Minifie v Maxwell [2020] NSWCATAP 175

Minifie v Maxwell [2020] NSWCATAP 175

Order (4) of the Appeal Panel decision had future operation and gave either party liberty to apply for variation of the existing orders, including matters beyond time for compliance through the words "or otherwise". The appellant's request was, in substance, an application to vary the order requiring her to pay one half of the fencing cost. The Tribunal therefore had not completely and finally dealt with that aspect of the renewal proceedings and Senior Member Boyce was not functus officio. The contrary decision conveyed by the Deputy Registrar was an appealable ancillary decision and involved an error of law, requiring the appeal to be upheld and the decision quashed.

Jurisdiction
Australia
Judgment Date
21 August 2020
Procedural Posture
Internal Appeal in the NSW Civil and Administrative Tribunal Appeal Panel Concerning an Application to Vary an Order for Contribution Under the Dividing Fences Act / Appeal From a Decision Conveyed on 25 May 2020; Final Appeal Panel Orders Made on 21 August 2020
Outcome
Appeal upheld; decision quashed; renewal proceedings remitted to Senior Member Boyce for determination of the appellant's application to vary the contribution order.
Legal Topics
['internal Appeal' 'functus Officio' 'dividing Fences' 'variation of Tribunal Orders' 'appealable Decision' 'remittal']
['civil Procedure' 'administrative Law' 'property Law'] ['internal Appeal' 'functus Officio' 'dividing Fences' 'variation of Tribunal Orders' 'appealable Decision' 'remittal']

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Procedural Posture

Internal Appeal in the NSW Civil and Administrative Tribunal Appeal Panel Concerning an Application to Vary an Order for Contribution Under the Dividing Fences Act / Appeal From a Decision Conveyed on 25 May 2020; Final Appeal Panel Orders Made on 21 August 2020

Legal Issues

  1. 1 ["Whether the Tribunal was functus officio in considering the appellant's application to vary the order requiring her contribution to the cost of the dividing fence" 'Whether the email communication of 25 May 2020 conveyed an appealable decision of the Tribunal' 'Whether Order (4) of the Appeal Panel decision of 2 March 2020 permitted a further application to vary the orders, including the contribution order']

Ratio Decidendi

Order (4) of the Appeal Panel decision had future operation and gave either party liberty to apply for variation of the existing orders, including matters beyond time for compliance through the words "or otherwise". The appellant's request was, in substance, an application to vary the order requiring her to pay one half of the fencing cost. The Tribunal therefore had not completely and finally dealt with that aspect of the renewal proceedings and Senior Member Boyce was not functus officio. The contrary decision conveyed by the Deputy Registrar was an appealable ancillary decision and involved an error of law, requiring the appeal to be upheld and the decision quashed.

Court Disposition

Appeal upheld; decision quashed; renewal proceedings remitted to Senior Member Boyce for determination of the appellant's application to vary the contribution order.

Orders

  • ['The appeal is upheld' 'The decision of Senior Member Boyce conveyed by email by the Deputy Registrar of the Tribunal to the appellant that he was functus officio in considering the application by the appellant to vary the order in the renewal proceedings requiring contribution by her is quashed' "The renewal...