Cherian v Roy

[2017] ACAT 106

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CHERIAN & ANOR v ROY (Civil Dispute) [2017] ACAT 106

XD 795/2017

Catchwords:              CIVIL DISPUTE – fences – duty of owners to contribute – resiling from agreements- contribution not optional

Legislation cited:      Common Boundaries Act 1981 ss 4, 10

Tribunal:                   Senior Member A Anforth

Date of Orders:  10 November 2017

Date of Reasons for Decision:         13 December 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 795/2017

BETWEEN:

JOSEPH CHERIAN and DEEPA AMBALAKUNNIL

Applicants

AND:

THUSHAR ROY

Respondent

TRIBUNAL:   Senior Member A Anforth

DATE:10 November 2017

ORDER

The Tribunal orders that:

1.The respondent pay the applicants the sum of $1,373.48 by 24 November 2017.

……………Signed………..

Senior Member A Anforth

REASONS FOR DECISION

Overview

1.This is a dispute over a common boundary for two residential houses in the ACT. The matter comes to the Tribunal as a dispute under section 10 of the Common Boundaries Act 1981 (Common Boundaries Act)

2.The applicants and the respondent live on adjacent land in Coombs (ACT) in a new housing development. In March 2015 the applicants moved into their house with their young children and dog. The respondent owned the adjacent plot but had not commenced construction of a house. There was no existing fence between the plots. The construction of a mutual fence was regulated by the terms of the Development Approval for the Coombs estate and the Common Boundaries Act.

3.Shortly after moving in, the applicants reached an agreement with the respondent to build a colourbond dividing fence being a colour that matched the existing colourbond on the other side boundary of the respondent’s land. The applicants obtained quotes and sent them to the respondent. The quotes set out the height and colour of the proposed fence. The initial agreement was that the applicants would build half of the fence immediately and the respondent would build his half when he commenced construction of his house. The applicants complied with the agreement.

4.By July 2016 the respondent had still not commenced construction. The applicants spoke with him and explained that half a fence was of no use in restraining their young children and dog. The respondent said he could not afford to start construction or to build his half of the fence. The applicants went ahead and completed the respondent’s half of the fence at their own cost with the agreed material, height and colour. They provided a copy of the invoice to the respondent.

5.The respondent did not commence construction until February 2017. At that time the parties again spoke and the respondent advised the applicant that he could not afford to reimburse them for his half of the fence cost until December 2017. The respondent said that he was no longer happy with the colour and that he may install yellow panels on this side of the fence. For this reason he did not think that he should have to pay for any part of the existing fence costs. He has not paid anything to date.

6.It seems that Mr Roy is also in dispute with other neighbours over a similar tactic adopted by him to avoid paying for any of the fences.

7.Before the Tribunal the respondent argued that he had no duty to contribute to the common boundary fence or that any contribution was entirely optional on his part. He advanced a range of arguments in support of this conclusion. These arguments are set out below. The Tribunal addressed and rejected each argument and ordered the respondent to pay half of the fence cost.

History in the Tribunal

8.On 5 July 2017 the applicant lodged a claim with the Tribunal seeking an order that the respondent contribute to the cost of a colourbond fence constructed on their mutual boundary. The claim was for $1,155 plus the Tribunal lodgement fee of $72. The applicants appended a chronology of relevant events, photos of text communications with the respondent evidencing the above agreements, photos of the site and invoices for construction costs.

9.On 2 August 2017 the respondent filed his response together with photos of his new house and the fence. There was a handwritten response provided on the Tribunal’s response form and a typed ‘addendum’.

10.The respondent said that he was not prepared to pay any of the cost of the fences because the colour did not match the colour scheme chosen for the house he had now built. He said that he should not have to contribute:

(a)until he has constructed his house; and

(b)provided that he is then satisfied with the colour match.

11.The respondent said that there had been a change of colour plans between the time the existing boundary fence had been constructed and when the final plans for his house were completed. At this later time the existing fence colour did not match that of the house.

12.The respondent said that he intended to put his own duplicated panels of his own colour choice along the existing colourbond fence (on his side of the boundary) and that this cost absolved him of any responsibility for half the cost of the boundary fence. The respondent said that he was having the same issues with his other neighbours.

13.The respondent described the applicants’ claim as “irrational, unreasonable, illogical and unacceptable” and accused the applicants of harassing him “for no reason”. He described their behaviour as “erratic”.

14.The matter was scheduled for conciliation and immediate determination on 10 November 2017. This is list is for small claims and envisages that if the matter does not settle at conciliation then it was be immediately heard to finality by a Tribunal member. It assumes that any final hearing will need to proceed on the basis of such evidence as is before the Tribunal and the evidence the parties present at the hearing. On 1 September 2017 the Registrar issued directions to the parties to file and serve evidence to be relied upon and to have relevant witnesses present in person or by phone on 1 November 2017.

15.On 20 September 2017 the applicants filed their statement which essential repeats their prior assertions. Annexed was a statement from Ljubica Markovic whose land is also adjacent to that of the respondent. He said that he also has proceedings in the Tribunal against the respondent to recover half the cost of their boundary fence. Mr Markovic said that in April 2015 he had paid for the whole fence on an agreement with the respondent that the respondent would reimburse them once construction of his house had started. The respondent has refused to do so and has raised the same objection about the non-matching colour schemes.

16.On 10 November 2017 the matter did not settle at conciliation and was referred for immediate determination. The parties were present in person and Mr Markovic was present.

17.At the hearing the respondent repeated several basic submissions, namely that he should not have to contribute to the cost of the boundary fence:

(a)until he was ready to do so; specifically until he had constructed his house;

(b)where he was under financial stress;

(c)where he was not sure if he was going to sell the house and block; and

(d)where he was going to incur the cost of internal fences including one parallel to the new boundary fence.

18.The respondent repeated the submission that he whether he contributes to the cost of the fence should be a matter for him to determine in the light of his own personal circumstances.

19.The Tribunal informed the respondent that each of these submissions was misconceived. The duty to fence was:

(a)a condition of development approval for the subdivision of the land and the construction of the house, as it is for all residential developments in the ACT and was not optional. A failure to fence would be a breach of the development approval;

(b)further regulated by the Common Boundaries Act which starts with the right of one neighbour to insist on a common boundary fence. Under the Act the duty to fence was not a matter of mere choice on the respondent’s part depending on his feelings (aesthetic factors) and financial capacity at any point in time;

(c)runs with the land such that the respondent’s duty to fence arose from the point he came into title. It did not depend on his future intention for the land;

(d)does not depend upon whether he had decided to build on the land or not; and

(e)related to the boundary fence (for which there is only one) and was not affected by any decision of the respondent to build internal fences including any internal fence parallel to a boundary fence.

20.The right of one neighbour to insist on a common boundary fence is consistent with the common law duty of a land owner to fence in all things or effects that may emanate from their land and adversely affect the neighbours land. For example, any injuries to the applicants’ children caused by a dog gaining access to their back yard via the respondent’s unfenced property may result in liability on the part of the respondent. The common boundary fence is the mechanism for this problem.

21.Issues such as the colour and height of the fence were issues to be canvassed in the first instance when agreeing on the common fence. The evidence disclosed that the respondent was consulted and did agree to the height and colour of the fence; and did authorise the applicant to proceed with its construction. The respondent then argued that:

(a)an oral agreement was not binding on him; and

(b)he had undergone a change of mind on the colour issue but only after the colour scheme of this house had been finally determined.

22.The Tribunal informed the respondent that an oral contract was binding but in any event he had communicated his assent via text messaging.

23.On the issue of his right to change his mind, the Tribunal informed the respondent that it too late for that after he had agreed and the applicant had expended the cost of erecting the whole of the fence. The Tribunal explained that there was a contract once the applicant incurred the cost and that it was unconscionable for the respondent to seek to resile from the agreement after he had benefit of the fence and the free use of the applicants’ money for his half of the fence.

24.The alleged financial difficulties of the respondent would be relevant only to the question of the kind of fence and payment regime. In this case the Tribunal does not accept that the proposition was seriously put. The respondent was intending to construct a whole new fence on his side of the boundary line of a colour that matched his new house. He obviously had the funds for that. In any event when someone buys a new block of land, whether or not they commission the construction of a house, the cost of fencing is a cost of the acquisition. The Tribunal was of the view that the respondent’s motivation was entirely an opportunistic one.

25.The hearing was terse and the Tribunal openly communicated its dismay that the respondent could seriously believe that the duty to contribute to the fence was entirely optional on his part.

26.The Tribunal ordered that the respondent pay the applicants the sum of $1,373.48 by 24 November 2017.

………………………………..

Senior Member A Anforth

HEARING DETAILS

FILE NUMBER:

XD 795/2017

PARTIES, APPLICANT:

Joseph Cherian and

Deepa Ambalakunnil

PARTIES, RESPONDENT:

Thushar Roy

COUNSEL APPEARING, APPLICANT

N/A

COUNSEL APPEARING, RESPONDENT

N/A

SOLICITORS FOR APPLICANT

N/A

SOLICITORS FOR RESPONDENT

N/A

TRIBUNAL MEMBERS:

Senior Member A Anforth

DATES OF HEARING:

10 November 2017