JDW Services Pty Ltd as Trustee for JDW Superannuation Fund v O'Dea

JDW Services Pty Ltd as Trustee for JDW Superannuation Fund brought this application against O'Dea, seeking an order for the construction of a dividing fence between their respective properties. The case was heard in the Supreme Court of New South Wales. The applicant claimed that the existing dividing fence between their property (Lot 11 of DP 752399) and the respondent's property (Lot 57 of DP 1111618) was inadequate due to bushfire damage. The applicant sought an order requiring the respondent to contribute to the cost of constructing a new fence, as well as other relief.

The central legal issue before the court was whether the existing dividing fence between the parties' properties was sufficient, and if not, what type of replacement fence should be constructed, its dimensions, its location, and the respondent's contribution to the cost of the fencing work. The applicant argued that the existing fence was inadequate due to bushfire damage and sought an order for the construction of a four-strand barbed wire fence with steel posts and gates. The respondent argued that the existing fence was sufficient and that the applicant's proposed replacement fence was not necessary or desirable.

The court found that the existing dividing fence was inadequate and ordered the construction of a four-strand barbed wire fence with steel posts and gates along the existing fencing line between the parties' properties. The court also ordered that the respondent contribute to the cost of the fencing work by paying the applicant 50% of the total cost, up to a maximum of $23,550.19. The court considered the need for a sufficient dividing fence, the bushfire damage to the existing fence, the type and dimensions of the replacement fence proposed by the applicant, and the respondent's ability to contribute to the cost of the fencing work. The court determined that the proposed replacement fence was necessary and reasonable, and that the respondent's contribution to the cost was fair and equitable.

The court ordered that the applicant cause the performance of fencing work between the parties' properties, including the demolition and removal of any remaining components of the previous bushfire damaged fence, the removal of plants, trees, roots, rocks and shrubbery along the existing fencing line, and the construction of a four-strand barbed wire fence with steel posts and gates. The court also ordered that the respondent contribute to the cost of the fencing work by paying the applicant 50% of the total cost, up to a maximum of $23,550.19. The court further ordered that the applicant send a copy of all tax invoices that pertain to the fencing work to the respondent within 21 days of completion of the fencing work, and that the respondent pay the applicant within 28 days of receiving the tax invoices.