Inacio v Luckose [2020] NSWCATAP 149

Inacio v Luckose [2020] NSWCATAP 149

The retaining wall at issue was not constructed as a foundation or support necessary for the support and maintenance of the dividing fence, but rather as a support for the respondents' land following excavation. Therefore, it does not form part of the dividing fence and cannot be subject to joint contribution or orders under the Dividing Fences Act 1991 (NSW). As a result, the Tribunal lacked jurisdiction to make the original orders requiring both parties to replace the retaining wall and share costs.

Jurisdiction
Australia
Judgment Date
22 July 2020
Procedural Posture
Appeal / Decision on Appeal From Consumer and Commercial Division Orders Dated 16 December 2019
Outcome
Appeal allowed. Orders below set aside. Application dismissed.
Legal Topics
['dividing Fences' 'definition of Fence' 'retaining Walls and Dividing Fences' 'jurisdiction Under Dividing Fences Act']
['environment and Planning'] ['dividing Fences' 'definition of Fence' 'retaining Walls and Dividing Fences' 'jurisdiction Under Dividing Fences Act']

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Procedural Posture

Appeal / Decision on Appeal From Consumer and Commercial Division Orders Dated 16 December 2019

Legal Issues

  1. 1 ["Whether the retaining wall constituted a 'foundation or support necessary for the support and maintenance of the fence' under the Dividing Fences Act 1991 (NSW)" 'Whether the Tribunal had jurisdiction to order joint payment for replacement of retaining wall and fence']

Ratio Decidendi

The retaining wall at issue was not constructed as a foundation or support necessary for the support and maintenance of the dividing fence, but rather as a support for the respondents' land following excavation. Therefore, it does not form part of the dividing fence and cannot be subject to joint contribution or orders under the Dividing Fences Act 1991 (NSW). As a result, the Tribunal lacked jurisdiction to make the original orders requiring both parties to replace the retaining wall and share costs.

Court Disposition

Appeal allowed. Orders below set aside. Application dismissed.

Orders

  • ['Appeal allowed.' 'The Orders made on 16 December 2019 in proceedings COM 19/37951 are set aside.' 'The application in proceedings COM 19/37951 is dismissed.']