Ali Gunnee Khan v Fawaz

This case concerned an appeal from the Supreme Court of Victoria regarding the interpretation of the *Fences Act 1915* (Vic.). The parties, Ali Gunnee Khan (appellant) and George Fawaz (respondent), were owners of adjoining lands separated by Glenmaggie Creek. Each party held a licence from the Crown to occupy the water frontage abutting their respective lands. The dispute arose when Fawaz sought to compel Khan to contribute to the construction of a dividing fence between these water frontages, a request Khan refused.

The central legal issues before the court were whether the appellant, as a licensee of a water frontage, qualified as an "occupier" under the *Fences Act 1915*, and consequently, whether the appellant and respondent were "occupiers of adjoining lands" for the purposes of the Act, thereby obliging them to contribute to a dividing fence. Specifically, the court had to determine if the licence to occupy the water frontage constituted an "alienation from the Crown" as contemplated by the definition of "occupier" in section 3 of the *Fences Act*.

The High Court affirmed the decision of the Supreme Court, holding that a licensee of a water frontage is indeed an "occupier" within the meaning of section 3 of the *Fences Act 1915*. The Court reasoned that the definition of "occupier" included any person entitled as owner to occupy land alienated from the Crown by grant, lease, or licence, and that the licence granted for the water frontage, which conferred a right of occupation for a specified period subject to certain conditions, constituted such an alienation. Therefore, the parties, being occupiers of adjoining lands separated only by the creek and the water frontages, were bound by section 5 of the Act to contribute to the construction of a dividing fence. The appeal was dismissed.