Baypeak Pty Ltd v Lim

Baypeak Pty Ltd appealed against a decision of the Magistrates' Court that it was liable to construct or join in the construction of a dividing fence along an unfenced portion of the boundary between its property and that of Lim, the respondent. The appeal was heard in the Supreme Court. The fundamental issue before the court was whether the appellant and the respondent were required, under section 4 of the Fences Act 1968, to build or contribute to the construction of a dividing fence along the unfenced boundary between their properties, which was subject to an easement of carriageway. A further question was whether the proposed fence and gate would constitute an unreasonable or substantial interference, or a diminution of, any rights of the dominant tenement.

The court examined the relevant provisions of the Fences Act and considered precedents such as Pettey v Parsons, Hose v Cobden, Gohl v Hender, Dunnell v Phillips, Wilson v Bahr, Saggers v Brown, and Butler v Muddle. It determined that, under the Act, the appellant and the respondent were indeed liable to construct or join in the construction of a dividing fence along the unfenced boundary. However, the court also found that the proposed fence and gate would not unreasonably or substantially interfere with, or diminish, any rights of the dominant tenement. The court balanced the rights and obligations of both parties, taking into account the easement of carriageway and the nature of the proposed fence and gate.

In light of the findings, the court allowed the appeal and set aside the decision of the Magistrates' Court. The court made orders that the appellant and the respondent were required to construct or join in the construction of a dividing fence along the unfenced boundary, subject to the conditions that the fence and gate would not unreasonably or substantially interfere with, or diminish, any rights of the dominant tenement. The court also ordered that the parties bear their own costs of the appeal.