Warringah Properties Pty Limited v Babij (Snr) & 1 Ors [2006] NSWSC 702

Warringah Properties Pty Limited v Babij (Snr) & 1 Ors [2006] NSWSC 702

The sandstone structure was at least roughly on the common boundary, extended along the whole boundary, was higher than the fill, enclosed or bounded land, separated the two properties, and performed the function of a dividing fence. Even assuming it retained some fill, that support function was not determinative. The Plaintiff failed to demonstrate error in point of law in the finding that the structure was a fence and dividing fence rather than a retaining wall, or in the indemnity costs order.

Jurisdiction
Australia
Judgment Date
14 July 2006
Procedural Posture
Appeal From Local Court Proceedings Under the Dividing Fences Act 1991 / Supreme Court Summons Challenging Local Court Orders, Including Application for Leave to Challenge Costs Order
Outcome
Summons dismissed.
Legal Topics
['dividing Fences' 'retaining Wall Distinction' 'restoration Costs' 'indemnity Costs' 'error of Law on Appeal']
['property Law' 'civil Procedure' 'costs'] ['dividing Fences' 'retaining Wall Distinction' 'restoration Costs' 'indemnity Costs' 'error of Law on Appeal']

Case Brief

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Procedural Posture

Appeal From Local Court Proceedings Under the Dividing Fences Act 1991 / Supreme Court Summons Challenging Local Court Orders, Including Application for Leave to Challenge Costs Order

Legal Issues

  1. 1 ['Whether the sandstone structure was a "fence" and "dividing fence" within the meaning of the Dividing Fences Act 1991 or a "retaining wall" excluded from the definition of "fence".' 'Whether any error of law by the Magistrate justified disturbing the Local Court order requiring the Plaintiff to pay $26,000.00.' 'Whether leave should be granted to challenge the indemnity costs order and whether that order involved error.']

Ratio Decidendi

The sandstone structure was at least roughly on the common boundary, extended along the whole boundary, was higher than the fill, enclosed or bounded land, separated the two properties, and performed the function of a dividing fence. Even assuming it retained some fill, that support function was not determinative. The Plaintiff failed to demonstrate error in point of law in the finding that the structure was a fence and dividing fence rather than a retaining wall, or in the indemnity costs order.

Court Disposition

Summons dismissed.

Orders

  • ['The Summons is dismissed.' 'Save for the costs of a Notice of Motion the Plaintiff is to pay the costs of the proceedings.' 'The costs of the Notice of Motion brought to obtain an order for security for costs are presently reserved and can be dealt with by Registrar Howe in due course.']