Ward v Herkelman [2023] NSWCATCD 146

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ward v Herkelman [2023] NSWCATCD 146 Hearing dates: 14 August 2023 Date of orders: 1 September 2023 Decision date: 01 September 2023 Jurisdiction: Consumer and Commercial Division Before: J Searson, General Member Decision: (1) The existing dividing fence between the applicant's and the respondent's adjoining lands is to be demolished and removed and the fence line cleared sufficiently to allow the fencing work to be carried out as part of the fencing work the subject of these orders. (2) A new Colorbond dividing fence 1.8 meters high in "ironstone" colour is to be erected on the common boundary line (as identified in the survey report of Daly Smith dated 4 May 2018) between the applicant's and the respondent's adjoining lands. The fence is to taper down to 1.2 meters height (as per council regulations) as per the quote of Andersons Fencing & Gates dated 19 July 2023 (3) The fencing work is to be carried out by of Andersons Fencing & Gates Pty Ltd ("fencing contractor") in accordance with their quote of 19 July 2023 for a Colorbond fence. (4) The respondent's contribution to the cost of the fencing work will be 50% of the cost of 42 meters of fencing work as quoted by of Andersons Fencing & Gates dated 19 July 2023 being $2810. (5) The applicant will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. (6) Subject to availability of the Fencing Contractor, the fencing work is to be completed within two (2) months of the date of these orders. (7) The fencing work is to be carried out in a good and workmanlike manner using new materials. (8) 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. (9) By 14 days of the 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. (10) 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. Catchwords: DIVDING FENCES — Whether sufficient dividing fence — Type of replacement fence — Contribution to cost of fencing work Legislation Cited: Civil and Administrative Tribunal Act 2013 Dividing Fences Act 1991 Threatened Species Conservation Act 1995 Western Lands Act 1901 Cases Cited: Ahern v Havler (ownership to 7) NZ LR 245 Alwiah v Watts & Anor[2004] NSWSC 948 Jiang v Cousins [2019] NSWCATAP 118 at 69 Larney v Johannson [2013] NSWCA 409 Lindsay v Johnston [2014] NSWCATCD 45 Nicholls v Fortmann [2020] NSWCATAP 52 Purcell v Chadwick [2018] NSWCATAP 250 Texts Cited: None cited Category: Principal judgment Parties: Philip Ward (Applicant)