Croese v Maidment [2016] NSWCATAP 149

Croese v Maidment [2016] NSWCATAP 149

The Appeal Panel held that the fence erected by Mr Butcher substantially complied with the parties' agreement as reflected in the quote. The agreement did not specify construction at natural ground level and had to be construed in its factual context, including the adjacent similar fence, the earth batter existing when the fence was agreed, the respondent's house slab level, and the practical need for privacy. The Member at first instance disclosed no error in concluding that substantial compliance was established, and the new evidence was not significant new evidence warranting leave because it was reasonably available at the original hearing.

Jurisdiction
Australia
Judgment Date
29 June 2016
Procedural Posture
Appeal Concerning Orders for Payment of Half the Cost of a Dividing Fence Under the Dividing Fences Act 1991 (nsw) / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Dated 29 March 2016
Outcome
Appeal dismissed; leave to rely on new evidence refused; each party to pay their own costs; any stay of the 29 March 2016 orders vacated.
Legal Topics
['substantial Compliance With Fencing Agreement' 'dividing Fences Act 1991 (nsw)' 'leave to Appeal' 'new Evidence on Appeal' 'construction of Agreement' 'costs']
['civil and Administrative Law' 'property Law' 'dividing Fences' 'appeals'] ['substantial Compliance With Fencing Agreement' 'dividing Fences Act 1991 (nsw)' 'leave to Appeal' 'new Evidence on Appeal' 'construction of Agreement' 'costs']

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Procedural Posture

Appeal Concerning Orders for Payment of Half the Cost of a Dividing Fence Under the Dividing Fences Act 1991 (nsw) / Appeal Panel of the Civil and Administrative Tribunal of New South Wales From a Consumer and Commercial Division Decision Dated 29 March 2016

Legal Issues

  1. 1 ["Whether the dividing fence erected substantially complied with the agreement between the parties as reflected in the builder's quote dated 24 September 2014." 'Whether the appellant required leave to appeal and whether the grounds raised involved a question of law.' 'Whether leave should be granted to either party to rely on new evidence.' 'Whether the appellant was entitled to damages or other relief arising from the construction of the fence.' 'Whether any costs order should be made on the appeal.']

Ratio Decidendi

The Appeal Panel held that the fence erected by Mr Butcher substantially complied with the parties' agreement as reflected in the quote. The agreement did not specify construction at natural ground level and had to be construed in its factual context, including the adjacent similar fence, the earth batter existing when the fence was agreed, the respondent's house slab level, and the practical need for privacy. The Member at first instance disclosed no error in concluding that substantial compliance was established, and the new evidence was not significant new evidence warranting leave because it was reasonably available at the original hearing.

Court Disposition

Appeal dismissed; leave to rely on new evidence refused; each party to pay their own costs; any stay of the 29 March 2016 orders vacated.

Orders

  • ['The appeal is dismissed.' 'Leave to rely on the new evidence is refused in relation to both parties.' 'Each party is to pay their own costs of the appeal.' 'Any stay in relation to the orders made on 29 March 2016 is vacated.']