Nasr v Kassiri

[2020] NSWCATCD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Nasr v Kassiri [2020] NSWCATCD 12

Hearing dates:

13 January 2020

Date of orders:

29 January 2020

Decision date:

29 January 2020

Jurisdiction:

Consumer and Commercial Division

Before:

S Sutherland, General Member

Decision:

The claim is dismissed.

Catchwords:

DIVIDING FENCE — Sufficient Dividing Fence —Fencing Notice

Legislation Cited:

Dividing Fences Act 1991 (NSW)

Cases Cited:

Jiang v Cousins [2019] NSWCATAP

Purcell v Chadwick (2018) NSWCATAP 250

Ahern v Havler (ownership to 7) NZ LR 245

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Christian Nasr (First Applicant)
Fadi Nasr (Second Applicant)
Shari Kassiri (Respondent)

Representation:

First Applicant (Self-represented)
Respondent (Self-represented)

File Number(s):

COM 19/43982

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant brings a claim pursuant to the Dividing Fences Act, 1991 for fencing work to be carried out on the boundary line of the adjoining properties. The applicant‘s claim includes the erection of a new fence and a retaining wall that is to hold and support the fence. The parties are adjoining owners.

Background

2. About three years ago the parties agreed that a paling fence was to be erected on the boundary of the adjoining owners and the cost of the paling fence was to be equally divided between the parties. At the time the respondent was building a dwelling, and there was a need for a dividing fence between the properties. The fence was erected and the parties paid their proportion of the fence.

3. There is a dispute between the parties as to who engaged the fencer. In the email of Jacob Ni, Director of Nicon Building Pty Ltd (undated) he states that the applicant, Mr Nasr engaged the fencer and the respondent paid half the cost. The fencer erected the paling fence about three years ago and from my examination of the photographs the fence is in good order apart from some minor damage which the applicant takes responsibility. The fence appears to have been sufficient until a survey from C & A Surveyors dated 26 March, 2019 showed that the dividing fence was partially not erected on the boundary line. The parties agree that the fence is not wholly on the boundary. The survey shows that at points the fence is about 1 metre from the boundary.

4. The issue for determination is whether there is sufficient fencing if the fence is not on the boundary line?

Jurisdiction

5. Section 13 of the Dividing Fences Act 1991 (“DFA”) confers jurisdiction on the Tribunal to hear and determine any matter arising under the Dividing Fences Act. This is a claim brought pursuant to the Dividing Fences Act and the Tribunal has jurisdiction to hear the claim.

General Principles of the Dividing Fences Act, 1991

The general principles of the Dividing Fences Act are set out in Section 6, which states:

(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.

Fencing Notice

6. The Tribunal finds that in accordance with Section 11 of the DFA on 2 July, 2019 the applicant served a fencing notice pursuant on the respondent.

7. The parties could not reach an agreement within 1 month after service of the fencing notice and the applicant registered the fencing claim on 27 September, 2019.

Evidence of the Applicant

8. There is a current paling fence that was erected 3 years ago. The fence does not align with the boundary for the survey of C & A Surveyors dated 27 September, 2015. A further survey from C & A Surveyors was obtained on 26 March, 2019 which provides that the paling fence is not erected on the boundary. The fence encroaches on the applicant’s land by about 1 metre from the commencement of the dwelling to the rear fence: C & A Surveyors Survey Plan dated 26 March, 2019. The applicant states that the current paling fence cannot be moved and re-aligned with the boundary and a new fence is required. The applicant provides two surveys in his documents marked Exhibit A1. The first is a survey from C & A Surveyors dated 23 September, 2015. The second survey from C & A Surveyors is dated 26 March, 2019 and it shows the existing paling fence which is dotted between Lot 1 and Lot 2 and the boundary which is the black line between Lot 1 and Lot 2.

9. The applicant also states that in order for the dividing fence to be erected on the boundary that a retaining wall will need to be erected to hold and support the boundary fence.

10. The applicant in his documents provides three quotes for the fence. The quotes of Steve Hood Fencing Pty Limited dated 27 June, 2019 and Fix It Fencing dated 20 August, 2019 do not provide a quote for the retaining wall. It is only the quote from All Building Services Pty Ltd dated 3 September, 2019 that provides a quote on the retaining wall. The quote provides $8,000 for the erection of a retaining wall.

Evidence of the Respondent

11. The respondent agrees that the fence is in parts not on the boundary, however, he states that there is an element of “give and take”. The retaining wall he told the Tribunal was required because the applicant was building his dwelling near the boundary line. The respondent also states that after the erection of the current fence, he installed a gate and two garden beds which are against the current fence. He believes that the fencing is sufficient.

Relevant legislation

Section 3 of the DVA provides:

“fence” means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

(a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and

(b) any natural or artificial watercourse which separates the land of adjoining owners, and

(c) any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building

Consideration

12. In Jiang v Cousins [2019] NSWCATAP in order to determine whether there is “sufficient fence” the Tribunal is to consider “all the circumstances of the case” including the matters (a) to (g) of Section 4 of the DFA. The Appeal Panel went on to say that when the location of a dividing fence is considered, it is desirable that the fence be on the common boundary: Ahern v Havler (ownership to 7) NZ LR 245 per Tompkins J at 246. However, to place the dividing fence on the surveyed boundary line may be impractical, as is specifically recognised by the provisions of s.11(2)(a) of the Act.

13. In Purcell v Chadwick (2018) NSWCATAP 250 the Appeal Panel at [36] said:

… Whether a particular encroachment is such as to render the fence insufficient, within the meaning of the Act, requires a consideration of the nature and extent of any encroachment. In this regard, it seems to us that some deviations from the boundary lines are permissible and would not justify a conclusion that any existing fence, in a good state of repair, was otherwise insufficient. For example, it is self-evident that minor deviations in the boundary line or deviations in the boundary line due to varying widths of fencing materials would not usually render a fence insufficient”.

14. The submission by the applicant is that a new fence should be erected as the fence is not on the boundary line. The Tribunal needs to consider all the circumstances and minor encroachments do not necessarily mean that there is not a sufficient fence. I have considered Jiang v Cousins and Purcell v Chadwick, and the nature and the extent of the encroachment. In my view, there are minor deviations in the fencing line and these are towards the rear of the property. There has been no dispute about the boundary for the past three years. The respondent has installed a gate and garden beds based on there being no dispute concerning the location of the fence. The fence is otherwise in good repair apart from some minor damage caused by the applicant. For the above reasons, I am not satisfied to the civil standard that the fence is insufficient, being in parts not on the boundary line and that there are minor encroachments.

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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: 17 March 2022