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 REASONS FOR DECISION 1. This is a dividing fence dispute under the Dividing Fences Act 1991 (NSW) ('the DF Act') involving rugged rural land outside Tenterfield NSW. The hearing was conducted by telephone on 13 January 2022. Mr Wagner, director, appeared for the applicant. Mr O'Dea appeared in person. 2. Both Mr Wagner and Mr O'Dea gave oral evidence, and both were given the opportunity to cross examine the opposing party. There was only limited cross examination, because many of the factual matters are not in dispute. 3. Prior to the hearing, the matter had been listed for a Conciliation and Group List hearing at the Tribunal on 8 December 2021. The parties were unable to resolve the dispute. The matter was set down for a final hearing, with both parties directed to file and serve documentary evidence. 4. The applicant is the registered owner of two adjoining parcels of land (Lot 57 of DP 1111618; and Lot 13 of DP 752399). 5. The respondent holds a Perpetual Lease over land dedicated as a State Forest under the provisions of the Crown Land Management Act 2016 (NSW). The Forestry Act 2012 (NSW) contains restrictions of usage of State Forest land. 6. The respondent was the lessee of 2 parcels of land that abut the applicant's land (Lot 11 of DP 752399; and Lot 20 of DP 752399). 7. However, in the period immediately before or after the service by the applicant of a Fencing Notice under s 11 of the DF Act dated 8 July 2021; the respondent has ceased to be the lessee of Lot 20 of DP 752399. The respondent "relinquished" that lease, as set out in an email from Mr O'Dea to Mr Wagner dated 13 July 2021. 8. The dispute now relevantly involves the construction of a dividing fence between Lot 11 of DP 752399 and Lot 57 of DP 1111618. 9. The distance of the proposed fence is approximately 3.3 klms. 10. The reason the applicant proposes construction of the fence is that the applicant seeks to use the land to run cattle. By reasons of the restrictions imposed on the respondent as a lessee of State Forrest land, he is either unable to run stock on Lot 11; or is only able to do so subject to significant restrictions. 11. The applicant proposes to construct a four-strand barbed wire fence of 1 metre in height with steel posts; and that gates located at 3 points of the fencing line. 12. The applicant asserts that the cost of removing physical restrictions such as plants; trees; and roots from the fencing line and constructing the fence will be a total of $73,392.99. The applicant seeks a contribution of 50% from the respondent for the cost of constructing the fence (i.e. $36,696.50). 13. The respondent does not oppose the construction of the fence proposed by the applicant. However, the respondent opposes having to contribute to the cost of constructing the fence. 14. There is no dispute between the parties that: 1. There was previously a fence along the boundary (or fencing line) between the properties, which was substantially destroyed by a bushfire a number of years ago. 2. There is an existing fencing line for the construction of a new fence. 3. The fencing notice served by the applicant on the respondent complies with the provisions of s 11 of the DF Act. 4. The fencing notice was validly served in accordance with s 21 of the DF Act. 5. There is currently no sufficient dividing fence. 6. There is a sufficient existing fencing line for a new fence to be constructed without the necessity of a fresh survey (the applicant's documents containing a copy of the Registered Plan of the area that sets out the dimensions of the area between Lot 11 and Lot 57). 7. The type; height; and length of the proposed fence is not opposed by the respondent. 1. The key issue in dispute is whether or not the respondent should have to contribute to the cost of a new fence; and if so, how much. The respondent, in essence, submits that only the applicant has a 'need' for the fence, and consequently the applicant should bear the sole cost of constructing the fence. The respondent also submits that if the applicant runs cattle on his land there is the potential that it will deleteriously affect the terms and conditions of his perpetual lease over Lot 11. Documentary Evidence and Submissions of the Parties 1. Both parties filed and served documentary evidence in accordance with Tribunal directions. Applicant 1. The applicant's documents were filed and served in a bundle on 23 November 2021. There were 33 pages of documents. Relevantly, such documents included: 1. Fencing Notice dated 8 July 2021. 2. Emails between the parties on 11 August 2021 and 13 August 2021. 3. A map of the area from NSW Forestry Corporation with the boundary between Lot 11 and Lot 57 identified in red, and the area the applicant seeks to construct the fence and the gates to be constructed marked in yellow. 4. Registered Plan of DP 1111618. 5. Quote from Mr Claydon dated 16 July 2021. The quote is for 8.5 klm (sic) of fencing at a total cost of $93,500. The applicant submitted that Mr Claydon is a suitably licensed fencer with experience in constructing rural fences. 6. Quote from Stanthorpe Rural Pty Ltd for posts and wire dated 31 August 2021 in the amount of $4,412.25. 7. Quote form AB Contracting Pty Ltd for the cost of clearing boundary fence line to a width of 6 metres for 3.3klms in the amount of $14,400. 8. Title Search. 9. Forestry Commission Conditions of Forest Permit-Grazing dated 28 July 2020. 10. A document in the form of an Excel spreadsheet based on an oral quotation of Drake Fencing. That document identifies the total cost of clearing land and constructing a fence of 3.3m length and including gates as $73,392.99. Respondent 1. The respondent's documents were filed and served on 10 January 2022. The documents were not consecutively page numbered. The documents relevantly included: 1. A written submission from the respondent as to why he should not be held liable to contribute to the fence proposed by the applicant. 2. Extracts of various State and Territory legislation. The references to legislation outside of NSW are not relevant to the determination of the issues in dispute. 1. The respondent did not obtain any quotation of his own for the cost of fencing work to challenge the quotations obtained by the applicant. JURISDICTION OF THE TRIBUNAL 1. The Tribunal is satisfied that the applicant is the owner of Lot 57 of DP 1111618 and the respondent is the lessee of Lot 11 of DP 752399, with both parcels of land adjoining each other. 2. Under s 3 of the DF Act; the definition of "owner" includes a person who holds a lease over land the unexpired term of which is not less than 5 years at the date of service of the fencing notice. The Tribunal is satisfied the respondent falls within this definition. 3. The Tribunal is satisfied that the fencing notice dated 8 July 2021 complies with the provisions of s 11 of the DF Act. Although the fencing notice referred to 8.1 klms of fencing (involving Lots in both DP 1111618 and DP 752399) and the dispute now involves 3.3 klm of fencing (involving only Lot 11 and Lot 57) the Tribunal is satisfied that this does not affect the validity of the fencing notice that was served, because the distance is a lesser distance that that identified in the fencing notice; and the specifications of the fence and contribution to cost remain unchanged other than a lesser distance is now sought to be fenced. 4. As discussed previously, no argument was advanced by the respondent that the fencing notice did not comply with s 11 of the DF Act. 5. The Tribunal is also satisfied that the notice has been served in accordance with s 21 of the DF Act; and the applicant has commenced proceedings more than one month from the date of service of the fencing notice (s 12 (2) of the DF Act). Again, the respondent did not dispute that the fencing notice was not validly served or that the parties had been unable to reach an agreement and the applicant had filed proceedings in the Tribunal more than 1 month from the date of service of the fencing notice. 6. The Tribunal is satisfied that there is no sufficient dividing fence along the 3.3 klm boundary or fencing line between Lot 57 and Lot 11. The applicable principles and legal authorities pertaining to whether there is a sufficient diving fence under s 4 of the DF Act are discussed in Zheng v Lee [2021] NSWCATCD 94 at paras [44]-[45] and Minifie v Maxwell [2020] NSWCATAP 30 at paras [86]-[106]. 7. The Tribunal has jurisdiction to hear and determine the dispute. CONSIDERATION 1. Section 6 of the DF Act states: 6 General principle—liability for fencing work (1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) This section applies whether or not a dividing fence already separates the adjoining lands. 1. Section 7 of the DF Act states: 7 Contribution as between adjoining owners—generally (1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. (2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. (3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose. 1. Section 14 of the DF Act states as follows: 14 Orders as to fencing work (1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following: (a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands, (b) the fencing work to be carried out (including the kind of dividing fence involved), (c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work, (d) which portion of the dividing fence is to be constructed or repaired by either owner, (e) the time within which the fencing work is to be carried out, (f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land, (g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands. (1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act). (2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act. 1. As discussed previously, the real issue in dispute in these proceedings is the cost of contribution (if any) by the respondent to the construction of the fence. 2. The respondent submits that only the applicant obtains the benefit of the fence, so the applicant should bear the sole cost of constructing the fence. 3. The respondent submits that the "standard" of the fence proposed to be constructed by the applicant is better than what exists, because (i) there is no current fence; and (ii) the fence contains gates. 4. The respondent further submits that the construction of the fence and the use by the applicant to run stock on his land may affect the terms and conditions of the respondent's perpetual lease. However, the respondent's submissions did not clearly reveal what terms and conditions would be affected or how they would be affected. In any event, this dispute is about the construction of a fence under the DF Act; not the manner in which the applicant intends to use his land. The jurisdiction of the Tribunal does not extend beyond the DF Act. 5. In circumstances where there is clearly no current sufficient dividing fence pursuant to s 4 of the DF Act the matters raised by the respondent can only be considered in the context of ss 6, 7 and 14 (1) (c) of the DF Act. 6. In the context of ss 6 and 7 of the DF Act, the starting point is that the parties are to contribute equally to the cost of constructing a sufficient dividing fence unless the fencing work involves construction of a fence of a standard "greater" than the standards of a sufficient dividing fence. To the extent that the applicant seeks to construct a fence of a "greater" standard than the standard of a sufficient dividing fence, the applicant bears the additional cost. 7. Taking into account ss 6 and 7 of the DF Act, there is no general discretion reduce or eliminate contribution to the cost of constructing a fence where there is no existing sufficient dividing fence on the basis of matters such as the benefit that the fence will give the respective neighbours in regard to the use of their land; the ability of the respective neighbours to pay for the proposed fence; or that the fence may give rise to other circumstances that may cause restrictions to one neighbour's use of their land. 8. The Tribunal is satisfied that the type of fence that should be constructed is a four strand barbed wire fence of 1 metre height that includes gates, as proposed by the applicant. The Tribunal is also satisfied that, due to the nature of the rural area, it will be necessary to conduct works to clear the existing fencing line so that the fence can be constructed. 9. In respect of the total cost of the fence, the applicant did not provide a written quotation from Drake Fencing. The information orally provided to Mr Wagner that forms the basis of the Excel spreadsheet identifying the total cost as $73,392.99 for the clearing and construction of 3.3klm of fencing. 10. However, when the applicant was seeking 8.1 klms of fencing in the fencing notice, the amount of cost was identified as "in the range (sic) of $105,100 (excl. of GST)". Adding the GST amount, that would bring the total cost for 8.1 klms of fence to $115,610. That amount is consistent with the quotation of Mr Clayton and the additional quotations for clearing the fencing line and the cost of materials. 11. If a pro-rata calculation of 3.3 klm is adopted to the amount of $115,610; the total amount for the cost of fencing is $47,100.37. 12. That is a significantly lower amount than the amount of $73,392.99. 13. In the absence of a detailed quotation from Drake Fencing that explains why the cost of constructing the fence (including access and flood gates as part of the fence) the Tribunal is not satisfied that the total cost of constructing the fence will be $73,392.00 rather than $47,100.37. 14. The Tribunal accepts that an extensive expert report detailing the type of work and the cost of the work is not a necessity (Khan v Kang [2014] NSWCATAP 48 at [48]-[53]) but the onus remains on the applicant to establish the likely cost of the work in circumstances where it seeks a 50% contribution to the cost. 15. Considering the discrepancies between the quotations for cost of fencing; clearing the fencing line; and materials in the documents attached to the fencing notice and the Excel spreadsheet estimate prepared by the applicant on the basis of what Mr Wagner was told by Drake Fencing, the Tribunal is satisfied that the contribution of the respondent to the cost of the fencing work between the two properties should be no greater than 50% of $47,100.37. Such an amount is $23,550.19. ORDERS 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: 1. Demolish and remove any remaining components of the previous bushfire damaged fence. 2. Remove plants, trees, roots, rocks and shrubbery along the existing fencing line only to the extent necessary to construct a new fence. 3. 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. 4. 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. 5. The fencing work is to be performed by a suitably licensed fencing contractor selected by the applicant. 6. 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. 7. 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. 8. 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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2022