The Owners – Strata Plan No 44958 v Michel [2023] NSWCATCD 162

The Owners – Strata Plan No 44958 v Michel [2023] NSWCATCD 162

The retaining wall was not part of the dividing fence because it was a separate structure constructed for the purpose of supporting the natural ground at the side and rear of the applicant's land, not for the purpose of supporting or maintaining the Colourbond fence, so work on it was not fencing work under the Dividing Fences Act 1991. The Colourbond fence was not a sufficient dividing fence because both civil engineers identified issues with its post installation. Repair in accordance with the Bula Brothers quote would provide a sufficient dividing fence, and the parties should share the cost equally under s 7 because the Tribunal was not comfortably satisfied that the fence had been...

Jurisdiction
Australia
Judgment Date
11 December 2023
Procedural Posture
Application Under the Dividing Fences Act 1991 for Fencing Work and Contribution Orders / Principal Judgment After Hearing
Outcome
Application allowed in part; fencing work ordered and costs application refused.
Legal Topics
['dividing Fence' 'retaining Wall' 'sufficient Dividing Fence' 'fencing Work' 'contribution to Fencing Work' 'costs in Ncat']
['environment and Planning' 'dividing Fences' 'civil Procedure'] ['dividing Fence' 'retaining Wall' 'sufficient Dividing Fence' 'fencing Work' 'contribution to Fencing Work' 'costs in Ncat']

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Procedural Posture

Application Under the Dividing Fences Act 1991 for Fencing Work and Contribution Orders / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the retaining wall is part of the dividing fence' 'Whether there is a sufficient dividing fence' 'What orders, if any, for fencing work should be made' 'How the cost of any fencing work should be shared between the parties' 'Whether a costs order should be made']

Ratio Decidendi

The retaining wall was not part of the dividing fence because it was a separate structure constructed for the purpose of supporting the natural ground at the side and rear of the applicant's land, not for the purpose of supporting or maintaining the Colourbond fence, so work on it was not fencing work under the Dividing Fences Act 1991. The Colourbond fence was not a sufficient dividing fence because both civil engineers identified issues with its post installation. Repair in accordance with the Bula Brothers quote would provide a sufficient dividing fence, and the parties should share the cost equally under s 7 because the Tribunal was not comfortably satisfied that the fence had been...

Court Disposition

Application allowed in part; fencing work ordered and costs application refused.

Orders

  • ["The following fencing work is to be carried out, on or before 11 April 2024, on the boundary between the applicant's land and the respondent's land: remove the existing Colourbond fence, supply and install new posts along the same line, and reinstall existing panels." 'The work is to be done by Bula Brothers...