Inacio v Luckose [2020] NSWCATAP 149

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Inacio v Luckose [2020] NSWCATAP 149 Hearing dates: 9 April 2020 Date of orders: 22 July 2020 Decision date: 22 July 2020 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member D Robertson, Senior Member Decision: (1) Appeal allowed. (2) The Orders made on 16 December 2019 in proceedings COM 19/37951 are set aside. (3) The application in proceedings COM 19/37951 is dismissed. Catchwords: ENVIRONMENT AND PLANNING — Fences and boundaries — "Dividing fence" – Definition of fence – Dividing fence constructed adjacent to retaining wall - Whether retaining wall was "any foundation or support necessary for the support and maintenance of the fence" Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Conveyancing Act 1919 (NSW) s 177 Dividing Fences Act 1991 (NSW) s 3 Dividing Fences and Other Legislation Amendment Act 2008 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Alwiah v Watts [2004] NSWSC 948 Brown v Doyle [2010] NSWSC 1269; 179 LGERA 449 Carter v Murray [1981] 2 NSWLR 77 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Fallon v Croese [2016] NSWCATCD 40 Gillard v Russell [2018] NSWCATCD 69 Kontikis v Schreiner (1989) 16 NSWLR 706 McKay v Greentree [2014] NSWCATCD 69 Nham v Hayes [2018] NSWCATCD 17 Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 Shahbazian v Owners Corporation SP 56466 [2017] NSWCATCD 83 Warringah Properties Pty Limited v Babij (Snr) [2006] NSWSC 702 Texts Cited: Law Reform Commission Report 59: Dividing Fences, 1988 Category: Principal judgment Parties: Maria Carolina Inacio (Appellant) Varsha Pichappillil Luckose (First Respondent) Leo John Puthenpurayil (Second Respondent) Representation: Solicitors: Appellant (Self Represented) S Jaeger (McKenzie Friend to Appellant) First Respondent (Self Represented) Second Respondent (Self Represented) File Number(s): AP 20/02632 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 16 December 2019 Before: C Paull, Tribunal Member File Number(s): COM 19/37951