Josephine Rainbird v Mr and Mrs A and F Ghahyazi [2014] NSWCATCD 92

Josephine Rainbird v Mr and Mrs A and F Ghahyazi [2014] NSWCATCD 92

The Tribunal found there was no sufficient fence between the properties after considering all the circumstances required by s 4, particularly the applicant's privacy concerns and potential use of the indented area, and found the respondents' objections did not outweigh those concerns. Because an appropriate s 11 notice had been served, the Tribunal ordered the remaining boundary fence work and equal cost sharing, with the respondents' contribution capped by reference to the Interloc quotation and amounts payable under the settlement. The respondents' application was dismissed. As the matter was a pending proceeding commenced before 1 January 2014, the Tribunal could apply the Dividing...

Jurisdiction
Australia
Judgment Date
30 May 2014
Procedural Posture
Dividing Fences Act Applications in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing
Outcome
Fencing orders made in favour of the applicant; the application seeking that no dividing fence was required was dismissed; respondents ordered to pay the applicant's costs as agreed or assessed on the ordinary basis.
Legal Topics
['dividing Fence' 'sufficient Dividing Fence' "adjoining Owners' Contribution" 'notice to Carry Out Fencing Work' 'pending Proceedings' 'costs']
['property Law' 'civil Procedure' 'costs'] ['dividing Fence' 'sufficient Dividing Fence' "adjoining Owners' Contribution" 'notice to Carry Out Fencing Work' 'pending Proceedings' 'costs']

Case Brief

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Procedural Posture

Dividing Fences Act Applications in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether there was a sufficient dividing fence between the applicant's and respondents' properties from the street frontage to point B on the agreed sketch plan." 'Whether the Tribunal should order fencing work on the common boundary and apportion its costs equally between the parties.' "Whether the respondents' application that no dividing fence was required should be dismissed." "Whether the respondents should pay the applicant's costs."]

Ratio Decidendi

The Tribunal found there was no sufficient fence between the properties after considering all the circumstances required by s 4, particularly the applicant's privacy concerns and potential use of the indented area, and found the respondents' objections did not outweigh those concerns. Because an appropriate s 11 notice had been served, the Tribunal ordered the remaining boundary fence work and equal cost sharing, with the respondents' contribution capped by reference to the Interloc quotation and amounts payable under the settlement. The respondents' application was dismissed. As the matter was a pending proceeding commenced before 1 January 2014, the Tribunal could apply the Dividing...

Court Disposition

Fencing orders made in favour of the applicant; the application seeking that no dividing fence was required was dismissed; respondents ordered to pay the applicant's costs as agreed or assessed on the ordinary basis.

Orders

  • ["The applicant will cause to be constructed on the boundary line between the applicant's property and the respondent's property a paling fence 1.8metres in height and 7.47 metres in length." 'The paling fence referred to in order 1 above will be constructed of metal upright poles with lapped or capped treated pine...