Muggeridge v Hackney - [2016] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Muggeridge v Hackney [2016] NSWCATCD 65
Hearing dates: 16 March 2016, 14 June 2016
Decision date: 01 July 2016
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
1. For the reasons provided, Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge are responsible for making the necessary arrangements for the fencing work as referred to and described in paragraph 52 of the Reasons for Decision to be carried out within 3 months of the date of these orders.

2. Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge of the one part and Ljulja Hackney and Ian Gordon Hackney of the other part must pay for the costs of the fencing work in equal proportions, including fees on the Application for Development Consent.
3. The parties have liberty to apply for an extension of time if the period of 3 months is inadequate to allow the fencing work to be carried out.
Catchwords: Sufficient dividing fence, orders for fencing work
Legislation Cited: Civil and Administrative Tribunal Act 2013
Dividing Fences Act 1991
Category: Principal judgment
Parties: Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge (Applicants)
Ljulja Hackney and Ian Gordon Hackney (Respondents)
Representation: The parties were self-represented

File Number(s): COM 15/68391
Publication restriction: Unrestricted

Reasons for Decision

In this application the applicants seek an order for an adjoining owner to agree to pay for the costs involved in repairing an existing damaged dividing fence.
The parties reside in Gateacre Avenue Lane Cove. The applicants’ property is lot 45 on DP 4842. The respondents’ property is at lot 46 DP 4842. I find that the applicants and the respondents are adjoining owners. So much is common ground between the parties.
On 16 March 2016 after reviewing and considering the evidence filed and served by the parties, I made the following orders:

‘2. The parties must obtain each obtain at least 1 written quote from a contractor duly licensed under the Home Building Act 1989 to carry out the recommended repairs referred to in the Woolacotts Consulting Engineers report dated 25 February 2016 such repairs to be carried out in accordance with the Building Code of Australia and the warranties contained in section 18B of the Home Building Act 1989 and provide such quotes to each other and the Tribunal no later than 22 April 2015.
3.   The parties must obtain each obtain at least 1 written quote from a contractor to remove tree stumps from either side of the dividing fence the subject of these proceedings and further to remove all trees and vegetation growing on and through the dividing fence and provide such quotes to each other and the Tribunal no later than 22 April 2015.
4.   The affidavit of Matthew Muggeridge sworn 4 March 2016 is exhibit B in the proceedings in connection with the need to obtain Development Consent for repairs to the dividing fence the subject of these proceedings.
4.   The respondents have until 29 March…

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.

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Details

Case: [2016] NSWCATCD 65
Decision Date: 01 July 2016

CaseChat Overview and Summary

Muggeridge v Hackney is a case in which the parties, Therese Christine Muggeridge-Nguyen, Matthew Muggeridge, and Sonya Muggeridge, took action against their neighbours, Ljulja Hackney and Ian Gordon Hackney, for the lack of a sufficient dividing fence. The dispute was adjudicated in the Local Court of New South Wales, where the plaintiffs sought an order for the construction of a fence and other related relief.

The legal issues central to the case revolved around the adequacy of the existing fence between the properties, the obligations of the property owners under local council regulations regarding fences, and the financial responsibilities associated with any necessary fencing work. The court had to determine whether the existing fence met the requirements set forth in the local council's regulations and, if not, who would bear the costs of rectifying this issue.

In its decision, the court found that the existing fence did not meet the necessary standards as per the local council's regulations. The court also held that the plaintiffs were responsible for arranging the required fencing work within a specified timeframe. Moreover, the court ruled that the cost of the fencing work, including any fees related to the application for development consent, should be shared equally between the parties. The court granted the parties the liberty to apply for an extension if the initial timeframe proved insufficient for completing the work.

Consequently, the court issued orders mandating the plaintiffs to arrange for the necessary fencing work to be completed within three months. It also stipulated that the costs of the work, including fees for the application for development consent, be borne equally by both parties. The court allowed for potential applications for an extension if the three-month period was deemed inadequate for the work to be completed.

Orders

Orders of the court

1. For the reasons provided, Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge are responsible for making the necessary arrangements for the fencing work as referred to and described in paragraph 52 of the Reasons for Decision to be carried out within 3 months of the date of these orders.

2. Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge of the one part and Ljulja Hackney and Ian Gordon Hackney of the other part must pay for the costs of the fencing work in equal proportions, including fees on the Application for Development Consent.

3. The parties have liberty to apply for an extension of time if the period of 3 months is inadequate to allow the fencing work to be carried out.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Muggeridge v Hackney [2016] NSWCATCD 65
Hearing dates:	16 March 2016, 14 June 2016
Decision date:	01 July 2016
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	1. For the reasons provided, Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge are responsible for making the necessary arrangements for the fencing work as referred to and described in paragraph 52 of the Reasons for Decision to be carried out within 3 months of the date of these orders. 2. Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge of the one part and Ljulja Hackney and Ian Gordon Hackney of the other part must pay for the costs of the fencing work in equal proportions, including fees on the Application for Development Consent. 3. The parties have liberty to apply for an extension of time if the period of 3 months is inadequate to allow the fencing work to be carried out.
Catchwords:	Sufficient dividing fence, orders for fencing work
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991
Category:	Principal judgment
Parties:	Therese Christine Muggeridge-Nguyen, Matthew Muggeridge and Sonya Muggeridge (Applicants) Ljulja Hackney and Ian Gordon Hackney (Respondents)
Representation:	The parties were self-represented
File Number(s):	COM 15/68391
Publication restriction:	Unrestricted