Saleh v O’Brien [2021] NSWCATAP 240

Saleh v O’Brien [2021] NSWCATAP 240

The respondent is liable for the whole cost of fencing work under s 8 of the Dividing Fences Act 1991 (NSW) because the work was required as a result of unauthorised, unsuitable alteration by the respondent, and no sufficient evidence was adduced by the respondent to counter the appellants' case; the initial Tribunal failed to address s 8 and erred in law.

Jurisdiction
Australia
Judgment Date
12 August 2021
Procedural Posture
Appeal / Appeal Panel Decision on Appeal From Consumer and Commercial Division
Outcome
Appeal allowed
Legal Topics
['dividing Fences' 'liability for Fencing Work' 'appeal on Error of Law']
['property Law'] ['dividing Fences' 'liability for Fencing Work' 'appeal on Error of Law']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision on Appeal From Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether respondent liable for whole cost of fencing work under s 8 of the Dividing Fences Act 1991 (NSW)' 'Whether Tribunal erred in law by failing to address s 8 and by finding equal liability']

Ratio Decidendi

The respondent is liable for the whole cost of fencing work under s 8 of the Dividing Fences Act 1991 (NSW) because the work was required as a result of unauthorised, unsuitable alteration by the respondent, and no sufficient evidence was adduced by the respondent to counter the appellants' case; the initial Tribunal failed to address s 8 and erred in law.

Court Disposition

Appeal allowed

Orders

  • ['Set aside orders 6, 7 and 8 made by the Tribunal on 17 May 2021.' 'The respondent is to pay the whole of the cost of fencing work the subject of the fencing notice dated 29 October 2020 in the sum of $1,328.00 within 14 days of the publication of these reasons.' 'The fencing work the subject of order 4 made by the...