 May 2017
Procedural Posture
Internal Appeal From Dividing Fences Act Application / Appeal From Consumer and Commercial Division Decision
Outcome
Appeal allowed; order under appeal quashed; matter referred to the Consumer and Commercial Division for reconsideration before another Member.
Legal Topics
['failure to Give Reasons' 'appeal as of Right' 'sufficient Dividing Fence' 'fencing Work Contribution' 'remittal for Reconsideration']
['civil and Administrative Tribunal Procedure' 'dividing Fences' 'property Law'] ['failure to Give Reasons' 'appeal as of Right' 'sufficient Dividing Fence' 'fencing Work Contribution' 'remittal for Reconsideration']

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Procedural Posture

Internal Appeal From Dividing Fences Act Application / Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether the Member failed to give adequate reasons for finding that the existing electrified wire fence was of poor standard, was not a sufficient dividing fence, and had to be replaced.' 'Whether the failure to give adequate reasons constituted an error of law giving rise to an appeal as of right.' 'Whether the Appeal Panel should substitute its own decision or remit the matter for reconsideration by a different Member.']

Ratio Decidendi

The appeal was allowed because the Member did not explain the basis for finding that the existing electrified wire fence was of poor standard, not a sufficient dividing fence, and required replacement. The Member failed to analyse competing evidence on the critical precondition under the Dividing Fences Act, namely whether there was already a sufficient dividing fence. That failure to give adequate reasons was an error of law, so the decision was quashed and the matter remitted for reconsideration by a different Member rather than determined by the Appeal Panel on the existing material.

Court Disposition

Appeal allowed; order under appeal quashed; matter referred to the Consumer and Commercial Division for reconsideration before another Member.

Orders

  • ['The appeal is allowed.' 'The order made by the Member in COM 16/20259 is quashed.' 'The matter is referred to the Consumer and Commercial Division for reconsideration before another Member.']