Grabowskyj v Ryan [2020] NSWCATAP 270

Grabowskyj v Ryan [2020] NSWCATAP 270

The retaining wall is not part of the dividing fence within the meaning of s 3 of the Dividing Fences Act 1991 (NSW) as it does not provide foundation or support necessary for the support and maintenance of the fence except for any necessary fixings. The removal of two trees was not part of fencing work but rather preparatory work for reconstructing the retaining wall. No substantial miscarriage of justice was shown and procedural fairness was accorded.

Parties
Appellant: Paul John Grabowskyj; Respondent: Amanda Lee Ryan
Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Internal Appeal From Tribunal Decision / Appeal Panel Decision
Outcome
Leave to appeal refused. Appeal allowed in part; order varied; appeal otherwise dismissed.
Legal Topics
Dividing Fences, Retaining Walls, Procedural Fairness, Fencing Work, Costs and Contributions
Environment and Planning Property Law Dividing Fences Retaining Walls Procedural Fairness Fencing Work Costs and Contributions

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Parties

Paul John Grabowskyj

Appellant

Amanda Lee Ryan

Respondent

Procedural Posture

Internal Appeal From Tribunal Decision / Appeal Panel Decision

Legal Issues

  1. 1 Whether retaining wall constitutes part of the dividing fence under s 3 of the Dividing Fences Act 1991 (NSW)
  2. 2 Whether removal of trees is part of fencing work
  3. 3 Whether appellant was denied procedural fairness

Ratio Decidendi

The retaining wall is not part of the dividing fence within the meaning of s 3 of the Dividing Fences Act 1991 (NSW) as it does not provide foundation or support necessary for the support and maintenance of the fence except for any necessary fixings. The removal of two trees was not part of fencing work but rather preparatory work for reconstructing the retaining wall. No substantial miscarriage of justice was shown and procedural fairness was accorded.

Court Disposition

Leave to appeal refused. Appeal allowed in part; order varied; appeal otherwise dismissed.

Orders

  • Leave to appeal is refused
  • The appeal is allowed in part