Ward v Herkelman - [2023] NSWCATCD 146

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ward v Herkelman [2023] NSWCATCD 146
Hearing dates: 14 August 2023
Date of orders: 1 September 2023
Decision date: 01 September 2023
Jurisdiction: Consumer and Commercial Division
Before: J Searson, General Member
Decision:
(1) The existing dividing fence between the applicant's and the respondent’s 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.
(2) A new Colorbond dividing fence 1.8 meters high in “ironstone” colour is to be erected on the common boundary line (as identified in the survey report of Daly Smith dated 4 May 2018) between the applicant's and the respondent’s adjoining lands. The fence is to taper down to 1.2 meters height (as per council regulations) as per the quote of Andersons Fencing & Gates dated 19 July 2023
(3) The fencing work is to be carried out by of Andersons Fencing & Gates Pty Ltd (“fencing contractor”) in accordance with their quote of 19 July 2023 for a Colorbond fence.
(4) The respondent’s contribution to the cost of the fencing work will be 50% of the cost of 42 meters of fencing work as quoted by of Andersons Fencing & Gates dated 19 July 2023 being $2810.
(5) The applicant will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.
(6) Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders.
(7) The fencing work is to be carried out in a good and workmanlike manner using new materials.
(8) The fencing work is to be paid for by the applicant and the respondent is to contribute to the cost of the fencing work by way of making a payment to the applicant as set out in these orders.
(9) By 14 days of the completion of the fencing work, the applicant is to send to the respondent in writing a copy of all tax invoices that pertain to the fencing work the subject of these orders.
(10) By 28 days of the date on which the applicant has sent the respondent a copy of all the tax invoices that pertain to the fencing work the subject of these orders, the respondent is to pay the applicant 50% of the cost of the fencing work.

Catchwords:
DIVDING FENCES — Whether sufficient dividing fence — Type of replacement fence — Contribution to cost of fencing work

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Dividing Fences Act 1991
Threatened Species Conservation Act 1995
Western Lands Act 1901

Cases Cited:
Ahern v Havler (ownership to 7) NZ LR 245
Alwiah v Watts & Anor[2004] NSWSC 948
Jiang v Cousins [2019] NSWCATAP 118 at 69
Larney v Johannson [2013] NSWCA 409
Lindsay v Johnston [2014] NSWCATCD 45
Nicholls…

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.

Continue reading Ward v Herkelman

Details

AGLC: Ward v Herkelman [2023] NSWCATCD 146
Case: [2023] NSWCATCD 146
Decision Date: 01 September 2023

CaseChat Overview and Summary

The case of Ward v Herkelman involved a dispute between adjoining landowners over the adequacy of a dividing fence and the costs associated with its replacement. The matter was heard in the Local Court of New South Wales. The applicant, Ward, sought an order for the removal and replacement of the existing fence, and the respondent, Herkelman, was required to contribute to the costs of the replacement.

The primary legal issue before the court was whether the existing fence between the parties’ properties met the requirements for a sufficient dividing fence under local council regulations. The court also needed to determine the appropriate type of fence to be erected and how the costs of the replacement should be shared between the parties.

The court found that the existing fence did not meet the council's regulations for a dividing fence. It ordered the removal of the existing fence and the erection of a new Colorbond fence of specified dimensions. The court considered council regulations, the quote from the fencing contractor, and the agreement between the parties regarding the cost-sharing arrangement. The court ruled that Herkelman should contribute 50% of the cost of the replacement fencing work as per the contractor's quote. The court also specified the manner in which the fencing work was to be carried out and the timeline for completion.

The court made specific orders regarding the demolition and replacement of the fence, the materials and specifications for the new fence, the division of costs, and the timeline for completion of the work. The respondent was directed to contribute 50% of the cost of the fencing work, and the applicant was to manage the instructions to the contractor. The court set out detailed timelines for the completion of the work and the payment of costs.

Orders

Orders of the court

(1) The existing dividing fence between the applicant's and the respondent’s 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.

(2) A new Colorbond dividing fence 1.8 meters high in “ironstone” colour is to be erected on the common boundary line (as identified in the survey report of Daly Smith dated 4 May 2018) between the applicant's and the respondent’s adjoining lands. The fence is to taper down to 1.2 meters height (as per council regulations) as per the quote of Andersons Fencing & Gates dated 19 July 2023

(3) The fencing work is to be carried out by of Andersons Fencing & Gates Pty Ltd (“fencing contractor”) in accordance with their quote of 19 July 2023 for a Colorbond fence.

(4) The respondent’s contribution to the cost of the fencing work will be 50% of the cost of 42 meters of fencing work as quoted by of Andersons Fencing & Gates dated 19 July 2023 being $2810.

(5) The applicant will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work.

(6) Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders.

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

(8) The fencing work is to be paid for by the applicant and the respondent is to contribute to the cost of the fencing work by way of making a payment to the applicant as set out in these orders.

(9) By 14 days of the completion of the fencing work, the applicant is to send to the respondent in writing a copy of all tax invoices that pertain to the fencing work the subject of these orders.

(10) By 28 days of the date on which the applicant has sent the respondent a copy of all the tax invoices that pertain to the fencing work the subject of these orders, the respondent is to pay the applicant 50% of the cost of the fencing work.

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:	Ward v Herkelman [2023] NSWCATCD 146
Hearing dates:	14 August 2023
Date of orders:	1 September 2023
Decision date:	01 September 2023
Jurisdiction:	Consumer and Commercial Division
Before:	J Searson, General Member
Decision:	(1) The existing dividing fence between the applicant's and the respondent’s 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. (2) A new Colorbond dividing fence 1.8 meters high in “ironstone” colour is to be erected on the common boundary line (as identified in the survey report of Daly Smith dated 4 May 2018) between the applicant's and the respondent’s adjoining lands. The fence is to taper down to 1.2 meters height (as per council regulations) as per the quote of Andersons Fencing & Gates dated 19 July 2023 (3) The fencing work is to be carried out by of Andersons Fencing & Gates Pty Ltd (“fencing contractor”) in accordance with their quote of 19 July 2023 for a Colorbond fence. (4) The respondent’s contribution to the cost of the fencing work will be 50% of the cost of 42 meters of fencing work as quoted by of Andersons Fencing & Gates dated 19 July 2023 being $2810. (5) The applicant will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. (6) Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders. (7) The fencing work is to be carried out in a good and workmanlike manner using new materials. (8) The fencing work is to be paid for by the applicant and the respondent is to contribute to the cost of the fencing work by way of making a payment to the applicant as set out in these orders. (9) By 14 days of the completion of the fencing work, the applicant is to send to the respondent in writing a copy of all tax invoices that pertain to the fencing work the subject of these orders. (10) By 28 days of the date on which the applicant has sent the respondent a copy of all the tax invoices that pertain to the fencing work the subject of these orders, the respondent is to pay the applicant 50% of the cost of the fencing work.
Catchwords:	DIVDING FENCES — Whether sufficient dividing fence — Type of replacement fence — Contribution to cost of fencing work
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Threatened Species Conservation Act 1995 Western Lands Act 1901
Cases Cited:	Ahern v Havler (ownership to 7) NZ LR 245 Alwiah v Watts & Anor[2004] NSWSC 948 Jiang v Cousins [2019] NSWCATAP 118 at 69 Larney v Johannson [2013] NSWCA 409 Lindsay v Johnston [2014] NSWCATCD 45 Nicholls…