Gillard v Russell [2018] NSWCATCD 69

Gillard v Russell [2018] NSWCATCD 69

The Tribunal had jurisdiction because a valid fencing notice had been served and the application was brought more than one month after service. The low retaining wall was part of the fencing work because it was a retaining wall for the purpose of a foundation or footing supporting the proposed dividing fence and acting as a plinth, so the respondent was required to contribute one half of its cost. The retaining wall and fence were to be centred on the common boundary as defined by Pinnacle Land Surveyors. Because the respondent invoked the statutory boundary survey process and a registered surveyor was employed, the applicants were liable for one half of the reasonable survey cost. The...

Jurisdiction
Australia
Judgment Date
08 November 2018
Procedural Posture
Application Under the Dividing Fences Act 1991 for Orders as to Fencing Work / Final Hearing and Reasons for Decision
Outcome
Orders made for the location and construction of the dividing fence and retaining wall, contribution to survey costs, facilitating orders for quotes and completion of work, and each party to pay their own costs.
Legal Topics
['dividing Fence' 'retaining Wall as Foundation or Footing' 'common Boundary Determination by Registered Surveyor' 'survey Costs' 'costs in Ncat']
['real Property' 'dividing Fences' 'civil and Administrative Tribunal Procedure'] ['dividing Fence' 'retaining Wall as Foundation or Footing' 'common Boundary Determination by Registered Surveyor' 'survey Costs' 'costs in Ncat']

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Procedural Posture

Application Under the Dividing Fences Act 1991 for Orders as to Fencing Work / Final Hearing and Reasons for Decision

Legal Issues

  1. 1 ['Does the Tribunal have jurisdiction to make an order in respect of the retaining wall proposed?' 'If the Tribunal has jurisdiction, where should the retaining wall be located?' 'Does the respondent have any liability to contribute to the retaining wall?' 'Do the applicants have any liability in respect of contributing to the cost of the survey?' 'Do the applicants have any liability for the costs incurred by the respondent in participating in these proceedings?']

Ratio Decidendi

The Tribunal had jurisdiction because a valid fencing notice had been served and the application was brought more than one month after service. The low retaining wall was part of the fencing work because it was a retaining wall for the purpose of a foundation or footing supporting the proposed dividing fence and acting as a plinth, so the respondent was required to contribute one half of its cost. The retaining wall and fence were to be centred on the common boundary as defined by Pinnacle Land Surveyors. Because the respondent invoked the statutory boundary survey process and a registered surveyor was employed, the applicants were liable for one half of the reasonable survey cost. The...

Court Disposition

Orders made for the location and construction of the dividing fence and retaining wall, contribution to survey costs, facilitating orders for quotes and completion of work, and each party to pay their own costs.

Orders

  • ['The line of the dividing fence and retaining wall between 18 ***** Place ********** and 21 ***** Place *********** along Boundary "B" is to be centred on the common boundary line as defined by surveyors, Pinnacle Land Surveyors.' 'The applicants are to trim and cut their paving to provide a clear working area for...