Sobolewski v Shetlat

[2005] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

SOBOLEWSKI v SHETLAT

Judgment of His Honour Judge Boylan

12 October 2005

FENCES AND BOUNDARIES

Fencing dispute - consideration of what is "adequate fence".  Order for contribution.

Fences Act 1975 8(a), 12A, referred to.

SOBOLEWSKI v SHETLAT
[2005] SADC 140

1. This is an application to review a Magistrate’s decision pursuant to the Fencing Act 1975, requiring Ms Sobolewski to contribute  half the cost of a fence to be constructed on the boundary of her property and her neighbour’s, Mr Shetlat’s property. 

2. There is currently a 1.5 metre galvanised iron fence on the boundary.  That fence is thirty years old.  There is no dispute between the parties that it must be replaced.  The issue is who should bear the cost of the replacement. 

3. The relevant fence is on the boundary which divides the rear of Mr Shetlat’s property from part of the northern boundary of Ms Sobolewski’s property.  Their properties are in Windsor Gardens in a residential area.  Both Ms Sobolewski and Mr and Mrs Shetlat have lived in their respective houses for about thirty years.  They both moved into those houses when they were new.  I was told that the area in which they live is part of an estate built some thirty years ago in what had been an older area.  When the area in which they live was subdivided, the fences were 1.5 metres high and were constructed of galvanised iron sheets with hardwood rails and posts. 

4. The Magistrate ordered that the court expert, a Mr John Robinson, attend the premises and inspect the fence in question and provide a report to the court and to the parties.  That report concludes:

   “The fence is in very poor repair, it is some thirty years old;  that the timber posts have rotted through at ground level and are non existent in some areas and that in several places sheets of iron are propped up with whatever is available.  In short, this fence is in a state of disrepair and should be renewed.”

5. Both parties in this dispute made submissions to me that the disrepair noted by Mr Robinson was the result from the wrongful act or default of the other of them.

6. In my view, it is not necessary for me to resolve that dispute.  The fence has served its purpose well for thirty years.  No doubt there has been normal wear and tear.  In my view it is only fair that the parties each contribute half the cost of a new fence. 

7. An adequate fence is “a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought.”  See Fences Act 1975 Section 8(a).

8. As I have said, the original fences in the area were 1.5 metres high. I was not given evidence of changes to fencing in the area other than to the fences on the properties of both Ms Sobolewski and Mr Shetlat. Ms Sobolewski has a rear fence that is 2 metres high. That fence does not form a boundary between her and Mr Shetlat’s property. But part of the boundary fence between them is 2.2 metres high because Ms Sobolewski has extended the height of the original fence. In my view, an adequate fence for the purposes of the Fences Act, would be a corrugated iron zincalume fence with capping. The appropriate height is 1.8 metres. Mr Shetlat obtained a number of quotations for fencing. Owing to the time that has elapsed since he obtained them there have been price rises. He has obtained from Abco Fencing a quotation dated the 1^st of July 2005.  That quotation for a 1.8 metre fence constructed in the way I have described is $1,090.00.  In addition, Abco Fencing have quoted $220 for the removal and dumping of the old fence.  Although that it an updated quote, it accords with the tenor of the judgment of the learned Special Magistrate.  Unfortunately, although His Honour was of the view that 1.8 metre corrugated iron zincalume fence with capping was appropriate, he ordered Ms Sobolewski to pay half of the cost of a 2 metre fence.  Therefore I rescind His Honour’s judgment and order as follows: That Ms Sobolewski pay half the cost of a 1.8 metre high fence constructed as described.  The cost of that fence is $1,310 including the removal and dumping of the old fence as quoted by ABCO Fencing on 1 July 2005 (see Fences Act S12A). I order that Ms Sobolewski pay half that amount namely $655.00. If there have been further price rises since the 1^st of July 2005, I indicate that I will be minded to order that Ms Sobolewski pay half the cost of a fence to be constructed by Abco Fencing in the manner described.  If there has been such a price rise and the parties are unable to agree, then I give them liberty to apply to come back before me within fourteen days from the date of this judgment.