Fallon v Croese [2016] NSWCATCD 40

Fallon v Croese [2016] NSWCATCD 40

There was a valid fencing notice and no sufficient dividing fence. The Tribunal could order fencing work and contributions, but it had no jurisdiction to make orders for retaining walls where the sleepers were required to retain land rather than to support the fence. A 1.8 metre high Colorbond fence on the surveyed boundary was appropriate. Because a sufficient fence could have been built in 2014 for $2,450.00, the respondents had no sufficient reason to prevent it then, and later increased costs were necessitated by works carried out by the respondents, the applicants should contribute only $1,225.00. Immediate erection was not appropriate because construction works and retaining walls...

Jurisdiction
Australia
Judgment Date
11 May 2016
Procedural Posture
Fencing Work Application Under the Dividing Fences Act 1991 / Principal Judgment After Hearing
Outcome
Orders made for erection of a new Colorbond dividing fence, with the applicants to contribute $1,225.00 and the respondents to arrange and pay the fencing contractor subject to reimbursement of that contribution.
Legal Topics
['dividing Fences' 'sufficient Dividing Fence' 'fencing Work Contributions' 'tribunal Jurisdiction' 'retaining Walls']
['property Law' 'neighbour Disputes'] ['dividing Fences' 'sufficient Dividing Fence' 'fencing Work Contributions' 'tribunal Jurisdiction' 'retaining Walls']

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Procedural Posture

Fencing Work Application Under the Dividing Fences Act 1991 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether there was a sufficient dividing fence between the adjoining lands.' 'What fencing work should be ordered, including the type, location and timing of the fence.' 'How the cost of the fencing work should be apportioned between the adjoining owners.' 'Whether the Tribunal could make orders concerning sleepers or retaining walls associated with the proposed fence.' 'Which contractor should carry out the fencing work.']

Ratio Decidendi

There was a valid fencing notice and no sufficient dividing fence. The Tribunal could order fencing work and contributions, but it had no jurisdiction to make orders for retaining walls where the sleepers were required to retain land rather than to support the fence. A 1.8 metre high Colorbond fence on the surveyed boundary was appropriate. Because a sufficient fence could have been built in 2014 for $2,450.00, the respondents had no sufficient reason to prevent it then, and later increased costs were necessitated by works carried out by the respondents, the applicants should contribute only $1,225.00. Immediate erection was not appropriate because construction works and retaining walls...

Court Disposition

Orders made for erection of a new Colorbond dividing fence, with the applicants to contribute $1,225.00 and the respondents to arrange and pay the fencing contractor subject to reimbursement of that contribution.

Orders

  • ["A new Colorbond sheet metal dividing fence 1.8 metres high, in woodland grey, is to be erected on the common boundary line between the applicant's and the respondents' adjoining lands, as surveyed by Parker Scanlon." 'The fencing work is to be carried out by a contractor of the respondents\' choice ("the fencing...