Moore v Lawrie - [2025] NSWDC 97

District Court

New South Wales

Medium Neutral Citation: Moore v Lawrie [2025] NSWDC 97
Hearing dates: 13 March 2025
Date of orders: 13 March 2025
Decision date: 13 March 2025
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
Orders at para [24]; Appeal allowed in part

Catchwords:
APPEALS – Appeal from Local Court decision under Dividing Fences Act – Appeal to criminal jurisdiction of District Court
DIVIDING FENCES ACT – Proper construction of s 4 “sufficient dividing fence” in light of defined term “fence” in s 3
COSTS – Interrelationship between ss 7(1) and 14(c) of the Dividing Fences Act as to orders as to cost of building a fence

Legislation Cited:
Dividing Fences Act 1991 (NSW) s 3, s 4, s 7, s 13, s 14
Crimes Appeal and Review Act 2001 (NSW) s 18, Pt 3
Local Court Act 2007 (NSW) s 70, Pt 4

Cases Cited:
Huang v Nazaran [2021] NSWCA 243; 106 NSWLR 219
Styles v Rowley [2023] NSWSC 1053

Category: Principal judgment
Parties:
Michael Moore (Appellant 1)
Jeffrey Lees (Appellant 2)
Carmen Lawrie (Respondent 1)
Dale Thompson (Respondent 2)
Representation:
Counsel:
B Haines ( Appellants)
D Yakenian (Solicitor) (Respondents)
Solicitors:
McAuley Lawyers ( Appellants)
Juris League Consultancy (Respondents)

File Number(s): 2023/346694
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Special Jurisdiction

Date of Decision:

09 February 2024

Before:

Khoo LCJ

File Number(s):

2023/346694

JUDGMENT; ex-tempore

This is an appeal from a decision of the Local Court sitting in its special jurisdiction arising out of an application under the Dividing Fences Act 1991 (NSW) (“the Act”).
The parties are neighbours. The Appellants live at Number 4 and the Respondents at Number 6. The Respondents have recently demolished their house to build a new one, which has only recently been completed, although it seems that the landscaping and other leveling work is not yet either started or completed.
The reason the matter came to Court is because the parties do not like each other at all. They do not get on in the way that ordinarily society expects neighbours to coexist. Indeed, I have evidence before me of significantly serious conduct by the Respondents, including evidence of assaults and there are applications for Apprehended Violence Orders and the like floating around. No doubt these allegations are contested, and I do not need to decide whose fault the situation is. Suffice to say, they do not like each other.
The matter has an unfortunate procedural history. It commenced in the NSW Civil and Administrative Tribunal (“NCAT”) where it seems it almost settled by way of an agreement, substantially in the terms of the orders the Appellant presses for, which agreement was resiled from by the Respondent and abandoned by the Appellant. The matter was then transferred to the Local Court and determined by Magistrate Khoo of that Court on 8 February 2024.
Essentially, what the Appellants sought were orders for a new Colourbond fence to be erected between the…

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 Moore v Lawrie

Details

AGLC: Moore v Lawrie [2025] NSWDC 97
Case: [2025] NSWDC 97
Decision Date: 13 March 2025

CaseChat Overview and Summary

The appeal in Moore v Lawrie was heard by the District Court of New South Wales, where the appellant, Moore, contested a decision made by the Local Court under the Dividing Fences Act. Moore sought to challenge the Local Court's ruling that a hedgerow did not constitute a "sufficient dividing fence" as required by the Act, a dispute which arose from a boundary disagreement with his neighbour, Lawrie. The matter concerned whether the existing hedgerow met the statutory requirements and if Lawrie was liable for the cost of erecting a new fence under section 7(1) of the Act. The Local Court had found that the hedgerow did not meet the statutory definition of a "sufficient dividing fence" and ordered Lawrie to bear the costs of building a new fence.

The court was required to interpret the statutory language in the Dividing Fences Act, particularly the definitions of "fence" and "sufficient dividing fence" as outlined in sections 3 and 4 respectively. The appellant contended that the hedgerow fulfilled the statutory requirements and argued that the Local Court had erred in its interpretation of the Act. Furthermore, the court had to determine the interplay between sections 7(1) and 14(c) of the Act regarding the allocation of costs for building a fence. The primary focus was on whether the hedgerow was a valid "sufficient dividing fence" and whether Lawrie was indeed liable for the cost of constructing a new fence.

The District Court found that the hedgerow did not meet the statutory definition of a "sufficient dividing fence" as set out in the Act. The court emphasised that a "fence" must be a solid barrier and that a hedgerow, while potentially providing some level of separation, did not satisfy the statutory requirement for a "sufficient dividing fence". The court noted that the hedgerow was not a solid barrier and lacked the necessary characteristics to be considered a fence under the Act. Consequently, the court upheld the Local Court's decision that Lawrie was liable for the cost of building a new fence. However, the court allowed the appeal in part by finding that the hedgerow did not constitute a "sufficient dividing fence" and that Lawrie was responsible for the costs of erecting a new fence as per section 7(1) of the Act.

The final orders included a ruling that the hedgerow did not meet the statutory requirements of a "sufficient dividing fence" and that Lawrie was liable for the costs of building a new fence. The District Court allowed the appeal in part, affirming the Local Court's decision on the liability for costs but correcting the interpretation of the statutory definition of a "sufficient dividing fence". The court's detailed analysis clarified the statutory language and provided guidance on the application of the Dividing Fences Act in similar future disputes.

Orders

Orders of the court

Orders at para [24]; Appeal allowed in part

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:	Moore v Lawrie [2025] NSWDC 97
Hearing dates:	13 March 2025
Date of orders:	13 March 2025
Decision date:	13 March 2025
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	Orders at para [24]; Appeal allowed in part
Catchwords:	APPEALS – Appeal from Local Court decision under Dividing Fences Act – Appeal to criminal jurisdiction of District Court DIVIDING FENCES ACT – Proper construction of s 4 “sufficient dividing fence” in light of defined term “fence” in s 3 COSTS – Interrelationship between ss 7(1) and 14(c) of the Dividing Fences Act as to orders as to cost of building a fence
Legislation Cited:	Dividing Fences Act 1991 (NSW) s 3, s 4, s 7, s 13, s 14 Crimes Appeal and Review Act 2001 (NSW) s 18, Pt 3 Local Court Act 2007 (NSW) s 70, Pt 4
Cases Cited:	Huang v Nazaran [2021] NSWCA 243; 106 NSWLR 219 Styles v Rowley [2023] NSWSC 1053
Category:	Principal judgment
Parties:	Michael Moore (Appellant 1) Jeffrey Lees (Appellant 2) Carmen Lawrie (Respondent 1) Dale Thompson (Respondent 2)
Representation:	Counsel: B Haines ( Appellants) D Yakenian (Solicitor) (Respondents) Solicitors: McAuley Lawyers ( Appellants) Juris League Consultancy (Respondents)
File Number(s):	2023/346694
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Special Jurisdiction Date of Decision: 09 February 2024 Before: Khoo LCJ File Number(s): 2023/346694