JDW Services Pty Ltd as Trustee for JDW Superannuation Fund v O’Dea [2022] NSWCATCD 29

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JDW Services Pty Ltd as Trustee for JDW Superannuation Fund v O'Dea [2022] NSWCATCD 29 Hearing dates: 13 January 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: 1. The applicant is to cause the performance of fencing work between Lot 11 of DP 752399 and Lot 57 of DP 1111618 by 3 months from the date of this decision with such work and contribution for such work to be as follows: a) Demolish and remove any remaining components of the previous bushfire damaged fence. b) Remove plants, trees, roots, rocks and shrubbery along the existing fencing line only to the extent necessary to construct a new fence. c) Construct a four-strand barbed wire fence with steel posts and gates along the existing fencing line between Lot 11 of DP 752399 and Lot 57 of DP 1111618. To the extent that the existing fencing line cannot be established or is unclear, the fence is be located on the boundary between Lot 11 of DP 752399 and Lot 57 of DP 1111618 as set out in the Forestry Corporation map of the area showing the division between Lots and the dimensions set out in the applicable Deposited Plan of the area. d) The height of the fence is to be 1 metre. The fencing work is to be approximately 3.3klms in length, but is not to exceed the area between Lot 11 of DP 752399 and Lot 57 of DP 1111618. e) The fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant. f) 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. g) By 21 of days of 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. h) 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 up to a maximum amount of $23,550.19. If the total cost of the fencing work is less than $47,100.37 the respondent is to pay the applicant 50% of the total cost. If the total cost of the fencing work exceeds $47,100.37 the respondent is to pay the applicant $23,550.19. Catchwords: DIVDING FENCES — Whether sufficient dividing fence — Type of replacement fence — Dimensions of replacement fence — Location of replacement fence — Contribution to cost of fencing work Legislation Cited: Crown Land Management Act 2016 (NSW) Dividing Fences Act 1991 (NSW) Forestry Act 2012 (NSW) Cases Cited: Minifie v Maxwell [2020] NSWCATAP 30 Zheng v Lee [2021] NSWCATCD 94 Khan v Kang [2014] NSWCATAP 48 Texts Cited: Nil Category: Principal judgment Parties: JDW Services Pty Ltd as Trustee for JDW Superannuation Fund (Applicant) Michael O'Dea (Respondent) Representation: J Wagner (Applicant) Respondent (Self-Represented) File Number(s): COM 21/44896 Publication restriction: Nil