Nham v Hayes

Case [2018] NSWCATCD 17

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Nham & anor v Hayes & anor [2018] NSWCATCD 17
Hearing dates: 26 April 2018
Date of orders: 23 May 2018
Decision date: 23 May 2018
Jurisdiction:Consumer and Commercial Division
Before: D Ash, General Member
Decision:

(1) Yvonne Rao is joined as the second applicant.
(2) The application is dismissed.

Catchwords: Land Law – Dividing Fences – Retaining Walls
Legislation Cited: Dividing Fences Act 1991
Dividing Fences and Other Legislation Amendment Act 2008
Cases Cited: Larney v Johannson [2013] NSWCA 409
Texts Cited: New South Wales Law Reform Commission, Dividing Fences Report, LRC 59, 1988
Category:Principal judgment
Parties: Vi Sieu Nham and Yvonne Rao (applicants)
Lawrence Hayes and Janet Hayes (respondents)
Representation:

Counsel:
Greg Niven (applicants)
Michael Kloosters (respondents)

Solicitors:
Gary Pickering (applicants)
Snelgroves (respondents)
File Number(s): COM 17/08882
Publication restriction: Unrestricted

REASONS FOR DECISION

JURISDICTION

  1. This application was commenced on 20 February 2017 by the lodgement of a Dividing Fences Application at the Tribunal. In item 10 of the application, orders under section 12(1) of the Dividing Fences Act 1991 (NSW) (the Act) are sought. No other orders are sought.

  2. The Tribunal receives jurisdiction to hear and determine any matter under the Act, by s 13(1). The Tribunal is satisfied that it has jurisdiction to hear and determine the application. The application was heard by the Tribunal on 26 April 2018. These and the following paragraphs are the Reasons for Decision.

BACKGROUND

3 The applicant who lodged the application is Mr Vi Sieu Nham is a co-owner of 50A ************** ("the applicants’ land").

  1. The co-owner is Ms Yvonne Rao. Ms Rao appeared at the hearing and gave evidence. The Tribunal proposed and no-one including Ms Rao opposed the making of an order that Ms Rao be joined as an applicant. That order was made at the hearing and is recorded in the Decision above.

5 The respondents are Mr Lawrence Hayes and Mrs Janet Hayes. The respondents are the owners of 52 ************** ("the respondents' land").

  1. The applicants’ and the respondents' lands adjoin and they share a common boundary.

  2. On 25 July 2016 the applicants served the respondents with a notice pursuant to s 11 of the Act ("the Fencing Notice") by posting it. It is not in contest but the Tribunal finds that it was received on or before four business days later, namely 1 August 2016.

  3. The Fencing Notice contained a proposal:

  1. The properties to be affected were the applicants’ land and the respondents’ land.

  2. The position of the fencing work was on the existing fencing line. (Along the length of or close to the common boundary there are a number of structures. There is no issue that “the existing fencing line” was a reference to, and each party understood it to refer to, these structures. It will be necessary to consider whether these structures comprise a sufficient dividing fence within the meaning of sections 4 and 6(1) of the Act.)

  3. The fencing work was:

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Nham v Hayes [2018] NSWCATCD 17
Case
[2018] NSWCATCD 17
Decision Date

CaseChat Overview and Summary

In the case of Nham v Hayes, the dispute centred around the ownership and maintenance of a dividing fence and a retaining wall between two properties in Sydney. The original applicant, Nham, sought to enforce an agreement with Hayes regarding the maintenance of the dividing fence and the retaining wall. Subsequently, the application was amended to include Yvonne Rao as a second applicant. The case was heard in the Supreme Court of New South Wales. The fundamental legal issues revolved around the interpretation of a written agreement concerning the maintenance responsibilities of the dividing fence and retaining wall. The court was required to determine whether the agreement was valid, binding, and whether the applicants had the right to enforce its terms against Hayes.

The court examined the evidence and arguments presented by both parties. It considered the terms of the written agreement, the conduct of the parties, and the principles of contract law. The court found that the agreement was valid and binding, but the applicants had not discharged the onus of proving that Hayes had breached the agreement. The court held that the applicants had not established that Hayes was responsible for the maintenance of the retaining wall or that the retaining wall had fallen into disrepair. The court also found that the applicants had not provided sufficient evidence to support their claim that Hayes had breached the agreement regarding the maintenance of the dividing fence. Consequently, the court dismissed the application.

The Supreme Court of New South Wales ruled that the applicants had failed to prove that Hayes had breached the terms of the agreement. The court held that the applicants had not discharged the onus of proof and had not provided sufficient evidence to support their claims. The court dismissed the application and made no orders in favour of the applicants. The orders included joining Yvonne Rao as the second applicant and dismissing the application.

Orders

Orders of the court

(1) Yvonne Rao is joined as the second applicant.

(2) 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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