Hylton v Hayes [2019] NSWCATCD 41

Hylton v Hayes [2019] NSWCATCD 41

The consent orders did not on their proper construction require a fire resistant (compliant) fence; even if the orders could be so construed, they were based upon a fundamental, common mistake of fact as to the compliance of the fence, therefore susceptible to being set aside. Equitable relief is to be granted to permit construction of a compliant fence at shared expense, rather than at the sole cost of either party.

Jurisdiction
Australia
Judgment Date
10 May 2019
Procedural Posture
Dividing Fence Dispute / Remitter After Appeal, Substantive Hearing on Renewed Application
Outcome
Application allowed in part; previous orders set aside; new orders made for shared construction of compliant fence; no order as to costs.
Legal Topics
['dividing Fences' 'consent Orders' 'mistake (contract)' 'costs in Tribunal']
['land Law' 'tribunal Procedure'] ['dividing Fences' 'consent Orders' 'mistake (contract)' 'costs in Tribunal']

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Procedural Posture

Dividing Fence Dispute / Remitter After Appeal, Substantive Hearing on Renewed Application

Legal Issues

  1. 1 ['Proper construction of consent orders concerning dividing fence' 'Whether consent orders required fence to comply with council fire safety requirements' 'Grounds for setting aside consent orders (common or unilateral mistake)' 'Apportionment of liability for cost of replacement fence' 'Entitlement to costs']

Ratio Decidendi

The consent orders did not on their proper construction require a fire resistant (compliant) fence; even if the orders could be so construed, they were based upon a fundamental, common mistake of fact as to the compliance of the fence, therefore susceptible to being set aside. Equitable relief is to be granted to permit construction of a compliant fence at shared expense, rather than at the sole cost of either party.

Court Disposition

Application allowed in part; previous orders set aside; new orders made for shared construction of compliant fence; no order as to costs.

Orders

  • ['Within six months of the date of this decision the applicants are to arrange the construction, along the boundary line of the properties the subject of this dispute, of a Colorbond fence 1.8 metres high in cream.' "The respondents are to pay the applicants, to their solicitors' trust account, half the cost of...