He v Hecker - [2013] NSWSC 1219

Supreme Court

New South Wales

Medium Neutral Citation: He v Hecker [2013] NSWSC 1219
Hearing dates: 21/08/2013
Decision date: 03 September 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The appeal is dismissed.
(2) The decision of Magistrate Bradd dated 22 April 2013 is affirmed.
(3) The summons filed 24 June 2013 is
dismissed.
(4) Costs are reserved.

Catchwords: APPEAL FROM LOCAL COURT - orders made for dividing fence, clearing of encroachments - whether error of law - whether procedural fairness afforded - appeal dismissed
Legislation Cited: Dividing Fences Act 1998
Encroachment of Buildings Act 1922
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405
Category: Principal judgment
Parties: Ji He (Plaintiff)
Allyson Hecker (Defendant)
Representation: Counsel:
Litigants in person

File Number(s): 2013/00178500
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-04-22 00:00:00

Before:

Magistrate Bradd

File Number(s):

2012/00365486

Judgment

HER HONOUR: By amended summons filed on 24 June 2013, the plaintiff seeks to appeal the decision made by Magistrate Bradd in the Downing Centre Local Court on 22 April 2013. His Honour resolved a dispute under s 13 of the Dividing Fences Act 1991 in favour of Ms Hecker and made orders for the erection of a fence and ancillary orders for the clearing of obstructions or encroachments along the boundary in the line of the fence. Ms He appeals those orders.

The plaintiff in this Court is Ji He who was the defendant in the Local Court proceedings. The defendant in this Court is Allyson Hecker who was the plaintiff in the Local Court. For convenience and to avoid confusion, I shall refer to the parties by name. At the hearing of this appeal both parties were self represented. Ms He was assisted by an interpreter.

The statutory provisions of the Act

It is convenient that I commence this judgment by providing a brief overview of the relevant provisions of the Dividing Fences Act 1991 (the Act). The definitions of adjoining owners, dividing fence and fencing work are contained in s 3 of the Act. These definitions are as follows:

"dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.

fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

...

(c) any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

fencing work means:

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along…

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 He v Hecker

Details

AGLC: He v Hecker [2013] NSWSC 1219
Case: [2013] NSWSC 1219
Decision Date: 03 September 2013

CaseChat Overview and Summary

The appellant, He, lodged an appeal against a Local Court decision that ordered him to divide a fence on his property and clear any encroachments. The respondents, Hecker, had previously applied to the Local Court for an order requiring the appellant to divide a fence on his property, clear any encroachments, and pay costs. The appellant argued that there was an error of law in the Local Court's decision and that the proceedings were not fair. The respondents maintained that the appellant had encroached on their property and that the Local Court's orders were correct.

The court considered whether there was an error of law in the Local Court's decision and whether the appellant was afforded procedural fairness. The court found that there was no error of law in the Local Court's decision, and that the appellant was afforded procedural fairness. The court noted that the evidence demonstrated that the appellant had encroached on the respondents' property and that the Local Court's orders were appropriate.

The appeal was dismissed, and the Local Court's orders were affirmed. The court held that the appellant's arguments were without merit and that the Local Court's decision was correct. The court found that the appellant had encroached on the respondents' property and that the Local Court's orders were necessary to resolve the dispute. The appellant was ordered to divide the fence on his property, clear any encroachments, and pay costs.

Orders