Anthony Allen Tarplee and Ruth Tarplee v Robert Hayes and Bernadette Hayes

The case involved Anthony Allen Tarplee and Ruth Tarplee, the plaintiffs, who sought a declaration that a structure erected by their neighbours, Robert Hayes and Bernadette Hayes, was not a sufficient dividing fence as required under the Fences Act 1975. The dispute arose from a boundary issue concerning the sufficiency of a structure that the defendants claimed constituted a dividing fence. The case was heard in the Supreme Court of Queensland. The plaintiffs argued that the structure was insufficient under the relevant legislation and sought a declaration to this effect. The defendants countered that the plaintiffs had not made an application for fencing work, which they argued was a prerequisite for the court to make such a declaration.

The central legal issue before the court was whether it had the jurisdiction to make a declaration regarding the sufficiency of a dividing fence when no application for fencing work had been made by the plaintiffs. The court was required to interpret the provisions of the Fences Act 1975, particularly in relation to the requirements for making a declaration about the sufficiency of a dividing fence. The court also needed to determine if the lack of an application for fencing work by the plaintiffs precluded it from making the requested declaration.

The court found that under the Fences Act 1975, the making of a declaration regarding the sufficiency of a dividing fence was contingent upon an application for fencing work being made. Given that the plaintiffs had not made such an application, the court concluded it did not have the jurisdiction to make the declaration sought. The court further noted that the absence of an application for fencing work was a statutory prerequisite that the plaintiffs had not fulfilled. Consequently, the court dismissed the application on the grounds that it lacked jurisdiction to make the declaration requested by the plaintiffs.