Bavcangiovski v Kwan

Case •

[2025] NSWCATCD 117

•

20 August 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Bavcangiovski v Kwan [2025] NSWCATCD 117
Hearing dates: 24 July 2025
Date of orders: 20 August 2025
Decision date: 20 August 2025
Jurisdiction:Consumer and Commercial Division
Before: K Merrick, Senior Member
Decision:

(1)   The portion of the current dividing fence (marked with an arrow on the annexed survey) that is situated wholly or predominantly on the applicant’s property and sits behind the respondents’ outdoor storage area (marked with an ‘X’ on the annexed survey) is to be demolished and removed, with care being taken to ensure that the adjoining side fence is supported and not destabilised in the process.

(2)   In place of the portion of the current dividing fence that is demolished, a new section of fence is to be constructed, in a style and to a height that matches the remainder of the current dividing fence. The new section of fence is to be centred on the boundary line between the two properties.

(3)   The new section of fence is to be built so as to connect to and provide the appropriate support for the remainder of the current dividing fence and the side fence where it meets the new section of fence.

(4)   The applicant may engage a suitable fence builder to undertake the work referred to in orders 1 to 3 (the fencing work). The fence builder, having the suitable expertise, is to identify the extent to which the section of the current dividing fence that sits behind the respondents’ outdoor storage area will need to be demolished and replaced in order to achieve a functional quality end product. The applicant will provide a copy of the description of the job and the quote received for the fencing work to the respondents at least 2 weeks before commencement of the works.

(5)   The fencing work is to be carried out in a good and workmanlike manner, and (except in so far as the parties agree to the reuse of bricks from the section of the current dividing fence that is demolished), using new materials.

(6)   The fencing work is to be paid for by the applicant.

(7)   Following completion of the fencing work, the applicant is to send to the respondents a copy of the tax invoices for the fencing work.

(8)   Within 14 days of receipt of the relevant tax invoices, the respondents are to pay the applicant 50% of the cost of the fencing work.

Catchwords:

ENVIRONMENT AND PLANNING — Fences and boundaries — “Dividing fence”

ENVIRONMENT AND PLANNING — Fences and boundaries — Contribution to costs

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Dividing Fences Act 1991 (NSW)

Cases Cited:

Alwiah v Watts & Anor [2004] NSWSC 948

Elwell v Chav [2024] NSWCATAP 172

Larney v Johannson [2013] NSWCA 409

Nicholls v Fortmann [2020] NSWCATAP 52

Purcell v Chadwick [2018] NSWCATAP 250

Texts Cited:

Nil

Category:Principal judgment
Parties: Suzana Bavcangionvski (Applicant)
Wing Poon Kwan and Wai Mun Cheng (Respondents)
Representation: Applicant – self represented
Respondents – self represented
File Number(s): 2025/00100861
Publication restriction: Nil

REASONS FOR DECISION

Background

  1. This application concerns a dividing fences dispute. The boundary along which the subject dividing fence runs forms part of the side boundary of the applicant’s property and the back boundary of the respondents’ property. For the purposes of this decision the fence that currently divides the properties will be referred to as ‘the current dividing fence’.

  2. The current dividing fence is a 1.6m high brick fence, 11cm deep, approximately 10.4m long and supported at approximately 2m intervals by engaged brick piers and at each end by a corner support pier that is 24cm deep. The piers are flush with the face of the current dividing fence that runs along the side of the applicant’s property so that the applicant’s ‘side’ of the current dividing fence is flat. The piers jut into the respondents’ property. The side fences of the respondents’ property are similarly constructed. It would appear that where the side fences join the current dividing fence, the corner piers may provide support for both structures.

  3. The current dividing fence follows the boundary between the two properties reasonably closely, although it is apparent from surveys obtained by both parties that the current dividing fence is not centred precisely on the boundary. At some point the centre line of the current dividing fence crosses the boundary line at a slight angle. The result is that the northeastern end of the current dividing fence, including the relevant corner support pier, falls entirely on the respondents’ property, while the southeastern end of the current dividing fence falls entirely within the applicant’s property, although the relevant corner support pier straddles the boundary.

  4. A copy of a survey of the respondents’ property is annexed to these reasons, for convenient reference. The respondents’ property is marked ‘B’, the applicant’s property is marked ‘3’, the neighbouring property to the north of the respondents’ property is marked ‘A’, and an outdoor storage area in the southeastern corner of the respondents’ property is marked ‘X’.

  5. The applicant served a fencing notice in accordance with section 11 of the Dividing Fences Act 1991 (NSW) (‘DFA’) on the respondents on or about 28 July 2023.

  6. The notice proposes the demolition of the entire length of the current dividing fence, installation of a new Colourbond panel fence in the colour ‘monument’ on pine timber sleepers between 1.8 metres and 2.4 metres above existing ground level stepped to grade, with the fencing work to be carried out on the boundary line as shown in a boundary survey report prepared by Barry James Inwood, with the cost of demolition of the current dividing fence and erection of the replacement Colourbond boundary fence to be paid in equal proportions and the respondents to pay the cost of replacement of any supporting structures attached to the current dividing fence.

  7. The reasons given by the applicant for proposing the demolition of the current dividing fence and construction of a new Colourbond fence are:

  1. the current dividing fence is approximately 18 centimetres over the boundary at the furthest (southeastern) point;

  2. the current dividing fence is more than 20 years old;

  3. over time the current dividing fence has become cracked and unstable and does not comply with safety regulations;

  4. the current dividing fence does not comply with height requirements. The minimum height requirement is 1.8 metres.

  1. At the hearing the applicant expanded on these reasons as follows:

  1. the point at which the current dividing fence falls 18cm into the applicant’s property (being the maximum point of encroachment at the southeastern end of the boundary fence) is in close proximity to the end of the side wall of a newly constructed outbuilding at the back of the applicant’s property. The wall of the outbuilding has been constructed 90cm from the surveyed boundary, but because the current dividing fence encroaches by up to 18cm, the space between the wall of the outbuilding and the current dividing fence at this point is only 72cm.The applicant wants the fence ‘moved back to the boundary’ as per the surveyor’s report;

  2. the balance of the applicant’s side fence is or will be Colourbond and the applicant would like a fence that is consistent in style for the whole of its length;

  3. the applicant has constructed a pool in the garden between the house and the outbuilding. The newly constructed ground level around the pool is 0.6m above natural ground level. It is a council requirement where there is a pool in the garden for any external fence to be at least 1.8m above the ground level of the pool (which in the present case will mean a fence that is 2.4m about natural ground level, in the vicinity of the pool);

  4. the applicant would like a fence of at least 1.8m height for privacy reasons;

  5. the applicant initially offered to pay the costs of removing and replacing the current dividing fence, but the respondents did not agree. This has led to delay. On that basis the applicant considers that it would be reasonable for the Tribunal to order the respondents to remove the current dividing fence and pay 100% of the costs of removal, and to instal a Colourbond fence within the boundary of their property and pay 50% of the costs of a new Colourbond fence. The applicant also requests orders for the respondents to pay the costs of the applicant’s expert’s report and 50% of the applicant’s legal fees.

  6. if the current dividing fence is not replaced with a Colourbond fence that is 2.4m high at the ‘pool end’ (the northeastern end) the applicants will construct a Colourbond fence 2.4m high inside their boundary and abutting the current dividing fence at the northeastern end. This is what they have done in respect of the adjoining neighbour’s back fence (being the neighbouring property marked ‘A’ on the survey).

  1. The applicant filed an application on 11 March 2025 seeking the following orders:

  1. An order determining the boundary or line on which the fencing work is to be carried out;

  2. An order determining the fencing work to be carried out including the kind of dividing fence involved (the applicant’s proposal is for a 1.8m high Colourbond fence in ‘monument’ colour);

  3. An order determining the manner in which contributions for the fencing work are to be apportioned or re-apportioned between the parties or the amount that each adjoining owner is liable to pay for that work;

  4. An order determining which portion of the dividing fence is to be constructed or repaired by either owner;

  5. An order determining the time within which the fencing work is to be carried out;

  6. An order that the respondents pay in full the cost of removing the current ‘unsafe and non compliant’ fence and half the cost of installation of the new fence;

  7. An order that the respondents pay for the ‘unnecessary legal fees and subsequent reports’ requested by the applicants ‘incurred as a result of their refusal to come to an agreement without proceedings with lawyers / courts’.

  1. It is noted that although the notice proposed shared costs for demolishing the existing fence and constructing the new fence, the application seeks orders that the respondents pay the whole of the costs of demolition of the existing fence.

  2. The orders sought by the applicant were opposed by the respondent.

  3. The respondents’ position may be summarised as follows:

  1. The boundary fence is a sufficient dividing fence:

  1. It is at least 26 years old and has been in place and served as a sufficient and undisputed dividing fence throughout that period.

  2. While the boundary fence deviates slightly from the boundary along its 10.4m length the boundary fence is largely on the boundary and the deviation is not entirely to the applicant’s disadvantage. The boundary fence falls entirely within the respondents’ property at the northeastern end, and at the southeastern end where the boundary fence falls entirely within the applicant’s property, when measured from the centre line the deviation is only 12.5cm, not 18cm. The corner pier at the southeastern end that forms part of the fence straddles the boundary.

  1. The boundary fence can be repaired in so far as that may be necessary and does not need replacing:

  1. The boundary fence is not a load bearing fence, and with the exception of minor cracking identified at the southeastern end, which the respondents contend can be repaired, it remains solid and does not need replacing. The respondents have offered to contribute to the cost of repair. This is a more cost effective and less disruptive solution.

  2. There have been no reported safety concerns in respect of the fence, including throughout the 10 years during which the applicant has owned the adjoining property. The reported cracks (which can only be seen from the applicant’s side) have apparently been there since at least 2021 (based on photos provided by the applicant) and yet no concerns have been raised.

  1. The alternative fence that has been proposed is unsuitable:

  1. The side fences of the respondents’ property are built of the same material and in the same style as the current dividing fence. The respondents wish to retain the brick style and height of the current dividing fence, which is consistent with the rest of their yard fencing. The respondents are not interested in a higher Colourbond fence, which will not be in keeping with their existing fencing.

  2. Further, the corners where the side fences and boundary fence meet provide structural support for the respective fences. The respondents also have an outdoor storage area built against the boundary fence (marked ‘X’ on the annexed survey). The respondents are concerned that demolition of the current dividing fence and construction of a Colourbond fence in its place will impact the stability of the side fences and outdoor storage area.

  3. There is no Council requirement for the fence to be at least 1.8m high. The only minimum height requirement is the 1.8m requirement for an external fence in the immediate vicinity of the new pool. The applicant can instal a fence of the requisite height and position it against the current dividing fence, (which it is noted is wholly within the respondents property at that point). In fact this is exactly what the applicant has done in relation to the neighbour’s fence (neighbouring property marked ‘A’).

  1. It is unreasonable for the applicant to expect the respondents to pay the costs sought by the application:

  1. the current dividing fence is the joint responsibility of the parties. There is no reason why the respondents should pay 100% of the demolition costs of the current dividing fence.

  2. The current dividing fence performs a support function for the side fences and outdoor storage area. The consequential costs of stabilising the side fences and outdoor storage area if the boundary fence is demolished should form part of the shared costs of the project, and not fall solely on the respondents, who are content to retain the current dividing fence.

  3. The respondents are a retired couple who are seeking to preserve a functional long standing boundary fence without being forced to incur unnecessary and costly demolition. They have offered to share in the costs of repair.

  4. The respondents have sought to engage and come up with a reasonable solution. When they asked questions (through their son) in September 2023 regarding the need for replacement, the applicant simply ceased to communicate and brought this application some 18 months later.

  1. The applicant’s desire for a new, higher fence in a different material follows the applicants’ decision to subdivide and construct duplex dwellings on the property, including a pool that is partly raised above the natural ground level, and outbuildings at the back of the property. These are not matters for which the respondents are responsible.

  1. The matter was heard on 27 July 2025 in Sydney.

Jurisdiction

  1. There was no dispute by the parties that this is a claim which the Tribunal has jurisdiction to hear and determine. In particular, the Tribunal was satisfied that a fencing notice was served, and that the application was lodged at least a month after the notice was served.

Evidence and hearing

  1. The applicant appeared at the hearing and relied on a 26 page bundle of documents (marked #1) which included a boundary survey, structural engineer’s report, photos, and correspondence including the 28 July 2023 Notice. The applicant’s husband Costa Hatzis spoke on behalf of the applicant at the hearing with her agreement. The applicant also made submissions.

  2. The respondents appeared at the hearing and relied on a 10 page bundle (marked #2) which included a statement, a survey (a copy of which is annexed to this decision) and communications with the surveyor, and photos. The respondents were accompanied by their son Aaron Kwan who with their agreement spoke on their behalf.

  3. An interpreter had been booked for the respondents, but the interpreter was not present for the start of the hearing The respondents indicated that they were content to proceed, with their son speaking for them and seeking their instructions in the course of the hearing, until the interpreter arrived.

  4. The parties were each given the opportunity to respond to the evidence and submissions of the other and to ask questions of each other.

  5. The Tribunal heard the evidence and reserved its decision.

  6. The Tribunal has read and considered all of the oral and documentary evidence of the parties.

Relevant Legislation

  1. The phrase “fencing work” is defined in s 3 of the DFA as follows:

fencing work means:

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,

...

  1. Section 4 of the DFA provides, relevantly:

4   Determination as to “sufficient dividing fence”

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a)  the existing dividing fence (if any),

(b)  the purposes for which the adjoining lands are used or intended to be used,

(c)  the privacy or other concerns of the adjoining land owners,

(d)  the kind of dividing fence usual in the locality,

(e)  any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f)  any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

…

  1. Section 6 of the Act provides:

6 General principle—liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) This section applies whether or not a dividing fence already separates the adjoining lands.

  1. Section 7 of the Act is in the following terms:

7   Contribution as between adjoining owners—generally

(1)  Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2)  An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.

(3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.

  1. The Tribunal’s jurisdiction to make orders in relation to fencing work is set out in s.14(1) of the Act:

14   Orders as to fencing work

(1)  The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:

(a)  the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b)  the fencing work to be carried out (including the kind of dividing fence involved),

(c)  the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d)  which portion of the dividing fence is to be constructed or repaired by either owner,

(e)  the time within which the fencing work is to be carried out,

(f)  the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g)  that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

Issues for determination

  1. There was no dispute between the parties as to the location of the true boundary between the properties. Each party obtained a survey. Those surveys were consistent.

  2. The evidence and submissions of the parties reveal three broad issues requiring determination.

  1. First, whether there is a sufficient dividing fence. 

  2. Second, if there is no sufficient dividing fence, whether the Tribunal should exercise its discretion to order fencing work and the nature of the fencing work that would be the subject of orders, including but not limited to the contribution of the parties to the cost of that work.

  3. Third, whether the applicants are entitled to the further costs which they seek.

Is there currently a sufficient dividing fence?

  1. The jurisdiction granted by the DFA to make fencing orders is only enlived if the Tribunal finds that there is no sufficient dividing fence. see DFA s 6; Alwiah v Watts & Anor [2004] NSWSC 948 approved in Larney v Johannson [2013] NSWCA 409, and Elwell v Chav [2024] NSWCATAP 172 at [49]. A finding as to whether there is a sufficient dividing fence is therefore fundamental to the making of orders under section 14 of the DFA.

  2. Whether or not there is currently a sufficient dividing fence is a matter of degree involving consideration of all relevant circumstances, including the circumstances set out in s 4 of the DFA: see Purcell v Chadwick [2018] NSWCATAP 250 at [28]. What weight, if any, is given to the matters set out in s 4 (a)-(g) of the Act (and any other relevant circumstances) is a matter for the Tribunal to determine based on the evidence in the case: see Nicholls v Fortmann [2020] NSWCATAP 52 at [33]. There is nothing in s 4 to mandate the weight to be given to the various factors in s 4(a)-(g) or any other relevant circumstance or that stipulates that one factor is to be given greater weight than any other factor.

  3. It is apparent from DFA s14(1)(d), which contemplates the Tribunal making orders in respect of ‘portions’ of a dividing fence being replaced or repaired, that in determining whether a dividing fence is sufficient, it may be viewed in portions or sections.

  4. In the present case the Tribunal has considered all of the circumstances including the criteria set out in s 4 of the DFA and the orders that may be made under s 14.

  5. The current dividing fence consists of a brick fence that has served the purpose of a dividing fence between the two properties for more than 26 years. While it is not centred precisely on the boundary, save for a section at the southeastern end, it touches or sits on the boundary between the two properties for the entirety of its length. At the northeastern end it sits within the respondent’s property and touches the boundary. At the southeastern end it sits entirely on the applicant’s property.

  6. The fact that a fence is not centred precisely on the boundary is not determinative of whether the fence may constitute a sufficient dividing fence. In Purcell at [36] the Appeal Panel said:

36 Whether a particular encroachment is such as to render the fence insufficient, within the meaning of the Act, requires a consideration of the nature and extent of any encroachment. In this regard, it seems to us that some deviations from the boundary line are permissible and would not justify a conclusion that any existing fence, in a good state of repair, was otherwise insufficient. For example, it is self-evident that minor deviations from the boundary line or deviations from the boundary line due to the varying width of fencing materials would not usually render a fence insufficient.

  1. On that basis the Appeal Panel in Elwell found (at [59]) that

While there might be an encroachment, in our opinion the evidence does not establish that the position of the fence off the boundary meant the fence was not a sufficient dividing fence. The fence had been in its current position (save for the section at the front which had been replaced by the respondents) for a period in excess of 10 years. It operated satisfactorily as a dividing fence, a matter which the appellant did not seek to challenge at any time from when the fence was built up until she found that the fence was not on the boundary line.

  1. In the present case the current dividing fence has been in place for at least 26 years and has satisfactorily served the purpose of a boundary fence. The Tribunal does not consider that as a factor taken on its own, the position of the current dividing fence off the boundary means that the fence is not a sufficient dividing fence.

  2. A report from MBC Engineering states ‘the existing fence significant cracked (ref to attached picture below)’. The report also states ‘the existing fence has not been designed and built as per AS 3700.2018 Masonry Structure Ch 4.6 Design for robustness’ and ‘cannot withstand min. 0.5Kpa out of plan load.’ The report concludes ‘In my opinion the existing fence was not structurally adequate and this brick fence could collapse at any time especially under big wind pressure. Our office recommend this brick fence need to be demolished as soon as possible.’

  3. The respondents reject the suggestion that the current dividing fence is unsound. The author of the MBC Engineering report was not made available for cross examination and the report has not addressed the questions whether the whole of the fence is ‘not structurally adequate’ or only the part where the cracks are apparent as indicated in the photos attached to the report, and does not address the question whether the fence can be made safe through repairs.

  4. The photographic evidence to which the report refers shows that at the southeastern end of the current dividing fence (being the section that sits predominantly on the applicant’s property, and is marked with an arrow on the attached survey) the brick wall is starting to crack. This is the section that sits directly behind the Respondents’ outdoor storage area (marked ‘X’ on the survey). The balance of the boundary fence, from the vicinity of the pier at the northeast corner of the respondent’s outdoor storage area to the corner that adjoins the neighbouring property marked ‘A’ on the survey, appears to be in reasonable to good repair. It has been in place for at least 26 years and does not look like it is liable to collapse. It certainly does not look like it couldn’t be made good through repairs.

  5. Excluding the southeastern section of the boundary fence that sits directly behind the Respondents’ outdoor storage area, the Tribunal is not satisfied that the current dividing fence is insufficient.

  6. The southeastern section of the fence that sits predominantly or entirely on the respondents property, behind the respondents’ outdoor storage area (and marked with an arrow on the survey annexed), presents a different story. Cracks are apparent and will presumably get worse without attention. Further, the Tribunal notes that this section of the fence is not centred on the boundary and encroaches into the applicant’s pathway down the side of the new outbuilding such that it may impede their use of that pathway.

  7. In Purcell, at [25]-[27], the Appeal Panel said of s 4:

25 The section provides a list of factors as part of an inclusive definition, and otherwise requires the Tribunal “to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of [the Act]”. It is inappropriate to attempt to prescribe all the circumstances which might be relevant.

26 However, as is evident from the list of factors in the Act, they include a consideration of the existing fence, the purposes for which “the adjoining lands are used or intended to be used”, and the “privacy or other concerns of the adjoining landowners”.

27 Taken together, it is clear that the nature of the adjoining land, and how a landowner wishes to use and enjoy their land, are relevant factors in determining the sufficiency of a fence.

  1. The circumstances in the present case when taken together lead the Tribunal to conclude that the southeastern section of the current dividing fence is not sufficient. In particular, this section of the current dividing fence is showing clear signs of cracking and loss of structural integrity. Additionally, in its present position it will likely impact the applicant’s use of the pathway down the side of the new outbuilding. It is reasonable for the applicant to wish to use this path and not have the fence encroach into the path more than is inevitable by virtue of the width of fencing materials.

Fencing works

  1. Orders as to fencing work which the Tribunal may make include orders for the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence.

  2. In the present case the Tribunal must consider whether the southeastern section of the boundary fence should be repaired or replaced, and if replaced, what kind of fence it should be replaced with.

  3. As noted earlier, the southeastern section of the current dividing fence encroaches to an extent onto the applicants’ land with the result that the start of the pathway down the side of the outbuilding is restricted. For that reason, the Tribunal considers that this section of the current dividing fence should be demolished and replaced. The new section of fence should be built so that it is centred on the true boundary line as determined by the parties’ survey reports.

  4. Whilst the applicant would prefer a Colourbond fence to match the rest of the fence that they have installed or propose installing, the respondents want to retain the style of fence that is already there, and do not want a Colourbond fence.

  5. Given that the balance of the current dividing fence will not be demolished, and that the respondents side fences are in the same style as the current dividing fence and have been in place for more than 26 years, the new fence should be built in brick, in a style and to a height that matches the remainder of the current dividing fence, and in such a way that the south end corner provides the appropriate support for the side fence where it meets the boundary fence. If the builders can conveniently and safely reuse the existing bricks to assist with matching, and if both the applicant and the respondents agree, the builder should be instructed to do so.

  6. The applicant has stated that she will construct a Colourbond fence on her side of the boundary if the Tribunal does not order that a new dividing fence be installed in Colourbond. That is a decision open to the applicant. She has already done just that in relation to the section of her boundary fence adjoining the neighbouring property marked ‘A’ on the survey.

  7. Section 14(c) of the DFA allows the Tribunal to make orders regarding the contributions to the costs of fencing work. The Tribunal considers that the cost of demolition of the section of the current dividing fence indicated with an arow on the annexed survey should be borne by the parties in equal shares of 50% each, and the costs of construction of a new brick fence centred on the true boundary should similarly be borne by the parties in equal shares of 50% each.

  8. The Tribunal may also make orders about the time for the work to take place, and which owner will be responsible for ensuring that the work occurs.

  9. Both parties have an interest in ensuring the work is carried out. The applicant is keen for the work to be undertaken promptly, and for the fence to be centred on the true boundary line. The applicant has also been working with builders and other tradespeople in the course of building on her property and seems to be best placed to identify a suitable fence builder to undertake the task. The respondents are keen to ensure the work is undertaken properly, including so that the new fence continues to provide the necessary support where it connects with the side fence.

  10. The Tribunal considers that the most practical resolution is for the applicant to engage a suitable fence builder to undertake the fencing work. The fence builder, having the suitable expertise, is to identify the extent to which the section of the current dividing fence that sits behind the respondents’ outdoor storage area will need to be demolished and replaced in order to achieve a functional quality end product. The applicant will provide a copy of the description of the job and the quote received for the work to the respondents at least 2 weeks before commencement of the fencing work. The fence builder is also to answer any questions the respondents may have about the work, before the work commences.

  11. The fencing work is to be carried out in a good and workmanlike manner. The new section of fence is to be constructed in such a way as to neatly continue on from the remaining section of the current boundary fence and to continue to provide support to the adjoining side fence where the two fences meet.

  12. The respondent is to pay their contribution being 50% of the fencing work direct to the applicant after completion of the work.

The applicant’s costs

  1. The applicant seeks her costs of engaging an expert and 50% of her legal costs.

  2. Under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) each party is to pay its own costs of proceedings unless the Tribunal is satisfied that there are special circumstances warranting an award of costs.

  3. The Tribunal does not consider that there are special circumstances warranting an award of costs. Each party has had some degree of success. Both parties have incurred costs. Neither party has acted unreasonably.

Conclusion

  1. For the reasons set out above the Tribunal makes the following orders:

  1. The portion of the current dividing fence (marked with an arrow on the annexed survey) that is situated wholly or predominantly on the applicant’s property and sits behind the respondents’ outdoor storage area (marked with an ‘X’ on the annexed survey) is to be demolished and removed, with care being taken to ensure that the adjoining side fence is supported and not destabilised in the process.

  2. In place of the portion of the current dividing fence that is demolished, a new section of fence is to be constructed, in a style and to a height that matches the remainder of the current dividing fence. The new section of fence is to be centred on the boundary line between the two properties.

  3. The new section of fence is to be built so as to connect to and provide the appropriate support for the remainder of the current dividing fence and the side fence where it meets the new section of fence.

  4. The applicant may engage a suitable fence builder to undertake the work referred to in orders (1) to (3) (the fencing work). The fence builder, having the suitable expertise, is to identify the extent to which the section of the current dividing fence that sits behind the respondents’ outdoor storage area will need to be demolished and replaced in order to achieve a functional quality end product. The applicant will provide a copy of the description of the job and the quote received for the fencing work to the respondents at least 2 weeks before commencement of the fencing work.

  5. The fencing work is to be carried out in a good and workmanlike manner, and (except in so far as the parties agree to the reuse of bricks from the section of the current dividing fence that is demolished), using new materials.

  6. The fencing work is to be paid for by the applicant.

  7. Following completion of the fencing work, the applicant is to send to the respondents a copy of the tax invoices for the fencing work.

  8. Within 14 days of receipt of the relevant tax invoices, the respondents are to pay the applicant 50% of the cost of the fencing work.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 24 October 2025

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Statutory Material Cited

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Alwiah v Watts [2004] NSWSC 948
Larney v Johannson [2013] NSWCA 409