The Owners Strata Plan No 44958 v Michel

The Owners Strata Plan No 44958 (the applicant) brought an application against Michel (the respondent) seeking an order that a retaining wall be erected along the boundary line between the two parties' properties. The applicant claimed that the retaining wall was necessary to meet the requirements of a dividing fence under the Strata Titles Act 1985 (Vic). The respondent objected to the application, arguing that the existing fence, which was a Colourbond fence, was sufficient to meet the requirements of a dividing fence. The dispute was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the retaining wall was required to be part of the dividing fence between the parties’ properties. The court also had to determine whether the existing fence met the requirements of a dividing fence under the Strata Titles Act 1985 (Vic). The court had to consider the relevant provisions of the Act, as well as any relevant case law or precedent.

The court found that the retaining wall was not required to be part of the dividing fence between the parties’ properties. The court held that the existing fence, which was a Colourbond fence, was sufficient to meet the requirements of a dividing fence under the Strata Titles Act 1985 (Vic). The court noted that the relevant provisions of the Act required a dividing fence to be “sufficiently substantial” and to “effectively separate the respective properties”. The court found that the existing fence met these requirements. The court also noted that the retaining wall was not part of the fence line and was not necessary to meet the requirements of a dividing fence.

The court made an order that the following fencing work be carried out on or before 11 April 2024, on the boundary between the applicant's land and the respondent’s land: remove the existing Colourbond fence, supply and install new posts along the same line, and reinstall existing panels. The work is to be done by Bula Brothers Landscaping. The applicant is to provide instructions to the contractor for the carrying out of the work and is to pay the contractor. Within three days of the completion of the work, and payment of the contractor in full, whichever occurs later, the respondent is to pay to the applicant one half of the cost of that work.