Erratt v Grills

The proceedings in the Supreme Court of New South Wales involved the appellant, Erratt, and the respondent, Grills, who were neighbours in rural areas. The dispute centred on the boundaries of their respective properties, particularly concerning the ownership and legal status of a fence that ran along the creek between their lands. The court was asked to determine whether the fence constituted a "give and take" fence under the Dividing Fences Act 1991 (NSW), and to decide the legal incidents of this arrangement, such as the respective rights and obligations of the parties.

The primary issue was the interpretation and characterisation of the fence as a "give and take" fence. The court had to consider whether the arrangement between the parties, whereby each party used the fence for support while acknowledging the other's right to do so, met the statutory definition. Additionally, the court needed to determine the legal consequences of such a characterisation, including whether the agreement could be considered a contract of compromise and the rights of each party regarding the maintenance and repair of the fence.

The court examined the evidence and found that the fence indeed operated as a give and take fence under section 14 of the Dividing Fences Act 1991 (NSW). The court emphasised that a give and take arrangement arises when both parties recognise and accept the fence's utility for their respective properties, regardless of its precise location on the boundary line. This interpretation was supported by the parties' conduct and their understanding of the arrangement. The court also determined that the agreement constituted a contract of compromise, meaning that each party relinquished certain rights in favour of the other. Consequently, both parties were bound by the terms of the agreement, which included obligations related to the maintenance and repair of the fence.

The court ordered that the fence was to be maintained as a give and take fence, with each party responsible for half of its upkeep. The agreement between the parties was upheld as a valid contract of compromise, and the court enforced the terms of the arrangement, ensuring that both parties adhered to their respective obligations under the agreement.