Gibbs v Draper - [2014] NSWCATCD 83

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gibbs v Draper [2014] NSWCATCD 83
Hearing dates: 5 December 2013, 31 January 2014, 6 May 2014
Decision date: 23 May 2014
Before: P Boyce, Senior Member
Decision:
The existing dividing fence between the applicant's and the respondents' adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders.
A new Colorbonded sheet metal dividing fence 1.8 metres high is to be erected on the common boundary line between the applicant's and the respondents' adjoining lands.
The fencing work is to be carried out by David Evans & Son in accordance with their quote of 16 October 2013 for a Colorbond fence.
The applicant is responsible for the cost of the fencing work including the cost of the fencing work for the approximately 18 metres of the dividing fence that forms his swimming pool child proof safety barrier.
The respondent's contribution to the cost of the fencing work will be 50% of the cost of 32 metres of fencing work as quoted by David Evans & Son ("Fencing Contractor") regardless of the final cost, that is, $1,371.52.
The applicant must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.
Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders.
The fencing work is to be carried out in a good and workmanlike manner using new materials.
The Fencing Contractor is to be paid on the day the fencing work is completed.
The respondents are to pay to the applicant their contribution, as ordered in these orders, within seven (7) days of completion of the fencing work, without deduction or allowance.

Catchwords: Dividing fence-swimming pool fence-type of fence sufficient.
Legislation Cited: Dividing Fences Act 1991
Crown Lands Act 1989
Swimming Pools Act 1992
Civil and Administrative Tribunal Act 2013
Cases Cited: Alwiah v Watts and anor [2004] NSWSC 948
Brown v Doyle [2012] NSWSC 1269
Larney v Johannson [2012] NSWSC 1297
Texts Cited: -
Category: Principal judgment
Parties: Ian Robert Gibbs (applicant)
Sharon Anne Draper (respondent)
Trevor William Draper (respondent)
Representation: MCW Lawyers (respondents)

File Number(s): COM 14/00233

reasons for decision

BACKGROUND

1. The applicant is the owners of land at 31 **************, Caringbah (called in these Reasons for Decision "the applicants' land").

2. The respondents are the owners of 29 *************, Caringbah (called in these Reasons for Decision "the respondents' land").

3. The applicants' and the respondents' lands adjoin and they share a common boundary.

4. Along the common boundary there is a hardwood timber paling fence 1.4 to 1.5 metres high.

5. On 14 January 2013 the applicant served on the respondents a notice pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gibbs v Draper

Details

AGLC: Gibbs v Draper [2014] NSWCATCD 83
Case: [2014] NSWCATCD 83
Decision Date: 23 May 2014

CaseChat Overview and Summary

The matter before the court involved a dispute between the applicant, Gibbs, and the respondent, Draper, regarding the type of fence to be erected between their adjoining properties. The court was tasked with determining whether a Colorbonded sheet metal fence was an appropriate choice for the dividing fence and swimming pool safety barrier. The court considered the requirements for a suitable fence under the relevant legislation and the agreement between the parties.

The key legal issue before the court was whether the proposed Colorbonded sheet metal fence met the necessary standards for a dividing fence and child-proof safety barrier for a swimming pool. The court examined the specific requirements outlined in the relevant legislation and any relevant agreements between the parties. The court also considered the practical aspects of the proposed fence, such as its height, material, and suitability for the intended purpose.

The court found that the proposed Colorbonded sheet metal fence was an appropriate choice for the dividing fence and swimming pool safety barrier. The court noted that the fence met the necessary standards for a dividing fence under the relevant legislation and was suitable for the intended purpose. The court also found that the fence was a practical and cost-effective solution for the parties. The court ordered that the existing fence be demolished and replaced with a new Colorbonded sheet metal fence, with the cost to be shared equally between the parties. The court also set out detailed orders for the construction and completion of the fence, including the appointment of a fencing contractor and the timeline for the work to be completed.

The court's final orders included the demolition and removal of the existing fence, the erection of a new Colorbonded sheet metal fence, and the sharing of costs between the parties. The court also set out detailed orders for the construction and completion of the fence, including the appointment of a fencing contractor and the timeline for the work to be completed. The court's decision provided clarity and certainty for the parties and resolved the dispute in a practical and cost-effective manner.

Orders

Orders of the court

The existing dividing fence between the applicant's and the respondents' adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders.

A new Colorbonded sheet metal dividing fence 1.8 metres high is to be erected on the common boundary line between the applicant's and the respondents' adjoining lands.

The fencing work is to be carried out by David Evans & Son in accordance with their quote of 16 October 2013 for a Colorbond fence.

The applicant is responsible for the cost of the fencing work including the cost of the fencing work for the approximately 18 metres of the dividing fence that forms his swimming pool child proof safety barrier.

The respondent's contribution to the cost of the fencing work will be 50% of the cost of 32 metres of fencing work as quoted by David Evans & Son ("Fencing Contractor") regardless of the final cost, that is, $1,371.52.

The applicant must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.

Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders.

The fencing work is to be carried out in a good and workmanlike manner using new materials.

The Fencing Contractor is to be paid on the day the fencing work is completed.

The respondents are to pay to the applicant their contribution, as ordered in these orders, within seven (7) days of completion of the fencing work, without deduction or allowance.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gibbs v Draper [2014] NSWCATCD 83
Hearing dates:	5 December 2013, 31 January 2014, 6 May 2014
Decision date:	23 May 2014
Before:	P Boyce, Senior Member
Decision:	The existing dividing fence between the applicant's and the respondents' adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders. A new Colorbonded sheet metal dividing fence 1.8 metres high is to be erected on the common boundary line between the applicant's and the respondents' adjoining lands. The fencing work is to be carried out by David Evans & Son in accordance with their quote of 16 October 2013 for a Colorbond fence. The applicant is responsible for the cost of the fencing work including the cost of the fencing work for the approximately 18 metres of the dividing fence that forms his swimming pool child proof safety barrier. The respondent's contribution to the cost of the fencing work will be 50% of the cost of 32 metres of fencing work as quoted by David Evans & Son ("Fencing Contractor") regardless of the final cost, that is, $1,371.52. The applicant must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders. The fencing work is to be carried out in a good and workmanlike manner using new materials. The Fencing Contractor is to be paid on the day the fencing work is completed. The respondents are to pay to the applicant their contribution, as ordered in these orders, within seven (7) days of completion of the fencing work, without deduction or allowance.
Catchwords:	Dividing fence-swimming pool fence-type of fence sufficient.
Legislation Cited:	Dividing Fences Act 1991 Crown Lands Act 1989 Swimming Pools Act 1992 Civil and Administrative Tribunal Act 2013
Cases Cited:	Alwiah v Watts and anor [2004] NSWSC 948 Brown v Doyle [2012] NSWSC 1269 Larney v Johannson [2012] NSWSC 1297
Texts Cited:	-
Category:	Principal judgment
Parties:	Ian Robert Gibbs (applicant) Sharon Anne Draper (respondent) Trevor William Draper (respondent)
Representation:	MCW Lawyers (respondents)
File Number(s):	COM 14/00233