Mac Anally v Roper [2014] NSWCATCD 38

Mac Anally v Roper [2014] NSWCATCD 38

The applicants bore the onus of proving on the balance of probabilities that Colourbond should replace the existing timber fence because it was more sufficient than timber. Their claims about termites, lifespan and practicality were unsupported by documentary evidence or expert report, evidence about fences in the locality was equivocal, timber was accepted as more commonly used for side fences, and no privacy, council code or planning instrument supported Colourbond. Timber fencing was therefore preferred and the cost was to be shared equally.

Jurisdiction
Australia
Judgment Date
02 April 2014
Procedural Posture
Application for an Order for Fencing Work Under the Dividing Fences Act 1991 / Principal Judgment
Outcome
Application determined by ordering timber replacement fencing rather than Colourbond, with costs shared equally.
Legal Topics
['sufficient Dividing Fence' 'fencing Work' 'contribution Between Adjoining Owners' 'timber Fencing' 'colourbond Fencing']
['property Law' 'dividing Fences'] ['sufficient Dividing Fence' 'fencing Work' 'contribution Between Adjoining Owners' 'timber Fencing' 'colourbond Fencing']

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Procedural Posture

Application for an Order for Fencing Work Under the Dividing Fences Act 1991 / Principal Judgment

Legal Issues

  1. 1 ['Whether the 24 metres of existing timber dividing fence should be replaced with timber or Colourbond.' 'Whether the applicant proved that Colourbond was a more sufficient dividing fence than timber.' 'How the cost of the fencing work should be shared between adjoining owners.']

Ratio Decidendi

The applicants bore the onus of proving on the balance of probabilities that Colourbond should replace the existing timber fence because it was more sufficient than timber. Their claims about termites, lifespan and practicality were unsupported by documentary evidence or expert report, evidence about fences in the locality was equivocal, timber was accepted as more commonly used for side fences, and no privacy, council code or planning instrument supported Colourbond. Timber fencing was therefore preferred and the cost was to be shared equally.

Court Disposition

Application determined by ordering timber replacement fencing rather than Colourbond, with costs shared equally.

Orders

  • ['The parties are to replace the unrepairable 24 metres of old existing wooden boundary fence with wooden fencing.' 'The cost of the fencing work is to be shared equally between the parties.']