JDW Services Pty Ltd as Trustee for JDW Superannuation Fund v O’Dea [2022] NSWCATCD 29

JDW Services Pty Ltd as Trustee for JDW Superannuation Fund v O’Dea [2022] NSWCATCD 29

Because there was no sufficient dividing fence, the fencing notice was valid, and the respondent was an adjoining owner for the purposes of the Dividing Fences Act 1991 (NSW), the starting point was equal contribution to a sufficient dividing fence. The respondent's objections based on relative benefit and possible effects on his lease did not justify eliminating contribution. However, the applicant did not establish the higher claimed cost of $73,392.99, so the respondent's contribution was capped at 50% of $47,100.37, being $23,550.19.

Jurisdiction
Australia
Judgment Date
23 February 2022
Procedural Posture
Dividing Fence Dispute Under the Dividing Fences Act 1991 (nsw) / Final Hearing After Unsuccessful Conciliation and Group List Hearing
Outcome
Application allowed in part; fencing work ordered and respondent ordered to contribute 50% of the cost subject to a maximum of $23,550.19.
Legal Topics
['sufficient Dividing Fence' 'fencing Notice' 'contribution to Fencing Work' 'rural Boundary Fencing' 'tribunal Jurisdiction']
['property Law' 'dividing Fences' 'consumer and Commercial Disputes'] ['sufficient Dividing Fence' 'fencing Notice' 'contribution to Fencing Work' 'rural Boundary Fencing' 'tribunal Jurisdiction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Dividing Fence Dispute Under the Dividing Fences Act 1991 (nsw) / Final Hearing After Unsuccessful Conciliation and Group List Hearing

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to determine the dividing fence dispute between the owner of Lot 57 of DP 1111618 and the lessee of Lot 11 of DP 752399.' 'Whether there was a sufficient dividing fence between Lot 11 of DP 752399 and Lot 57 of DP 1111618.' 'What type, height, length and location of replacement dividing fence should be ordered.' 'Whether the respondent should contribute to the cost of the fencing work and, if so, in what amount.']

Ratio Decidendi

Because there was no sufficient dividing fence, the fencing notice was valid, and the respondent was an adjoining owner for the purposes of the Dividing Fences Act 1991 (NSW), the starting point was equal contribution to a sufficient dividing fence. The respondent's objections based on relative benefit and possible effects on his lease did not justify eliminating contribution. However, the applicant did not establish the higher claimed cost of $73,392.99, so the respondent's contribution was capped at 50% of $47,100.37, being $23,550.19.

Court Disposition

Application allowed in part; fencing work ordered and respondent ordered to contribute 50% of the cost subject to a maximum of $23,550.19.

Orders

  • ['The applicant is to cause the performance of fencing work between Lot 11 of DP 752399 and Lot 57 of DP 1111618 within 3 months from the date of the decision.' 'The applicant is to demolish and remove any remaining components of the previous bushfire damaged fence.' 'The applicant is to remove plants, trees, roots,...