Benedikovics v Carreno

[2025] NSWCATCD 110

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Benedikovics v Carreno [2025] NSWCATCD 110
Hearing dates:	5 August 2025
Date of orders:	11 August 2025
Decision date:	11 August 2025
Jurisdiction:	Consumer and Commercial Division
Before:	P Moran, Senior Member
Decision:	The Application is dismissed.
Catchwords:	DIVIDING FENCE – fencing work notice – sufficient dividing fence
Legislation Cited:	Dividing Fences Act, 1991 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Edward Benedikovics (applicant) Luis Carreno; Biljana Carreno (respondents)
Representation:	Applicant: self-represented Respondents: self-represented
File Number(s):	2025/00174577
Publication restriction:	Nil

REASONS FOR DECISION

Background and Application

1. The applicant and the respondents are adjoining owners of properties in [address], Gwynneville NSW.

2. By Application lodged with the Tribunal on 7 May 2025 the applicant, being the owner of [address], says that after constructing a new house on his property he sent a fencing notice to his adjoining owners at number 7; Mr and Mrs Carreno, requesting that a new colourbond fence be installed to replace the existing colourbond fence that divides the two properties.

3. In that section of an Application where an applicant is asked to record the reasons for the order sought the applicant says that the existing fence is in a decrepit state and that it has, in part, large holes and cuts which pose a health and safety risk to his children and elderly parents. He also says that the highest point of the fence is only 150 centimetres and that part of the fence is crooked. Another part, he says, is encroaching on his land.

Jurisdiction

4. Section 13(1) of the Dividing Fences Act, 1991 (NSW) (DF Act) gives the Tribunal jurisdiction to hear and determine any matter arising under the Act. Section 14(1) provides that in respect of an application under the Act the Tribunal may make an order determining any one or more of the matters set out in (a) to (g) of subsection(1) including the boundary or line on which fencing work is to be carried out, fencing work to be carried out, the manner in which contributions for such fencing work are to be apportioned, which proportion of the dividing fence is to be constructed or repaired by either owner and the time within which fencing work is to be carried out. The Tribunal can also make an order – per subsection(1)(g) – that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of adjoining lands.

5. Section 11(1) provides that an adjoining owner may require the other adjoining owner to contribute, under the Act, to the carrying out of fencing work by service a notice in writing to the effect to the other owner. Subsection (2) sets out what the notice is to specify including the boundary line on which the fencing work is proposed to be carried out, the type of fencing work proposed to be carried out and the estimated cost of the work.

6. Section 12(2) sets out the procedure when adjoining owners do not agree – within a month after one of them has served a notice under s11 – as to the fencing work to be carried out. This subsection provides that either owner may in such circumstances apply to the Tribunal for an order determining the manner in which fencing work (if any) is to be carried out.

7. The Tribunal has, I find, jurisdiction to hear and determine the Application.

Hearing

8. The Application was heard on 5 August 2025. The applicant and the respondents represented themselves. Documents relied upon by the applicant were admitted and marked Exhibit A. Those relied upon by the respondents - R1 and R2.

Applicant’s Evidence

9. Pages 3 to 5 of Exhibit A1 is what I will take to be the applicant’s statement. He says that his land was purchased in September 2022 and that the existing dwelling was knocked down and a new dwelling constructed. He says he sent a Fencing Notice to the respondents by way of letterbox drop on Sunday 6 April 2025. The Fencing Notice is not in evidence.

10. The applicant requests the Tribunal make an order for a new colourbond fence to replace an existing colourbond fence; 1.8 metres high at the back and 1.2 metres high at the front. He also asks that the fence posts, rails and plinths be re-aligned due to, he says, the existing fence encroaching on both blocks of land at different points. He says the front of the fence encroaches on the respondents land by 11 centimetres and that the rear of the fence encroaches onto his land by 13 centimetres.

11. He contends that the existing fence has what he describes as large, sharp holes and cuts in it which he says poses a health and safety risk for his young children and elderly parents.

12. The applicant further says that the existing fence is old due to wear and tear. He will not be able to receive an occupation certificate from the local council unless a side concrete path (ie adjacent to the fence) is completed, but contends that the path cannot not be constructed as his hired concreter could not “obtain a straight line” causing what he says would be structural and quality issues. He says his concreter requires a straight line fence to be constructed. There is no evidence from the concreter referred to.

13. The applicant further maintains that the highest point of the fence at the back is only 150 centimetres and that that creates privacy issues with neighbours being able to look into his backyard.

14. A survey is at pages 6 and 7 of Exhibit A1. That, however, only refers to the boundaries. It is dated 28 February 2025. A further survey dated 12 March 2025 is at pages 8 and 9. Paragraph 5 of the survey says that it is undertaken “with regard to the fencing only”. The author says that the relationship of the fencing survey to the boundaries is shown on the sketch attached to the report. The sketch shows lots 8, 9 and 10. The applicant’s lot is lot 9 and the respondent’s lot is lot 8. The sketch shows that the fence protrudes into the respondents lot by 11 centimetres at the front and 13 centimetres at the rear. The fence protrudes into the applicant’s property by 19 centimetres in the middle of the property. Photographs of the fence are shown at pages 10, 11, 12,13 and 14 of the Exhibit.

15. Further documents were lodged by the applicant at the Tribunal on 17 June 2025. They are contained within the same Exhibit. They comprise two quotations, one of Sublime Surrounds dated 24 March 2025 and the other of T and J Landscaping Pty Limited.

16. At the hearing the applicant submitted that he seeks an order under the DF Act for fencing work to be carried out pursuant to the Sublime Surrounds 24 March 2025 quotation. That refers to the removal of the existing colourbond fence and the installation of an 1800 millimetre “Wallaby” colourbond fence. The quoted amount is $9570 however the terms of the quote provide an expiry date of 24 April 2025, ie prior to the hearing. The quotation, by its terms, does not refer to that section of the fence that is required to be 180 centimetres and that section of the fence – presumably at the front – to be 120 centimetres.

17. A photograph at page 22 of the Exhibit depicts four panels of the fence. The photos were taken from the applicant’s property. They show various sections of those four panels being damaged. The applicant says that the crooked nature of the fence line is depicted in the photographs at pages 20 and 21.

18. At the Tribunal hearing the applicant said that his premises requires concreting and landscaping but the concreting could not be undertaken as the fence was “crooked”. He contends that the fence needs to be re-aligned and, at points, encroaches “each way”. He further says that the photographs appearing at pages 8 and 10 of Exhibit R1 show that the fence has “pushed over” onto his property. He maintains that a concrete pathway is required to be constructed so that he can obtain an occupation certificate but that his concreter had informed him that a concrete path could not be put down because of the condition of the fence. The applicant asserts that the fence was 25 years old and in a “decrepit” state with holes in it at different points.

19. The applicant, at the hearing, sought a further order that the respondents bear 50% of the cost of the fencing work.

Respondent’s Evidence

20. The respondents at page 3 of Exhibit R1 deny the claims made in the Application of the fence not being a sufficient dividing fence.

21. They say that the existing fence is appropriate to restrict unauthorised access and screening, was constructed by professional fencing contractors and replaced an existing wooden fence.

22. They maintain that the majority of fences in the area are 1.5 metre high colourbond fences; that the existing fence is structurally “solid/sound”, adequately separates the properties and has effectively served its intended purpose. They say that the fence “closely follows” the boundary line and is “reasonably” straight.

23. The respondents conceded that of the 16 panels of the existing colourbond fence, four have “small holes and dents”. They say that those issues do not impact the structural integrity or function of the fence.

24. Photographs of the existing fence are at pages 8 to 15 of Exhibit R1. The photos on pages 16 show the fence being damaged by falling bricks in 2014. As I understand the applicant’s evidence the damaged panels were reinstated albeit with some dents remaining. A further photograph of the existing fence is depicted in the bottom photograph at page 24.

25. A survey report of the boundary of the adjoining properties is at pages 25 and 26; page 26 showing that the fence encroached onto the adjoining property by between 1 centimetre and 1.2 centimetres.

26. The respondents concede at page 29 of Exhibit R1 that they received a Fencing Notice in the letterbox on 6 April 2025. They say, however, that the notice did not provide any quotes or other details. They further say that the notice was not completed correctly in that it did not describe the amount that that applicant intended the respondents ought pay.

Consideration and Findings

27. The Application fails for two reasons.

28. Firstly, s12(2) of the DF Act permits an adjoining owner to apply to the Tribunal for an order determining the manner in which fencing work is to be carried out, however, that entitlement only applies if – per the wording of the subsection – adjoining owners do not agree within a month after one of them has served a notice under s11 as to the fencing work to be carried out.

29. There is no notice under s11 put into evidence by the applicant. Whilst the respondents concede receipt of a notice they say that it was deficient for the reasons explained earlier.

30. Subsection (2) of s11 mandates the matters that a fencing notice is to specify including such things as the boundary line on which the fencing work is proposed to be carried out, the type of fencing work proposed and the estimated cost of the fencing work.

31. As the Fencing Notice is not in evidence I am unable to find that a notice that includes the matters set out in the subsection has been served by the applicant such as to entitle him to then, under s12, invoke the jurisdiction of the Tribunal by seeking an order for the carrying out of fencing work.

32. The second reason why the application fails is because I am not satisfied, on the balance of probabilities, that the existing fence is other than a sufficient dividing fence.

33. The applicant does not rely on any evidence of an expert nature, or of a fencing contractor, in support of his contention of the existing fence being other than sufficient. He merely points to photographs and the survey report.

34. The respondents, however, rely upon a report of Zac’s Quality Fencing Pty Limited of 27 June 2025. The author of that report expresses the view, after having inspected the fence, that it is structurally sound and showing no significant signs of corrosion, leaning or instability. He says there are no visual defects or safety concerns that would warrant removal or replacement and that the fence complies with the Wollongong City Council guidelines under the Wollongong Development Control Plan, as well as applicable planning rules.

35. The author concludes his report by saying that the existing fence is in a very good condition, structurally secure and shows no evidence of needing replacement or significant repair. The author further says that there is no structural or safety related for the fence to be removed or replaced.

36. Whilst the photographs relied upon by the applicant do show that, in places, the fence line wobbles somewhat and whilst that is also confirmed by the survey report that the applicant relies upon, I am not persuaded that those issues, alone, render the existing fence other than a sufficient dividing fence. The fence divides two parcels of land on which are erected free standing houses. There is no evidence that the fence other than serves the purpose of an adequate dividing structure between the two properties. There is, for instance, no evidence that there is any hole in the fence through which an animal or child could pass, nor any evidence of the fence being in a dilapidated condition nor at any point being of a height below 150 centimetres. Having considered the matters in (a) to (f) of s4 I am not satisfied that the existing fence is other than a sufficient dividing fence.

37. If I were to be wrong in respect of either of the abovementioned reasons I would, nevertheless, exercise my discretion in declining to make an order for fencing work to be carried out because the applicant has – again – failed to discharge the onus of proof resting upon him as to precisely what work is sought to be carried out. He presses for an order to be made in accordance with the wording of the Sublime Surrounds quotation of 24 March 2025 however that quotation does not indicate the length of the section of fence which is to be 180 centimetres high nor the section of fence that is sought to be 120 centimetres high nor the distance along the boundary when the fence is to move from a 180 centimetre height down to a 120 centimetre height.

38. During the course of the hearing the applicant also referred to statements that had apparently been made to him by an unidentified concreter to the effect that as part of any fencing work certain concrete needed to be cut. There is no detail as to exactly what that process would involve. The Sublime Surrounds quotation – which the applicant presses for – is silent on the question of concrete cutting.

39. The applicant further referred at the hearing to being informed by, I infer, a fencing contractor, that a number of railway sleepers would need to be placed under the fence proposed to be constructed. Again, there is no detail provided and the Sublime Surrounds quotation does not mention the need for railway sleepers.

40. There is no building report or expert report that the applicant tenders from which the Tribunal could make an informed assessment as to precisely what work was required to be carried out.

ORDERS

1. The Application is dismissed.

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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: 22 October 2025