Rose v Graham and Wyn - [2015] NSWCATCD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Rose v Graham & Wyn [2015] NSWCATCD 92
Hearing dates: 14 July 2015
Decision date: 05 August 2015
Jurisdiction: Consumer and Commercial Division
Before: P Boyce, Senior Member
Decision:
1 The common boundary line between the adjoining lands is to be determined by a registered surveyor and pegged at the applicants’ sole expense.
2 16 metres of the existing dividing fence between the applicants’ and the respondents’ adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders;
3 A hardwood lapped paling fixed from the respondents side of the dividing fence 1.8 metres high 16 metre long is to be erected on hardwood rails and supported by galvanised steel posts core drilled (if necessary) and concreted into the ground to a depth of at least 60cm on the common boundary line between the applicant’s and the respondents’ adjoining lands;
4 The height of the fence is to be measured from the ground level (existing) of the respondent’s land;
5 If it holds a current contractors license to carry out fencing work, Jacks Timber & Fencing Wholesalers is to carry out the fencing work in accordance with its quote numbered 31919.
6 If Jacks Timber & Fencing Wholesalers is not established by the applicants to be licensed to carry out fencing work within 2 weeks of the date of these orders, then:
Both the applicants and the respondents are to obtain a quote for the fencing work specified in these orders within 4 weeks of the date of these orders.
The applicants and the respondents are to agree on the quote to be accepted. If the applicants and the respondents cannot agree on the quote to be accepted within 6 weeks from the date of these orders, then the quotes are to be referred to the Tribunal so that the Tribunal will choose which contractor is to carry out the fencing work.
In making its decision the Tribunal will not accept any further submission from the parties as to the suitability of the quote.
The quote to be accepted by order of the Tribunal may not necessarily be the lowest or least costly quote;
Acceptance of the quote by the Tribunal will be determined on the basis of compliance with the scope of works as set out in these orders and the license status of the fencing contractor submitting the quote; and,
In the absence of either party submitting a quote within 6 weeks of the date of these orders, then the only quote submitted may be accepted by the Tribunal if it otherwise complies with these orders.
7 The applicants must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.

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: [2015] NSWCATCD 92
Decision Date: 05 August 2015

CaseChat Overview and Summary

In Rose v Graham and Wyn, the applicants sought to establish a proper boundary line and erect a dividing fence on their land, which was adjacent to the respondents’ land. The dispute arose from the lack of a clearly defined boundary line and a fence that did not meet the required standards. The applicants argued that the existing fence was insufficient and not in accordance with local council requirements, while the respondents contested the necessity for a new fence and raised concerns about the proposed height and materials.

The legal issues before the court involved determining the precise location of the common boundary line between the adjoining lands, establishing whether the existing fence met the necessary standards, and deciding on the appropriate materials and height for a new dividing fence. Additionally, the court had to consider the contractual obligations between the parties, including the method of payment and the selection of a contractor for the fencing work.

The court ruled that the common boundary line must be determined by a registered surveyor and pegged at the applicants' expense. The existing fence was to be demolished and replaced with a new one, meeting specific height and material requirements. The court also ordered that the applicants were to bear the full cost of the fencing work and give instructions to the contractor. In terms of contractor selection, the court mandated that if the applicants' preferred contractor, Jacks Timber & Fencing Wholesalers, was licensed, they were to carry out the work. If not, the parties were to obtain quotes and agree on a contractor, with the Tribunal making the final decision if necessary. The respondents were to contribute to the cost of the fencing work based on the chosen contractor.

The final orders included the determination of the boundary line, the demolition and reconstruction of the fence, specifications for the new fence, cost-sharing provisions, and the process for selecting and paying the fencing contractor.

Orders

Orders of the court

1 The common boundary line between the adjoining lands is to be determined by a registered surveyor and pegged at the applicants’ sole expense.

2 16 metres of the existing dividing fence between the applicants’ and the respondents’ adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders;

3 A hardwood lapped paling fixed from the respondents side of the dividing fence 1.8 metres high 16 metre long is to be erected on hardwood rails and supported by galvanised steel posts core drilled (if necessary) and concreted into the ground to a depth of at least 60cm on the common boundary line between the applicant’s and the respondents’ adjoining lands;

4 The height of the fence is to be measured from the ground level (existing) of the respondent’s land;

5 If it holds a current contractors license to carry out fencing work, Jacks Timber & Fencing Wholesalers is to carry out the fencing work in accordance with its quote numbered 31919.

6 If Jacks Timber & Fencing Wholesalers is not established by the applicants to be licensed to carry out fencing work within 2 weeks of the date of these orders, then:

Both the applicants and the respondents are to obtain a quote for the fencing work specified in these orders within 4 weeks of the date of these orders.

The applicants and the respondents are to agree on the quote to be accepted. If the applicants and the respondents cannot agree on the quote to be accepted within 6 weeks from the date of these orders, then the quotes are to be referred to the Tribunal so that the Tribunal will choose which contractor is to carry out the fencing work.

In making its decision the Tribunal will not accept any further submission from the parties as to the suitability of the quote.

The quote to be accepted by order of the Tribunal may not necessarily be the lowest or least costly quote;

Acceptance of the quote by the Tribunal will be determined on the basis of compliance with the scope of works as set out in these orders and the license status of the fencing contractor submitting the quote; and,

In the absence of either party submitting a quote within 6 weeks of the date of these orders, then the only quote submitted may be accepted by the Tribunal if it otherwise complies with these orders.

7 The applicants must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.

8 Subject to availability of the fencing contractor, the fencing work is to be completed within three (3) months of the date of these orders.

9 The fencing work is to be carried out in a good and workmanlike manner using new materials.

10 The fencing contractor is to be paid on the day the fencing work is completed;

11 The respondents are to pay to the applicant their contribution, being $1,124.00 if the fencing works are carried out by Jacks Timber & Fencing Wholesalers in accordance with its quote numbered 31919, or one half of the actual cost of the fencing work if the fencing work is carried out by other than Jacks Timber & Fencing Wholesalers, within seven (7) days of completion of the fencing work, without deduction or allowance.

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:	Rose v Graham & Wyn [2015] NSWCATCD 92
Hearing dates:	14 July 2015
Decision date:	05 August 2015
Jurisdiction:	Consumer and Commercial Division
Before:	P Boyce, Senior Member
Decision:	1 The common boundary line between the adjoining lands is to be determined by a registered surveyor and pegged at the applicants’ sole expense. 2 16 metres of the existing dividing fence between the applicants’ and the respondents’ adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders; 3 A hardwood lapped paling fixed from the respondents side of the dividing fence 1.8 metres high 16 metre long is to be erected on hardwood rails and supported by galvanised steel posts core drilled (if necessary) and concreted into the ground to a depth of at least 60cm on the common boundary line between the applicant’s and the respondents’ adjoining lands; 4 The height of the fence is to be measured from the ground level (existing) of the respondent’s land; 5 If it holds a current contractors license to carry out fencing work, Jacks Timber & Fencing Wholesalers is to carry out the fencing work in accordance with its quote numbered 31919. 6 If Jacks Timber & Fencing Wholesalers is not established by the applicants to be licensed to carry out fencing work within 2 weeks of the date of these orders, then: Both the applicants and the respondents are to obtain a quote for the fencing work specified in these orders within 4 weeks of the date of these orders. The applicants and the respondents are to agree on the quote to be accepted. If the applicants and the respondents cannot agree on the quote to be accepted within 6 weeks from the date of these orders, then the quotes are to be referred to the Tribunal so that the Tribunal will choose which contractor is to carry out the fencing work. In making its decision the Tribunal will not accept any further submission from the parties as to the suitability of the quote. The quote to be accepted by order of the Tribunal may not necessarily be the lowest or least costly quote; Acceptance of the quote by the Tribunal will be determined on the basis of compliance with the scope of works as set out in these orders and the license status of the fencing contractor submitting the quote; and, In the absence of either party submitting a quote within 6 weeks of the date of these orders, then the only quote submitted may be accepted by the Tribunal if it otherwise complies with these orders. 7 The applicants must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.