Facer v Rosenberg [2021] NSWCATCD 144

Facer v Rosenberg [2021] NSWCATCD 144

The Colorbond fence erected by the respondent constitutes a sufficient dividing fence under the Act; the remaining sections of the dilapidated timber paling fence are not sufficient and should be replaced with a new timber paling fence of specified dimensions and construction, with both parties contributing equally to the cost.

Parties
First Applicant: Jonathan Facer; Second Applicant: Christina Facer; Respondent: David Rosenberg
Jurisdiction
Australia
Judgment Date
22 November 2021
Procedural Posture
Dividing Fence Dispute / Final Decision
Outcome
Application allowed in part; orders made for replacement of remaining sections of fence and cost contribution; no replacement required for Colorbond section
Legal Topics
Dividing Fences, Sufficiency of Fencing, Contribution to Cost, Neighbour Disputes
Property Law Civil Procedure Dividing Fences Sufficiency of Fencing Contribution to Cost Neighbour Disputes

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Parties

Jonathan Facer

First Applicant

Christina Facer

Second Applicant

David Rosenberg

Respondent

Procedural Posture

Dividing Fence Dispute / Final Decision

Legal Issues

  1. 1 Whether the existing fence is a sufficient dividing fence under the Dividing Fences Act 1991 (NSW)
  2. 2 Whether the Tribunal should exercise discretion to order replacement of remaining sections of the fence
  3. 3 Appropriate contribution by the parties to the cost of replacement fencing

Ratio Decidendi

The Colorbond fence erected by the respondent constitutes a sufficient dividing fence under the Act; the remaining sections of the dilapidated timber paling fence are not sufficient and should be replaced with a new timber paling fence of specified dimensions and construction, with both parties contributing equally to the cost.

Court Disposition

Application allowed in part; orders made for replacement of remaining sections of fence and cost contribution; no replacement required for Colorbond section

Orders

  • Applicants to demolish existing timber paling fence between properties
  • Applicants to remove any plants/shrubs only to extent necessary for new fence construction