Nasr v Kassiri [2020] NSWCATCD 12

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nasr v Kassiri [2020] NSWCATCD 12 Hearing dates: 13 January 2020 Date of orders: 29 January 2020 Decision date: 29 January 2020 Jurisdiction: Consumer and Commercial Division Before: S Sutherland, General Member Decision: The claim is dismissed. Catchwords: DIVIDING FENCE — Sufficient Dividing Fence —Fencing Notice Legislation Cited: Dividing Fences Act 1991 (NSW) Cases Cited: Jiang v Cousins [2019] NSWCATAP Purcell v Chadwick (2018) NSWCATAP 250 Ahern v Havler (ownership to 7) NZ LR 245 Texts Cited: Nil Category: Principal judgment Parties: Christian Nasr (First Applicant) Fadi Nasr (Second Applicant) Shari Kassiri (Respondent) Representation: First Applicant (Self-represented) Respondent (Self-represented) File Number(s): COM 19/43982 Publication restriction: Nil

REASONS FOR DECISION 1. The applicant brings a claim pursuant to the Dividing Fences Act, 1991 for fencing work to be carried out on the boundary line of the adjoining properties. The applicant's claim includes the erection of a new fence and a retaining wall that is to hold and support the fence. The parties are adjoining owners.

Background 1. About three years ago the parties agreed that a paling fence was to be erected on the boundary of the adjoining owners and the cost of the paling fence was to be equally divided between the parties. At the time the respondent was building a dwelling, and there was a need for a dividing fence between the properties. The fence was erected and the parties paid their proportion of the fence. 2. There is a dispute between the parties as to who engaged the fencer. In the email of Jacob Ni, Director of Nicon Building Pty Ltd (undated) he states that the applicant, Mr Nasr engaged the fencer and the respondent paid half the cost. The fencer erected the paling fence about three years ago and from my examination of the photographs the fence is in good order apart from some minor damage which the applicant takes responsibility. The fence appears to have been sufficient until a survey from C & A Surveyors dated 26 March, 2019 showed that the dividing fence was partially not erected on the boundary line. The parties agree that the fence is not wholly on the boundary. The survey shows that at points the fence is about 1 metre from the boundary. 3. The issue for determination is whether there is sufficient fencing if the fence is not on the boundary line?