Bavcangiovski v Kwan - [2025] NSWCATCD 117

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)

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 Bavcangiovski v Kwan

Details

AGLC: Bavcangiovski v Kwan [2025] NSWCATCD 117
Case: [2025] NSWCATCD 117
Decision Date: 20 August 2025

CaseChat Overview and Summary

The case of Bavcangiovski v Kwan involved a dispute over the maintenance and construction of a dividing fence between two neighbouring properties. The applicant sought relief from the court regarding the condition of the existing fence, which they claimed was deteriorating and unsafe. The respondents opposed the application, arguing that the fence was not their responsibility to maintain. The matter was heard in the Local Court of New South Wales, which was tasked with determining the legal obligations of both parties concerning the fence.

The primary legal issues before the court were the identification and enforcement of the parties' respective obligations under the Local Government Act 2019 (NSW) regarding the maintenance and construction of the dividing fence. The court had to determine whether the existing fence was indeed a dividing fence as defined by the Act and whether the applicant had the right to require the respondents to contribute to the costs of its repair or replacement. Additionally, the court needed to decide on the appropriate method for replacing the existing fence and the division of costs between the parties.

The court found that the existing fence qualified as a dividing fence under the Local Government Act 2019 (NSW). It concluded that the applicant was entitled to require the respondents to contribute to the costs of replacing the section of the fence that was unsafe. The court ordered the demolition and replacement of the unsafe section with a new section of fence that matched the existing structure in style and height, centred on the boundary line. The applicant was permitted to engage a fence builder to carry out the work, with the costs to be borne solely by the applicant. Following the completion of the works, the respondents were required to pay 50% of the cost of the fencing work within 14 days of receiving the tax invoices from the applicant.

The court issued several orders to enforce the replacement and maintenance of the dividing fence. The specific portion of the current dividing fence situated on the applicant’s property was to be demolished and removed, with a new section constructed in its place. The new section had to be built to match the existing fence and properly support the adjoining fences. The applicant was allowed to hire a qualified fence builder to undertake the work, ensuring it was completed in a good and workmanlike manner using new materials unless otherwise agreed. The applicant bore all costs associated with the fencing work, including providing a quote to the respondents before commencing the work. Upon completion, the applicant was to provide the respondents with copies of the tax invoices, after which the respondents had to pay 50% of the fencing work costs within 14 days.

Orders

Orders of the court

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)