Morton v Berry [2021] NSWCATAP 174

Morton v Berry [2021] NSWCATAP 174

Legal and dilapidation report costs are not 'fencing work' under the Dividing Fences Act 1991 (NSW) and should not have been ordered as contributions to the fence costs. Though legal costs can be awarded under s.23 of the Act, the order for the appellant to contribute to the respondent’s dilapidation report was manifestly unreasonable and outside the power conferred by the Act. Contribution to the private certifier's cost is permitted as it is part of fencing work. The failure to consider set-off for the appellant's costs was not appealable due to lack of sufficient evidence that the issue was raised below.

Parties
Appellant: Justine Morton; Respondent: Jennifer Berry
Jurisdiction
Australia
Judgment Date
17 June 2021
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed in part; leave to appeal refused on second ground
Legal Topics
Dividing Fences, Statutory Interpretation, Renewal of Proceedings, Costs
Property Law Civil Procedure Dividing Fences Statutory Interpretation Renewal of Proceedings Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Justine Morton

Appellant

Jennifer Berry

Respondent

Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 Whether legal costs, certifier's costs, and dilapidation reports are contributions to 'fencing work' under the Dividing Fences Act 1991 (NSW)
  2. 2 Whether the lower Tribunal correctly applied the relevant statutory definitions and powers in making its orders
  3. 3 Whether the appellant's costs should have been set off against the respondent's

Ratio Decidendi

Legal and dilapidation report costs are not 'fencing work' under the Dividing Fences Act 1991 (NSW) and should not have been ordered as contributions to the fence costs. Though legal costs can be awarded under s.23 of the Act, the order for the appellant to contribute to the respondent’s dilapidation report was manifestly unreasonable and outside the power conferred by the Act. Contribution to the private certifier's cost is permitted as it is part of fencing work. The failure to consider set-off for the appellant's costs was not appealable due to lack of sufficient evidence that the issue was raised below.

Court Disposition

Appeal allowed in part; leave to appeal refused on second ground

Orders

  • Leave to appeal is refused.
  • The Appeal is allowed.