Lukac and Lukac v Tran [2014] NSWCATCD 149

Lukac and Lukac v Tran [2014] NSWCATCD 149

The application had to be dismissed because the applicants filed their Tribunal application before serving the fencing notice on the respondent. The Dividing Fences Act 1991 required service of the notice first and, if no agreement was reached after one month, an application could then be filed. The Tribunal had no discretion to extend time for service of the notice, and sections 9 and 22 did not apply on the evidence.

Jurisdiction
Australia
Judgment Date
06 August 2014
Procedural Posture
Application for Orders for a Dividing Fence Under the Dividing Fences Act 1991 / Final Determination After Hearing
Outcome
Application dismissed
Legal Topics
['dividing Fence Contribution and Construction' 'fencing Notice Requirements' 'tribunal Jurisdiction' 'development Application for Fencing in Flood Risk Precinct' 'overhanging Vegetation']
['property Law' 'dividing Fences' 'administrative Law'] ['dividing Fence Contribution and Construction' 'fencing Notice Requirements' 'tribunal Jurisdiction' 'development Application for Fencing in Flood Risk Precinct' 'overhanging Vegetation']

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Procedural Posture

Application for Orders for a Dividing Fence Under the Dividing Fences Act 1991 / Final Determination After Hearing

Legal Issues

  1. 1 ['Whether the applicants served a valid notice to carry out fencing work before applying to the Tribunal as required by the Dividing Fences Act 1991.' 'Whether the Tribunal had jurisdiction to make fencing orders where the application was filed before the fencing notice was served.' 'Whether a sufficient dividing fence existed on the common boundary.' 'Whether the Tribunal should make fencing orders before Fairfield Local Council determined a Development Application for fencing in a Flood Risk Precinct.' 'Whether the Tribunal could order removal of a Macadamia tree, bamboo or other vegetation on or near the boundary.']

Ratio Decidendi

The application had to be dismissed because the applicants filed their Tribunal application before serving the fencing notice on the respondent. The Dividing Fences Act 1991 required service of the notice first and, if no agreement was reached after one month, an application could then be filed. The Tribunal had no discretion to extend time for service of the notice, and sections 9 and 22 did not apply on the evidence.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed']