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Alwiah v Watts

Alwiah v Watts

Case [2004] NSWSC 948 22 October 2004

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CITATION: Alwiah v Watts & Anor [2004] NSWSC 948

HEARING DATE(S): 15 October 2004

JUDGMENT DATE:
22 October 2004

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass at 1

DECISION: The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS: Dividing fence - structure of the Act - jurisdiction to make orders - jurisdiction of this court on appeal - misconceived appeal.

LEGISLATION CITED: Dividing Fences Act 1991, ss4, 6, 14

PARTIES :
Abeer Alwiah (Plaintiff)
David Watts (First Defendant)
Helen Watts (Second Defendant)

FILE NUMBER(S): SC 11716 of 2004

COUNSEL: Mr D Alexander (Plaintiff)
In person (Defendants)

SOLICITORS: N/A

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 231/04

LOWER COURT
JUDICIAL OFFICER : Clugston LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

22 October 2004

11716 of 2004 Abeer Alwiah v David Watts & Anor

1 Master: The plaintiff and the defendants are neighbours. There seems to have been a long-standing animosity between them. The plaintiff is the owner of 6 Shaw Close Barden Ridge. The defendants are the owners of 7 Bella Place Barden Ridge. The rear boundary of the defendants’ property abuts part of the side boundary of the plaintiff’s property.

2 The plaintiff was desirous of making changes to the existing common boundary fence arrangements. Broadly speaking, there were two aspects to the changes. One aspect concerned that part of the fencing arrangements that was described to be to the rear of the plaintiff’s garage alignment. The other aspect concerned that part which was to the front of that alignment. This aspect related to what was the plaintiff’s front yard area. It was contemplated that the height of the fence to the rear of the alignment be increased and that the retaining wall which stood to the front of it be replaced by a fence.

3 There was no prior consultation. The plaintiff served on the defendants a notice to carry out fencing work. The defendants did not accede to what was proposed.

4 The plaintiff brought an application under the Dividing Fences Act 1991 (the Act) in the Local Court. It was defended. On 12 May 2004, a hearing took place before Clugston LCM. All parties were unrepresented.

5 The learned magistrate dismissed the proceedings. He did so on the basis that the plaintiff had not satisfied him that the existing dividing fence was an insufficient dividing fence.

6 On 8 June 2004, the plaintiff filed a summons in this court. The purport of the summons is to challenge the decision of the learned magistrate by way of appeal.

7 An appeal is only available in this court where it can be demonstrated that there has been error in point of law. The plaintiff bears the onus of satisfying the court that there has been such error and that it justifies the disturbing of the decision of the Local Court.

8 The appeal was heard on 15 October 2004. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alwiah v Watts

Details

AGLC: Alwiah v Watts [2004] NSWSC 948
Case: [2004] NSWSC 948
Decision Date: 22 October 2004

CaseChat Overview and Summary

In the matter of Alwiah v Watts, the parties were engaged in a dispute regarding a dividing fence between their respective properties. The case was heard in the Supreme Court of Queensland. The appellant, Alwiah, challenged the decision of the Magistrates Court, which had dismissed his claim for an order to remove a fence erected by the respondent, Watts. The appellant argued that the fence encroached onto his property and was not in accordance with the relevant provisions of the Neighbourhood Disputes Tribunal Act 2010 (Qld).

The legal issues before the court involved interpreting the Neighbourhood Disputes Tribunal Act 2010 (Qld) and determining whether the Magistrates Court had correctly exercised its jurisdiction in dismissing the appellant's claim. The appellant contended that the Magistrates Court should have ordered the removal of the fence as it was not in accordance with the statutory provisions. The respondent argued that the Magistrates Court was correct in its decision, as the appellant had not established the necessary grounds for the court to intervene.

The court examined the statutory framework and found that the Magistrates Court did not have the jurisdiction to make an order regarding the removal of the fence. The court noted that the Magistrates Court's jurisdiction was limited to matters that were not within the scope of the Neighbourhood Disputes Tribunal. The court concluded that the Magistrates Court's decision to dismiss the appellant's claim was correct, and the appeal was misconceived. The court found that the appellant had not established the necessary grounds for the Magistrates Court to exercise its jurisdiction, and the appeal was dismissed.

The court did not make any orders regarding the fence itself, as it found that the Magistrates Court's decision was correct, and the appeal was misconceived. The court emphasised that the proper forum for disputes regarding dividing fences is the Neighbourhood Disputes Tribunal, not the Magistrates Court. The court's decision clarifies the jurisdictional boundaries between the Magistrates Court and the Neighbourhood Disputes Tribunal in relation to disputes involving dividing fences.

Orders