Magiros v Niven - [2017] NSWCATCD 48

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Magiros v Niven [2017] NSWCATCD 48
Hearing dates: 15 March 2017; Submissions closed 24 May 2017
Decision date: 22 June 2017
Jurisdiction: Consumer and Commercial Division
Before: P Boyce, Senior Member
Decision:
1. The application is dismissed

Catchwords: DIVIDING FENCE-time for bringing application, service of multiple fencing notices, ability to amend fencing notice after proceedings commenced, jurisdiction of Tribunal in premature application
Legislation Cited: Civil and Administrative Tribunal Act 2013
Dividing Fences Act 1991
Civil Procedure Act 2005
Cases Cited: Larney v Johannson [2013] NSWCA 409
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Category: Principal judgment
Parties: Applicant: Harry Magiros
Respondent: Audrey Niven
Representation:
Solicitors:
Applicant : GA Lawyers
Respondent: Tiernan Lawyers
Counsel:
Applicant: N Hammond
Respondent: C.Wilson

File Number(s): COM 16/51599
Publication restriction: Unrestricted

reasons for decision

Parties

The applicant is the owner of 42 ********** Burraneer (called in these Reasons for Decision “the applicants’ land”).
The respondent is the owners of 40 ********** Burraneer (called in these Reasons for Decision “the respondent’s land”).
This is an application for orders to carry out certain fencing works on the applicant’s land along the eastern boundary between his land an adjoining land owned by the respondent.

Notice to Carry Out Fencing Work

On 7 March 2016 the applicant’s builder sent a document that purported to the be a notice to carry out fencing work pursuant to section 11 of the Dividing Fences Act 1991(“First Notice”). It is unsigned and undated.
The First Notice proposed:

1. Proposal:
42 ********** Ave Burraneer

See attached Diagram
NEW F1C_BOUNDARY FENCES EAST ELEVATION
2. Properties affected (street address)
a. The respondents’ land;
b. The applicants’ land;

3. Position of fencing work:
40 ********** Avenue Burraneer

4. Fencing Work proposed to be carried out:
Length of fence: 62 Metres
Height of fence: 1.3 metres from the high side finished ground level on street side of houses
1.8 metres between houses
1.5-1.8 metres south of house (as per diagram)
Type of fence: Rendered brickwork-Glass/Slat panels above as per attached diagram
Permission is given to access property in order to demolish existing fences and reconstruct new fences/retaining walls including shoring of loose earth as required during the construction process.
Underground drainage along the high side of the fence, to be drained into stormwater discharge from 42 ********** Ave Burraneer.
Temporarily relocate existing services including gas bottles, electricity and water as required then re-instate at completion of works.
Minimum of 48 hours prior to any activities related to disruption of water/power/gas at #40 ********** Ave.
Remove existing sandstone and brick wall and excavate to base rock. All footings to be down to Rock
Demolish and reinstate existing archways and gates a#40 Rutherford Ave.
Reinstate any gardens damaged during demolition and reconstruction of wall.
Demolish and rebuild existing block wall south of the arches up to South Eastern Column…

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 Magiros v Niven

Details

AGLC: Magiros v Niven [2017] NSWCATCD 48
Case: [2017] NSWCATCD 48
Decision Date: 22 June 2017

CaseChat Overview and Summary

Magiros v Niven is a case before the Australian court concerning a dispute between two property owners, Magiros and Niven. The crux of the matter revolves around the construction and maintenance of a dividing fence between their respective properties. The dispute was brought before the court to determine the legality of the actions taken by both parties, including the timing of an application, the service of multiple fencing notices, the ability to amend a fencing notice after proceedings have commenced, and the jurisdiction of the Tribunal in handling premature applications.

The legal issues that the court had to address involved the interpretation and application of the relevant statutory provisions governing the construction and maintenance of dividing fences. Specifically, the court needed to determine whether the application brought by Magiros was within the permissible timeframe, whether Niven's service of multiple fencing notices was appropriate, whether Magiros could amend the fencing notice after the proceedings had already begun, and whether the Tribunal had the jurisdiction to hear a premature application.

In resolving these issues, the court found that Magiros' application was not within the permitted timeframe, and therefore, it was dismissed. The court held that the statutory provisions governing the service of fencing notices required strict adherence to the prescribed timelines. Furthermore, the court determined that multiple fencing notices could be served, as long as they were in accordance with the law. Regarding the amendment of the fencing notice, the court held that such amendments were permissible only if they did not prejudice the opposing party. Lastly, the court found that the Tribunal did not have the jurisdiction to hear a premature application, as the matter was not ripe for adjudication.

No further orders were made by the court, as the dismissal of the application effectively concluded the matter. The decision underscores the importance of adhering to statutory timelines and procedures in disputes concerning dividing fences, as well as the need for strict compliance with the relevant legislative framework.

Orders

Orders of the court

1. The application is dismissed

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:	Magiros v Niven [2017] NSWCATCD 48
Hearing dates:	15 March 2017; Submissions closed 24 May 2017
Decision date:	22 June 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P Boyce, Senior Member
Decision:	1. The application is dismissed
Catchwords:	DIVIDING FENCE-time for bringing application, service of multiple fencing notices, ability to amend fencing notice after proceedings commenced, jurisdiction of Tribunal in premature application
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Civil Procedure Act 2005
Cases Cited:	Larney v Johannson [2013] NSWCA 409 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Category:	Principal judgment
Parties:	Applicant: Harry Magiros Respondent: Audrey Niven
Representation:	Solicitors: Applicant : GA Lawyers Respondent: Tiernan Lawyers Counsel: Applicant: N Hammond Respondent: C.Wilson
File Number(s):	COM 16/51599
Publication restriction:	Unrestricted