Rahman v Antonio - [2009] NSWSC 1346

CITATION: Rahman v Antonio [2009] NSWSC 1346

HEARING DATE(S): 30 November 2009

JUDGMENT DATE :
7 December 2009

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave to appeal a question of mixed fact and law is refused.
(2) The appeal is dismissed.
(3) The amended summons filed 17 July 2009 is dismissed.
(4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS: APPEAL AND NEW TRIAL - appeal - general principles - interference with discretion of court below - appeal from Local Court Order pursuant to ss 6, 7 and 8 of the Dividing Fences Act1991 - ss 39, 40 and 41 Local Court Act 2007 - QUESTION OF LAW - question of procedural fairness - mixed question of law and fact - leave to appeal a question of mixed fact and law refused - no denial of procedural fairness - appeal dismissed

LEGISLATION CITED: Dividing Fences Act 1991
Local Court Act 2007

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
R L & D Investments Pty Ltd v Bibsy [2002] NSWSC 1082; (2002) 37 MVR 479
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] 220 CLR 517
Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

PARTIES: Fahmid Rahman (Plaintiff)
Michael Antonio and Anna Antonio (Defendants)

FILE NUMBER(S): SC 11951/2009

SOLICITORS: R Christie (Plaintiff)
Michael & Anna Antonio (Defendants in person)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 8002/09/46

LOWER COURT JUDICIAL OFFICER : Pierce LCM

LOWER COURT DATE OF DECISION: 17 March 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 7 DECEMBER 2009
11951/2009 - FAHMID RAHMAN v MICHAEL ANTONIO

& ANOR

JUDGMENT (Appeal – Local Court – Dividing Fences

Act 1991)

1 HER HONOUR: This appeal arises out of a dispute concerning a dividing fence between neighbouring properties. By amended summons filed 17 July 2009, the plaintiff seeks firstly, an order that the Local Court order made by his Honour Magistrate Pierce on 17 March 2009 pursuant to s 6 of the Dividing Fences Act 1991 be set aside; secondly, an order for costs for the erection of a fence to be awarded under s 7 and/or s 8 of the Dividing Fences Act 1991; thirdly that “reasonable application of the lands titles analysis of my [the plaintiff’s] plight be considered”; fourthly, the normal process of divided payment occurs; and fifthly, “supervision of Council staff is provided”.

2 The plaintiff is Fahmid Rahman (“Mr Rahman”). The defendants are Michael Antonio and Anna Antonio who are husband and wife (“Mr and Mrs Antonio”). Mr Rahman…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman v Antonio

Details

AGLC: Rahman v Antonio [2009] NSWSC 1346
Case: [2009] NSWSC 1346
Decision Date: 7 December 2009

CaseChat Overview and Summary

The appeal arises from an order made by a Local Court judge in relation to a dispute between neighbours over a dividing fence. The appeal was brought pursuant to sections 6, 7 and 8 of the Dividing Fences Act 1991, and sections 39, 40 and 41 of the Local Court Act 2007. The appellant, Mr Rahman, sought to appeal the decision on the basis that it was wrong in law and that there had been a denial of procedural fairness. The respondent, Mr Antonio, opposed the appeal.

The central legal issue before the court was whether it was appropriate to grant leave to appeal a question of mixed fact and law in this context. The court noted that the general principle is that an appellate court should not interfere with the discretionary decisions of a lower court, unless there has been a failure of procedural fairness or an error of law. In this case, the court held that the appellant had not demonstrated that there had been a denial of procedural fairness, and that the question of mixed fact and law did not warrant interference with the discretion of the Local Court judge.

The court further held that the appellant had not demonstrated that the Local Court judge had made an error of law in reaching their decision. The court found that the evidence before the Local Court was sufficient to support the decision, and that there was no basis to interfere with the outcome. As such, the appeal was dismissed, and the decision of the Local Court was upheld.

No orders were made by the appellate court, as the appeal was dismissed. The decision of the Local Court remains in place, and the dispute between the parties remains unresolved.

Orders