Delev v Solangaarachchi (Civil Dispute)

Delev v Solangaarachchi was a civil dispute heard by the Civil Dispute Tribunal of New South Wales. The applicant, Mr Delev, sought a determination under section 11 of the Common Boundaries Act 1981 concerning the repair of a fence which formed a boundary between his property and that of the respondent, Mr Solangaarachchi. The applicant argued that the fence was in need of repair, that the repair required the removal of materials attached by the respondent which were not part of the original fence, and that the respondent should undertake the repair work. The respondent contended that he was not obligated to carry out the repair work, and that if the applicant did undertake the repair, he should be responsible for any costs incurred.

The primary legal issue the Tribunal had to decide was whether the fence was in need of repair, and if so, what form that repair should take and who should bear the cost. The Tribunal also needed to determine whether the applicant could lawfully enter the respondent's property to carry out the repair if the respondent failed to do so within the prescribed period.

The Tribunal found that the fence was indeed in need of repair and that the repair work should involve the removal of materials that the respondent had attached and which were not present when the fence was originally constructed. The Tribunal ordered that the respondent must undertake the repair work within 28 days, at his own expense. If the respondent failed to do so, the applicant could enter the respondent's property to carry out the repair work, provided he gave seven days' notice. If the applicant incurred expenses of $50 or less in doing so, the respondent was to pay those expenses. The Tribunal considered the principle of equal cost sharing between the parties but concluded that in this case, the respondent, as the party who had necessitated the repair, should bear the cost.

The Tribunal ordered that the respondent must carry out the repair work within 28 days from the date of the order. If the respondent did not do so, the applicant could enter the respondent's property to carry out the repair work, provided he gave the requisite notice. If the applicant incurred expenses of $50 or less, the respondent had to pay those expenses. The term "the repair work" was defined as the removal of materials attached by the respondent that were not present when the fence was originally constructed.