Boundary Fences Act 1908 (TAS)

The case involves a dispute between two property owners, Mr. Smith and Mr. Brown, under the provisions of the Boundary Fences Act 1908 (TAS). The primary issue before the court was whether Mr. Smith was entitled to compel Mr. Brown to contribute to the erection of a fence between their adjoining properties, and if so, what proportion of the costs each party should bear. The legal issues revolved around the interpretation and application of the Act, particularly sections 8, 9, and 12, which deal with the obligation of adjoining owners to share the cost of erecting a sufficient fence, the notice requirements, and the circumstances under which a fence may be erected without consent.

The court found that Mr. Smith had correctly served a notice to fence under section 9 of the Act, as required by the statutory form and particulars. The court also determined that the 30-day period stipulated in section 12 had lapsed without Mr. Brown entering into an agreement or lodging an objection, thus allowing Mr. Smith to proceed with erecting the fence. Regarding the proportion of costs, the court referred to section 8, which mandates that the costs be borne in proportions agreed upon or awarded by arbitration. As no agreement had been reached and no arbitration had been conducted, the court held that the matter should be referred to arbitration to determine the equitable share of costs between the parties.

The court ordered that the dispute over the cost-sharing of the fence be resolved through arbitration in accordance with the Commercial Arbitration Act 2011. Additionally, the court directed that Mr. Brown was liable to contribute to the costs of the fence erected by Mr. Smith, pending the outcome of the arbitration.