Nayar v Uren [2024] NSWCATAP 47

Nayar v Uren [2024] NSWCATAP 47

The Appellant did not establish that he was denied a reasonable opportunity to be heard, because the evidence did not show reasonable attempts to participate in the first instance hearing and the post-hearing material did not assist him. Leave to appeal was not warranted because the Respondent's evidence was sufficient for the Tribunal to conclude that the fence was in a sufficient state, was approximately only 10 years old, and had been damaged by work conducted or authorised on behalf of the Appellant, so an order requiring the Appellant to pay 100% of the replacement fence cost was open and was not unjust, inequitable, or against the weight of evidence. The retaining wall removal order...

Jurisdiction
Australia
Judgment Date
28 March 2024
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Dividing Fences Decision / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed except to the extent of making amended orders.
Legal Topics
['dividing Fence Replacement' 'procedural Fairness' 'natural Justice' 'leave to Appeal' 'apportionment of Fencing Costs' 'retaining Wall Removal for Fencing Work']
['civil and Administrative Law' 'dividing Fences'] ['dividing Fence Replacement' 'procedural Fairness' 'natural Justice' 'leave to Appeal' 'apportionment of Fencing Costs' 'retaining Wall Removal for Fencing Work']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Dividing Fences Decision / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Appellant was denied procedural fairness because the first instance hearing proceeded in his absence despite asserted attempts to participate by telephone or audiovisual means' 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable or was against the weight of evidence' 'Whether it was open to order the Appellant to bear 100% of the cost of the replacement fence' 'Whether the Tribunal had power under the Dividing Fences Act 1991 (NSW) to order removal of the collapsed retaining wall to permit replacement fencing work']

Ratio Decidendi

The Appellant did not establish that he was denied a reasonable opportunity to be heard, because the evidence did not show reasonable attempts to participate in the first instance hearing and the post-hearing material did not assist him. Leave to appeal was not warranted because the Respondent's evidence was sufficient for the Tribunal to conclude that the fence was in a sufficient state, was approximately only 10 years old, and had been damaged by work conducted or authorised on behalf of the Appellant, so an order requiring the Appellant to pay 100% of the replacement fence cost was open and was not unjust, inequitable, or against the weight of evidence. The retaining wall removal order...

Court Disposition

Leave to appeal refused; appeal dismissed except to the extent of making amended orders.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed except to the extent of making the orders below.' "The Appellant is to cause the existing timber fence being the boundary fence between (the addresses of the Appellant and Respondent involving the fence the subject of the appeal) to be demolished and removed from a point...