Xiao v Ying - [2025] NSWLEC 1417

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Xiao v Ying [2025] NSWLEC 1417
Hearing dates: 17 February 2025
Date of orders: 13 June 2025
Decision date: 13 June 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is upheld to the extent of these orders.
(2)   Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified person to carry out the remedial works to the southernmost part of the parties’ masonry dividing fence as specified in Annexure A.
(3)   On reasonable notice, the applicant is to allow all access for the works in Order (2) during reasonable hours of the day.
(4)   Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent three quotes for the erection of a replacement timber paling fence by a suitably qualified fencing contractor. The quotes are to:
(a)   be for the full extent of the shared boundary between the in-situ masonry walls where there is presently no dividing fence (approximately 11 metres in length);
(b)   include a method for construction of the fence to ensure it is structurally sound and results in no further damage to the retaining wall. The construction method should include to be constructed on fence posts embedded into natural ground with concrete piers, in the same position as where the previous timber dividing fence was situated, additionally anchored to the side wall of 20A Chilton Parade’s existing platform to ensure structural integrity if necessary;
(c)   be for a fence constructed to a finished height of 1800mm above the existing 20A Chilton Parade platform level/slope level along the shared boundary line (see Annexure B); and
(d)   comply with any requirements of a construction certificate, if one is required (see Orders (5)–(7) below).
(5)   If development consent is required for the new fence, within 60 days of the date of these orders, the applicant is to lodge a development application seeking development consent for:
(a)   the erection of a replacement timber paling fence (approximately 11 metres in length) in accordance with the works specified in Order (4);
(b)   removal of gas, electrical wires and water pipes if necessary; and
(c)   any works required for the installation of supporting posts.
(6)   On the assumption that development consent in Order (5) is granted, the applicant is to engage a principal certifier and obtain a construction certificate for the works approved under the development consent within 30 days of the grant of consent.
(7)   The respondent is to provide and not withhold owner’s consent for any applications or forms required to obtain development consent and a construction certificate for the above works.
(8)   Within 90 days of the date of these orders, the parties are to engage an independent, suitably qualified fencing contractor to carry out the works specified in order (4), in accordance with one of the three quotations provided under order (4). If the…

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 Xiao v Ying

Details

AGLC: Xiao v Ying [2025] NSWLEC 1417
Case: [2025] NSWLEC 1417
Decision Date: 13 June 2025

CaseChat Overview and Summary

Xiao and Ying were involved in a dispute before the Supreme Court of New South Wales. The primary issue was the maintenance and replacement of a dividing fence between their properties, specifically the southernmost part of the masonry dividing fence and the erection of a new timber paling fence along the shared boundary. The case centred on the obligations of both parties in repairing and replacing the fence, and the need for development consent and a construction certificate for the new fence.

The court was required to determine the respective responsibilities of Xiao and Ying in repairing the existing masonry fence, obtaining quotes for a new timber paling fence, and the necessity of development consent and a construction certificate for the proposed works. Additionally, the court had to decide on the division of costs between the parties for the necessary works.

In its decision, the court held that Xiao was responsible for engaging and paying for a qualified person to carry out the remedial works on the masonry fence. Xiao was also required to obtain and provide quotes for the erection of a replacement timber paling fence, ensuring the quotes complied with specific construction requirements. If development consent was needed, Xiao had to apply for it within the specified timeframe. The court further determined that the parties were to share the costs of the works and that the respondent was to take steps to prevent future damage from the creeping fig. The court retained the exhibits and granted the parties liberty to relist if they failed to comply with the orders within the specified timeframes.

Orders

Orders of the court

The Court orders:

(1) The application is upheld to the extent of these orders.

(2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified person to carry out the remedial works to the southernmost part of the parties’ masonry dividing fence as specified in Annexure A.

(3) On reasonable notice, the applicant is to allow all access for the works in Order (2) during reasonable hours of the day.

(4) Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent three quotes for the erection of a replacement timber paling fence by a suitably qualified fencing contractor. The quotes are to:

(a) be for the full extent of the shared boundary between the in-situ masonry walls where there is presently no dividing fence (approximately 11 metres in length);

(b) include a method for construction of the fence to ensure it is structurally sound and results in no further damage to the retaining wall. The construction method should include to be constructed on fence posts embedded into natural ground with concrete piers, in the same position as where the previous timber dividing fence was situated, additionally anchored to the side wall of 20A Chilton Parade’s existing platform to ensure structural integrity if necessary;

(c) be for a fence constructed to a finished height of 1800mm above the existing 20A Chilton Parade platform level/slope level along the shared boundary line (see Annexure B); and

(d) comply with any requirements of a construction certificate, if one is required (see Orders (5)–(7) below).

(5) If development consent is required for the new fence, within 60 days of the date of these orders, the applicant is to lodge a development application seeking development consent for:

(a) the erection of a replacement timber paling fence (approximately 11 metres in length) in accordance with the works specified in Order (4);

(b) removal of gas, electrical wires and water pipes if necessary; and

(6) On the assumption that development consent in Order (5) is granted, the applicant is to engage a principal certifier and obtain a construction certificate for the works approved under the development consent within 30 days of the grant of consent.

(7) The respondent is to provide and not withhold owner’s consent for any applications or forms required to obtain development consent and a construction certificate for the above works.

(8) Within 90 days of the date of these orders, the parties are to engage an independent, suitably qualified fencing contractor to carry out the works specified in order (4), in accordance with one of the three quotations provided under order (4). If the parties cannot agree on the selection of a quote, they are to proceed with the middle-priced quote.

(9) The applicant and the respondent are to each pay 50% of the cost of the fencing works in Order (8).

(10) Within 7 days of the receipt of an itemised costs account and paid tax invoices for the works in Order (2), the applicant is to reimburse the respondent 50% of the cost of those works.

(11) Within 7 days of the receipt of an itemised costs account and paid tax invoices for the costs of complying with Orders (5)–(7), the respondent is to reimburse the applicant 50% of those costs.

(12) The respondent is to take all reasonable steps necessary to prevent the creeping fig causing damage to any part of the dividing fence in future.

(13) The parties are granted liberty to relist should they be unable to comply with these orders within the specified timeframes.

(14) The exhibits are retained.

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:	Xiao v Ying [2025] NSWLEC 1417
Hearing dates:	17 February 2025
Date of orders:	13 June 2025
Decision date:	13 June 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is upheld to the extent of these orders. (2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified person to carry out the remedial works to the southernmost part of the parties’ masonry dividing fence as specified in Annexure A. (3) On reasonable notice, the applicant is to allow all access for the works in Order (2) during reasonable hours of the day. (4) Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent three quotes for the erection of a replacement timber paling fence by a suitably qualified fencing contractor. The quotes are to: (a) be for the full extent of the shared boundary between the in-situ masonry walls where there is presently no dividing fence (approximately 11 metres in length); (b) include a method for construction of the fence to ensure it is structurally sound and results in no further damage to the retaining wall. The construction method should include to be constructed on fence posts embedded into natural ground with concrete piers, in the same position as where the previous timber dividing fence was situated, additionally anchored to the side wall of 20A Chilton Parade’s existing platform to ensure structural integrity if necessary; (c) be for a fence constructed to a finished height of 1800mm above the existing 20A Chilton Parade platform level/slope level along the shared boundary line (see Annexure B); and (d) comply with any requirements of a construction certificate, if one is required (see Orders (5)–(7) below). (5) If development consent is required for the new fence, within 60 days of the date of these orders, the applicant is to lodge a development application seeking development consent for: (a) the erection of a replacement timber paling fence (approximately 11 metres in length) in accordance with the works specified in Order (4); (b) removal of gas, electrical wires and water pipes if necessary; and (c) any works required for the installation of supporting posts. (6) On the assumption that development consent in Order (5) is granted, the applicant is to engage a principal certifier and obtain a construction certificate for the works approved under the development consent within 30 days of the grant of consent. (7) The respondent is to provide and not withhold owner’s consent for any applications or forms required to obtain development consent and a construction certificate for the above works. (8) Within 90 days of the date of these orders, the parties are to engage an independent, suitably qualified fencing contractor to carry out the works specified in order (4), in accordance with one of the three quotations provided under order (4). If the…