Nham & anor v Hayes & anor [2018] NSWCATCD 17

Nham & anor v Hayes & anor [2018] NSWCATCD 17

The Fencing Notice sought a 50% contribution for the whole of proposed work that included construction of a retaining wall and a paling fence atop it. The applicants did not provide evidence identifying what part, if any, of the retaining wall was a foundation or support necessary for the support and maintenance of the fence, and did not separate the retaining wall work or contribution within the scope of the Act from work outside it. The Tribunal therefore had no basis to infer that the retaining wall work was wholly within paragraph (c) of the definition of fence, and dismissed the application.

Jurisdiction
Australia
Judgment Date
23 May 2018
Procedural Posture
Dividing Fences Application Under Section 12(1) of the Dividing Fences Act 1991 (nsw) / Final Determination After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Yvonne Rao was joined as the second applicant and the application was dismissed.
Legal Topics
['dividing Fences' 'retaining Walls' 'fencing Notices' 'contribution to Fencing Work' 'tribunal Jurisdiction' 'sufficient Dividing Fence']
['land Law' 'property Law'] ['dividing Fences' 'retaining Walls' 'fencing Notices' 'contribution to Fencing Work' 'tribunal Jurisdiction' 'sufficient Dividing Fence']

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Procedural Posture

Dividing Fences Application Under Section 12(1) of the Dividing Fences Act 1991 (nsw) / Final Determination After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the Fencing Notice proposed fencing work within the meaning of the Dividing Fences Act 1991 (NSW).' 'Whether proposed construction of a retaining wall was within the definition of a fence as a foundation or support necessary for the support and maintenance of the fence.' 'Whether the Tribunal could make orders requiring contribution where the proposed work and claimed contribution included retaining wall work not separated from fencing work within the Act.']

Ratio Decidendi

The Fencing Notice sought a 50% contribution for the whole of proposed work that included construction of a retaining wall and a paling fence atop it. The applicants did not provide evidence identifying what part, if any, of the retaining wall was a foundation or support necessary for the support and maintenance of the fence, and did not separate the retaining wall work or contribution within the scope of the Act from work outside it. The Tribunal therefore had no basis to infer that the retaining wall work was wholly within paragraph (c) of the definition of fence, and dismissed the application.

Court Disposition

Yvonne Rao was joined as the second applicant and the application was dismissed.

Orders

  • ['Yvonne Rao is joined as the second applicant.' 'The application is dismissed.']