Mackenzie v Norton St. Project Pty Ltd

[2025] NSWCATCD 25

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Mackenzie v Norton St. Project Pty Ltd [2025] NSWCATCD 25

Hearing dates:

26 November 2024

Date of orders:

24 April 2025

Decision date:

24 April 2025

Jurisdiction:

Consumer and Commercial Division

Before:

B Koch, General Member

Decision:

1.    The applicant is to cause the performance of the following fencing work between [xxxx], Leichhardt NSW and [xxxx], Leichhardt NSW within 60 days of the date of these orders:

(a)   demolition and removal of the existing fence between the properties in a manner appropriate having regard to the presence of asbestos in the existing fence; and

(b)   construction of a 1.8m high lapped and capped timber paling fence along the existing fence line, save that the fence is to be constructed around the existing Celtis tree on the existing fence line. To the extent the existing fence line is unclear at the time of construction, the fence is to be located on the boundary between the properties disclosed by the topographical survey adduced in evidence by the applicant.

2.    The fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant.

3.    The fencing work is to be paid for by the applicant and the respondent is to contribute to the cost of the fencing work by way of making a payment to the applicant as set out in these orders.

4.    Within 21 days of completion of the fencing work, the applicant is to send to the respondent in writing a copy of all tax invoices that pertain to the fencing work the subject of these orders.

5.    Within 7 days of being provided with the documents the subject of order 4 above, the respondent is to pay the applicant the 50% of the cost of the fencing work up to a maximum of $3,327.50. If the total cost of the fencing work is less than $6,655, the respondent is to pay the applicant 50%. If the total cost of the fencing work exceeds $6,655, the respondent is to pay the applicant $3,327.50.

Catchwords:

DIVIDING FENCES — Whether sufficient dividing fence — Type of replacement fence — Location of replacement fence — Contribution to cost of fencing work

Legislation Cited:

Dividing Fences Act 1991 (NSW)

Cases Cited:

JDW Services Pty Ltd as Trustee for the JDW Superannuation Fund v O’Dea [2022] NSWCATCD 29

Nicholls v Fortmann [2020] NSWCATAP 52

Purcell v Chadwick [2018] NSWCATAP 250

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Katrina Mackenzie (Applicant)

Norton St. Project Pty Ltd (Respondent)

Representation:

Ms Mackenzie in person (Applicant)

Mr Tannous, director (Respondent)

File Number(s):

2024/00293240

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant and the respondent are adjoining owners of land in Leichhardt, New South Wales. The applicant seeks orders under the Dividing Fences Act 1991 (Act) in respect of part of the boundary between the parties’ properties.

2. Both parties participated in the hearing of the application on 26 November 2024. The Tribunal has had regard to the detailed documentary evidence provided by the parties and to the oral evidence of the applicant and of the director of the respondent (each given subject to an affirmation).

3. There was no dispute by the parties that this is a claim which the Tribunal has jurisdiction to hear and determine. In particular, the Tribunal was satisfied that a fencing notice was served, and that the application was lodged at least a month after the notice was served.

4. The Tribunal will set out the relevant legislative provisions, the cases advanced by each of the parties and the Tribunal’s determination of the issues arising.

Relevant Legislation

5. The phrase “fencing work” is defined in s 3 of the Act as follows:

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 or on either side of the common boundary of adjoining lands for such a purpose,

...

6. Section 4 of the Act provides, relevantly:

4   Determination as to “sufficient dividing fence”

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a)  the existing dividing fence (if any),

(b)  the purposes for which the adjoining lands are used or intended to be used,

(c)  the privacy or other concerns of the adjoining land owners,

(d)  the kind of dividing fence usual in the locality,

(e)  any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f)  any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

…

7. Section 6 of the Act provides:

6 General principle—liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) This section applies whether or not a dividing fence already separates the adjoining lands.

8. Section 7 of the Act is in the following terms:

7   Contribution as between adjoining owners—generally

(1)  Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2)  An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.

(3)  An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.

9. The Tribunal’s jurisdiction to make orders in relation to fencing work is set out in s 14(1) of the Act:

14   Orders as to fencing work

(1)  The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:

(a)  the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b)  the fencing work to be carried out (including the kind of dividing fence involved),

(c)  the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d)  which portion of the dividing fence is to be constructed or repaired by either owner,

(e)  the time within which the fencing work is to be carried out,

(f)  the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g)  that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

Applicant’s Case

10. The applicant seeks the replacement of the existing fence between her land and the respondent’s land with a 1.8m high lapped and capped paling fence.

11. She submits the existing asbestos fence is not sufficient on the basis that it is in a poor condition. In particular:

1. The existing fence has large holes in it, is flaking and has fallen down in some places;

2. the existing frame and timber struts are rotten and all nails are rusted;

3. the holes in the fence reduced security in the rear yards of both properties; and

4. the existing fence provides no privacy, either to tenants of the respondent’s land or to the applicant, an issue that has being exacerbated by the deteriorating condition of the existing fence.

12. The applicant has agitated the proposed replacement of the existing fence since at least August 2023. On or about 26 June 2024, the applicant served a fencing notice pursuant to s 11 of the Act on the respondent. The applicant commenced the prison application on 9 August 2024, being more than one month after service of the fencing notice.

13. The applicant has provided the following quotes in respect of the work she submits is necessary to replace the existing fence with a sufficient dividing fence:

1. a quote from J Group Industries for Removal and disposal of the existing asbestos fence panels for the sum of $3,905.00; and

2. a quote from Fencing Quotes Online for the supply and installation of a timber paling fence with capping at a height of 1.8 metres with a total length of 20 metres for the sum of $2,750.00.

Respondent’s Case

14. The respondent puts in issue the question of whether the existing fence constitutes a sufficient dividing fence for the purposes of the Act.

15. The respondent alleges that:

1. the fence “appears to be in tack (sic) and currently undisturbed”; and

2. although the fence is constructed of asbestos, “the respondent believes that the fence is currently understood in its natural state and … poses little to no risk to the applicant and respondent”.

16. The respondent’s submission is that the applicant “appears to be running a scare campaign to force the removal of the fence”. The Tribunal pauses here to note that the above submission is indicative of the wholesale breakdown in the relationship between the parties. That breakdown was further evidenced by allegations and counter-allegations made by each of the parties against the other during the hearing. Save for one matter discussed below, that breakdown and those allegations are not directly relevant to the issues which the Tribunal must determine and the Tribunal will not address them.

17. In the alternative, should the Tribunal find that there is no sufficient dividing fence, the respondent relies upon a quote from Blue Chip Projects Australia Pty Ltd (Blue Chip) for the removal of the existing asbestos fence, a survey of the boundary between the applicant’s land and the respondent’s land and the supply and installation of a new treated pine, 1.8m high timber paling fence. The quoted costs of those works are $6,100.00 for removal of the existing fence and supply and installation of the new fence and $1,450.00 for the survey.

18. The respondent submits that the survey is required “to ensure the fence is installed on the legal boundary”.

Determination

19. The evidence and submissions of the parties reveal two broad issues requiring determination. First, whether there is a sufficient dividing fence. Second, if there is no sufficient dividing fence, whether the Tribunal should exercise its discretion to order fencing work and the nature of the fencing work that would be the subject of orders, including but not limited to the identity of the party to carry out that fencing work, the nature of the work and the contribution of the parties to the cost of that work.

Sufficient Dividing Fence

20. The Tribunal is satisfied, on the balance of probabilities, that there is not presently a sufficient dividing fence between the applicant’s land and the respondent’s land.

21. Whether or not there is currently an existing dividing fence which is sufficient is, or is not, sufficient, is a matter of degree involving consideration of all relevant circumstances, including the circumstances set out in s 4 of the Act: see Purcell v Chadwick [2018] NSWCATAP 250 at [28]. What weight, if any, is given to the matters set out in s 4 (a)-(g) of the Act (and any other relevant circumstances) is a matter for the Tribunal to determine based on the evidence in the case: see Nicholls v Fortmann [2020] NSWCATAP 52 at [33].

22. The photographs which are at pages 18 – 29 of the applicant’s bundle of material make it plain that the existing fence has deteriorated to such an extent that it cannot be classified as a sufficient dividing fence for the purposes of the Act.

23. In places there are what can only be described as gaping holes in the fence stretching along substantially the entire vertical length of the structure in a manner that plainly undermines the utility, security and privacy afforded by the fence. Many such sections appear to be in the process of falling down. Some parts appear to have fallen previously and have been reattached to the remnants of the existing fence in a haphazard fashion. The horizontal timber beam or strut that appears to be intended to support the fence along its top is degraded and rotten.

24. Even the photographs relied upon by the respondent to try and demonstrate that not all of the fence is in such a condition (see Annexure A of the respondent’s bundle) demonstrate the existence of the holes of which the applicant complains.

Fencing Work

25. Having found that the existing fence is not a sufficient dividing fence within the meaning of s 4 of the Act, the Tribunal has powers under s 14 of the Act to make orders as to fencing work.

26. Given the state of the existing fence, the Tribunal is well satisfied that it should exercise its discretion under s 14 to order fencing work to replace the existing fence.

27. There is no substantial difference between the submissions advanced by each party as to the nature of the fence that should be erected in place of the existing fence. The Tribunal accepts the uncontradicted evidence of the applicant that the fence that she proposes will be consistent with the type of fencing that is now common throughout the relevant locality. The Tribunal will order the erection of a 1.8m high lapped and capped timber paling fence.

28. The Tribunal notes that there is a Celtis tree along the existing fence line. That tree has cause a small part of the damage to the existing fence. The Tribunal understood the evidence and submissions of each party to be that there is presently no approval from Inner West Council for the removal of the tree (although that may be sought as a part of the development applications that each party seem to wish to pursue in respect of their property at some point in the future). As matters presently stand, the common position of the parties (with which the Tribunal agrees) appears to be that any new fence will need to go around the tree.

29. One other matter that caused dispute between the parties in respect of the nature of the work was the applicant’s proposal that the posts are to face the respondent’s land and the palings to face the applicant’s land. The applicant contended that such an order reflected the present state of the existing fence. The respondent considered that position “unfair and unreasonable” and submitted that “the facing should be shared by both properties, based on the availability to access and install the palings”. What was meant by the “sharing” of the facing was unclear. However, B points made regarding access in terms of installation of the fencing seems to the Tribunal to be well made. The Tribunal was not favoured with evidence as to whether facing on one side or the other was more feasible and practical. The Tribunal is therefore not in a position to determine the issue and it must be left to the relevant contractor.

30. That leaves for determination the following issues:

1. Should the Tribunal order a survey to determine the boundary between the applicant’s land and the respondent’s land as submitted by the respondent?

2. Who should undertake the fencing work?

3. What contributions should each party make to the fencing work?

Survey

31. Section 18 of the Act provides a procedure for defining the boundary line, of which the parties have not availed themselves.

32. It is open to the Tribunal to make an order determining the boundary or line on which the fencing work is to be carried out. The Tribunal is not satisfied on the balance of probabilities that there is sufficient doubt about the boundary line between the applicant’s land and the respondent’s land that a survey is necessary. First, the respondent pointed to no matter that suggested real confusion on that issue. Second, the applicant adduced evidence of a topographical survey of the applicant’s land, including the boundary with the respondent’s land (see p. 104 of the applicant’s bundle). Although the respondent submitted that survey was insufficient, the Tribunal was not, with respect, able to comprehend the reasons for this asserted insufficiency. No order will be made in respect of a survey.

Contractor

33. The identity of the contractor to undertake the fencing work was a hotly contested topic at the hearing.

34. Part of the cause of that heat appears to be that Blue Chip is an entity associated with the respondent. Indeed, it appears that Mr Tannous is a director of both companies (see p. 46 of the applicant’s bundle). Mr Tannous submitted that the quote provided by Blue Chip was competitive and in this time of pressure caused by rising cost of living, any potential saving should be sought. The Tribunal can understand and sympathise with that submission. However, the obvious antipathy between the parties demonstrated both in writing and, even more sharply, during the course of the hearing, makes it plain that it would be unwise for the works to be undertaken by (in substance if not as a matter of strict legality) one of the parties.

35. It is the applicant who has pressed, over a lengthy period, to have the fencing work undertaken and the respondent which has, at all times up to and including the hearing, resisted the undertaking of the work. The appropriate order is for the fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant.

Contributions

36. The relevant principles were set out in JDW Services Pty Ltd as Trustee for the JDW Superannuation Fund v O’Dea [2022] NSWCATCD 29 at [35]-[36]:

In the context of ss 6 and 7 of the DF Act, the starting point is that the parties are to contribute equally to the cost of constructing a sufficient dividing fence unless the fencing work involves construction of a fence of a standard “greater” than the standards of a sufficient dividing fence. To the extent that the applicant seeks to construct a fence of a “greater” standard than the standard of a sufficient dividing fence, the applicant bears the additional cost.

Taking into account ss 6 and 7 of the DF Act, there is no general discretion reduce or eliminate contribution to the cost of constructing a fence where there is no existing sufficient dividing fence on the basis of matters such as the benefit that the fence will give the respective neighbours in regard to the use of their land; the ability of the respective neighbours to pay for the proposed fence; or that the fence may give rise to other circumstances that may cause restrictions to one neighbour’s use of their land.

37. The respondent complained about the age of the applicant’s quotes at the time of the hearing. That is a valid issue. The Tribunal did not understand any other complaint about those quotes to be made by the respondent (save for the alleged competitiveness of the quote from Blue Chip).

38. The applicant sought to meet the complaint by the respondent by agreeing to a contribution of no more than half of the existing quotes. That is, the applicant would bear the risk of any increase in costs since the time of the quotes. That is a wholly reasonable position and the Tribunal will make an order in those terms.

Conclusion

39. For the above reasons, the Tribunal will make orders 1 – 5 set out above.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 May 2025