Samitz & Samitz v Connolly & Turnbull

[2016] NSWCATCD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Samitz & Samitz v Connolly & Turnbull [2016] NSWCATCD 24
Hearing dates:	11 January 2016
Decision date:	03 March 2016
Jurisdiction:	Consumer and Commercial Division
Before:	M Eftimiou, General Member
Decision:	1 A Treated Pine Single Paling fence is to be built in accordance with the quotation provided by Local Fencing ABN 30149013543 dated 20 January 2016 on or before 1 April 2016. The fence is to be 25 m x 1.8 Treated Pine Paling Fence. The parties are to share the cost of the fence equally. 2 The applicant is to pay to the respondent $330.00 (being half the cost of the Survey Report), immediately.
Legislation Cited:	Dividing Fences Act 1991
Category:	Principal judgment
Parties:	H P & R M Samitz (applicants) J Connolly and L Turnbull (respondents)
File Number(s):	COM 15/60766
Publication restriction:	Unrestricted

Reasons for the Decision

1. The application was lodged with the Tribunal on 5 November 2015. The applicants sought an order for the determination of fencing work to be carried out and the manner in which each party was to contribute to pay for any works.

2. Section 4 of the Dividing Fences Act 1991 requires a determination as to “sufficient dividing fence”. The section relevantly states

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a) the existing dividing fence (if any),

(b) the purposes for which the adjoining lands are used or intended to be used,

(c) the privacy or other concerns of the adjoining land owners,

(d) the kind of dividing fence usual in the locality,

(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,…..

3. There was no dispute between the parties that the fence dividing the two properties was insufficient and required the making of an order by the Tribunal.

4. However there was dispute between the parties as to who should be responsible for removing the debris that lay on the fence line and who should be responsible for the cost of the survey report.

5. The applicants sought to rely on the following documents:

1. A number of photographs:

2. A hand drawing;

3. A survey report; and

4. A quotation dated 15 August 2014 from Local Fencing.

6. The respondents sought to rely upon a number of documents including the following documents:

1. A surveyors Report;

2. Correspondence between the parties;

3. Local Fencing Pty Ltd quotation dated (15 August 2014);

4. Sydney Fencing and Gates Australia Quote dated 20 December 2015; and

5. Fencing Photographs.

7. 7   The Tribunal heard sworn evidence from both parties in relation to the dispute. The Tribunal notes that the parties at the hearing agreed that there is no sufficient dividing fence. The parties agreed to half the cost of the dividing fence. The applicant agreed to pay $330 towards the cost of the Survey Report. The respondent agreed to ring the Surveyor and give his consent to the Surveyor speaking to the applicant. The respondent agreed to remove any building debris that sits on the respondents’ side of the property to allow the fencing work to be carried out. The respondent agreed to provide to the applicant and the Tribunal an itemised quotation from Sydney Fencing and Gates.

8. 8   The only issue remaining was the issue of which of the two quotes should be accepted by the Tribunal. The quotation provided by the applicant from Local Fencing, is now more than 12 months old. The Tribunal agreed to give the applicant an opportunity to obtain an up to date quotation from Local Fencing.

9. 9   The decision of the Tribunal was reserved and the following direction was made.

The applicant is to provide to the Tribunal and the respondent an up to date quotation from Local Fencing for the building of a 25 x 1.8 m treated Pine Paling Fence. The quotation is to include the demolishing and removal of old fence and the building of a retaining wall if deemed necessary. If Local Fencing deem that a retaining wall is not necessary they are to provide an opinion together with the reasons for their opinion in the quotations. The Tribunal will then make a determination on the material before it.

10. 10   On 27 January 2016 the applicant provided to the Tribunal an updated quotation from Local Fencing.

11. 11   The Tribunal now has two quotations before it. The quotation from Local Fencing is dated 20 January 2016 where the scope of work is listed as follows:

“25 x 1.8 treated Pine Paling Fence $1400

Demolish and remove old fence then dig back $480

Retain under fence 200m High $475.

Total $2355.00 including GST.

12. 12    The quotation from Sydney Fencing & Gates dated 11 January 2016 provides:

Supply and Installation of Treated Pine Single Paling fence 24.6 x 1800 $1840.00

Extras Included: Treated Pine Retainer Wall $300

Demolition and removal included $380.00.

Total $2772.00

13. 13    The applicant wrote to the Tribunal posing a number of questions that were determined at the hearing of the matter by consent of the parties. However, for the sake of clarity the Tribunal will attempt to answer the questions for the applicant.

1. The quotation provided by the applicant and attached to the Fencing Notice was for a 25 m fence:

2. At the hearing of the matter the respondent agreed to give consent to the Surveyor to answer any questions that the applicant may have in relation to the Survey Report. The request that the applicant is to become the Surveyors “client” is misconceived.

14. 14 On the evidence before it the Tribunal finds pursuant to section 4 of the Act that the existing diving fence is not a sufficient dividing fence.

15. 15.    The common boundary line between the adjoining lands is to be determined by a registered surveyor and pegged. Each party is to pay $330.00 towards the Surveyor costs.

16. 16   The existing dividing fence between the applicants’ and the respondents’ adjoining lands is to be demolished and removed by the fencing contractor.

17. 17   The fence line is to be cleared sufficiently by the respondent to allow the fencing work to be carried out as part of the fencing work the subject of these orders.

18. 18   A treated pine paling fence 1.8 metres height and 25 metres long is to be erected. Local Fencing is to carry out the fencing work in accordance with the quotation provided on 20 January 2016. The Tribunal has determined that as this is the applicant’s preferred contractor and that it is $417.00 cheaper than the respondents’ quotation.

19. 19    Each party will share the cost of the fencing work. The total as set out in the quotation being $2,355.00.

20. 20   Subject to availability of the fencing contractor, the fencing work is to be completed within three months of the date of these orders.

21. 21   The fencing work is to be carried out in a good and workmanlike manner using new material.

22. 22   The fencing contractor is to be paid on the day the fencing work is completed.

23. 23   The respondents are to pay Local Fencing their contribution being $1,177.50 of the fencing work.

24. 24   The applicant is to pay to the respondent $330.00 towards the cost of the Survey Costs immediately.

M Eftimiou

General Member

Civil and Administrative Tribunal of New South Wales

3 March 2016

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: 29 April 2016