Warringah Properties Pty Limited v Babij (Snr) & 1 Ors [2006] NSWSC 702

New South Wales Supreme Court

CITATION : Warringah Properties Pty Limited v Babij (Snr) & 1 Ors [2006] NSWSC 702

HEARING DATE(S) : 10 July 2006

JUDGMENT DATE : 14 July 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The Summons is dismissed. Save for the costs of a Notice of Motion the Plaintiff is to pay the costs of the proceedings. The costs of that Notice of Motion which was brought to obtain an order for security for costs are presently reserved and can be dealt with by Registrar Howe in due course.

CATCHWORDS : Claim for restoration of dividing fence - destroyed by deliberate act - distinction between fence and retaining wall - fence may have other functions - legislative changes - intention of the legislature - indemnity costs and leave.

LEGISLATION CITED : Dividing Fences Act 1991, s 3

CASES CITED : Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706

Warringah Properties Pty Limited (Plaintiff) PARTIES : Alex Babij (Snr) (First Defendant) Alex Babij (Jnr) (Second Defendant)

FILE NUMBER(S) : SC 10689/06

COUNSEL : M W Young/J L Doyle (Plaintiff) S A Benson (First and Second Defendants)

SOLICITORS : Thomson Playford Lawyers (Plaintiff) Coyne & Whittemore Solicitors (First and Second Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 914/05

LOWER COURT JUDICIAL OFFICER : George LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Friday, 14 July 2006

10689 of 2006 Warringah Properties Pty Limited v Alex Babij (Snr) & 1 Ors