Gillard v Russell

The matter before the court involved a dispute between the applicants, Gillard, and the respondent, Russell, regarding the construction of a dividing fence and retaining wall between their adjacent properties. The applicants sought orders to determine the location of the common boundary and the construction of the fence and retaining wall. The court was required to determine the common boundary line and the appropriate construction of the fence and retaining wall in accordance with the law.

The legal issues before the court were whether the retaining wall beneath the dividing fence should be considered as a foundation or footing to the dividing fence, and whether section 18 of the Dividing Fences Act 1991 applied to the case. The applicants argued that the retaining wall should not be considered as a foundation or footing to the dividing fence, and that section 18 did not apply because the retaining wall was not a permanent structure. The respondent argued that the retaining wall should be considered as a foundation or footing to the dividing fence, and that section 18 applied because the retaining wall was necessary for the support of the fence.

The court held that the retaining wall should be considered as a foundation or footing to the dividing fence, and that section 18 of the Dividing Fences Act 1991 applied to the case. The court found that the retaining wall was necessary for the support of the fence and that it acted as a retaining wall and footing or foundation and plinth for the proposed dividing fence. The court also found that the common boundary line should be centred on the line defined by the registered surveyors, Pinnacle Land Surveyors. The court ordered that a new dividing fence be constructed at the joint cost of the parties, and that the retaining wall be constructed of treated pine sleepers placed on their side and fixed so that they act as a retaining wall and footing or foundation and plinth for the proposed dividing fence.

The court further ordered that the applicants were to pay the respondent $1,177.00 as their contribution to the survey work carried out by Pinnacle Land Surveyors to identify the common boundary. The court also made facilitating orders regarding the selection of a fencing contractor, the exchange of quotes, and the payment of costs. Each party was ordered to pay their own costs.