Ying v Xiao

Ying and Xiao were involved in a dispute over the ownership and maintenance of a dividing fence between their respective properties. The matter was initially heard by the New South Wales Land and Environment Court, but was subsequently transferred to the Civil and Administrative Tribunal (CAT) under section 13A of the Dividing Fences Act 1991. The primary issue before the CAT was the allocation of costs between the parties following the transfer of proceedings. Given the transfer, the CAT was required to determine whether it had the authority to order costs and, if so, how those costs should be allocated between the parties.

The CAT considered its jurisdiction to award costs in light of the specific provisions of the Dividing Fences Act and relevant case law. The CAT noted that under section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on costs may be dispensed with if the matter is straightforward. The CAT found the matter to be straightforward given the legislative framework and the absence of complex factual or legal disputes. Consequently, the CAT determined that a hearing on costs was not necessary. In terms of the allocation of costs, the CAT decided that the costs incurred in these proceedings should be determined by the Land and Environment Court in the related case of Xiao v Yang, 2025 NSWLEC 1417, File Number 2024/00301322. This decision was made to avoid duplication of effort and to ensure consistency in the treatment of costs across related proceedings.

The CAT dispensed with a hearing on costs pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, and directed that the costs of these proceedings be determined by the New South Wales Land and Environment Court in the related case of Xiao v Yang. This decision reflects a pragmatic approach to the management of costs in complex litigation involving multiple forums.