Bavcangiovski v Kwan

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.