McIntyre v Perkes Carpenter v Perkes

McIntyre v Perkes Carpenter v Perkes [1989] NSWCA 142 concerned a dispute between neighbours regarding a shared fence. The plaintiffs, McIntyre and Carpenter, sought to compel the defendants, Perkes, to contribute to the cost of repairing and replacing a dividing fence. The core of the dispute lay in the defendants' refusal to acknowledge their liability for the fence's upkeep and their objection to the proposed repairs.

The New South Wales Court of Appeal was required to determine whether the plaintiffs were entitled to an order compelling the defendants to contribute to the cost of the fence. Specifically, the court had to consider the application of the Fences Act 1973 (NSW) and whether the circumstances of the case justified an order for contribution, particularly in light of the defendants' objections to the proposed work.

The Court of Appeal found that the plaintiffs had established a prima facie case for contribution under the Fences Act. The Act provides a mechanism for adjoining owners to resolve disputes concerning the construction and repair of dividing fences. The court reasoned that the plaintiffs had followed the statutory procedures, including providing notice of their intention to carry out the work. The defendants' objections were found not to be sufficient grounds to avoid their statutory obligation to contribute, as the proposed work was reasonable and necessary for the maintenance of a common boundary fence. The court affirmed that the Act's purpose is to facilitate the resolution of such disputes and ensure that the burden of maintaining dividing fences is shared equitably between adjoining owners.

The Court of Appeal allowed the appeal, setting aside the prior order of the District Court and remitting the matter to the District Court for determination of the quantum of contribution payable by the defendants.