Frost v Keough [2015] NSWCATCD 79

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frost v Keough [2015] NSWCATCD 79 Hearing dates: 11 May 2015 Decision date: 23 July 2015 Jurisdiction: Consumer and Commercial Division Before: M Harrowell, Principal Member Decision: The orders made are set out in paragraph 88 these reasons and in the schedule marked Specification for the Fence Catchwords: Dividing fence – give and take fence. Legislation Cited: Dividing Fences Act, 1991 Civil and Administrative Tribunal Act No. 2, 2013 Cases Cited: Landale v Menzies & Anor 9 CLR 89 Erratt v Local Land Board Armidale [2008] NSWSC 959 Texts Cited: Nil Category: Principal judgment Parties: Carol Anne Frost (applicant) Robert Arthur Keough (respondent) Representation: Mr D Clifton, Clifton Legal (applicant) Ms S Burnheim, APJ Law (respondent) File Number(s): COM 14/50597 Publication restriction: Unrestricted

reasons for decision 1. The applicant, Carol Frost is the owner of a property called Robindale being lot 132 in Deposited Plan 753260. The property is located at Swanvale in New South Wales. 2. Her neighbour is the respondent, Robert Keough who owns lot 154 in Deposited Plan 753260. This property is known as Tryagain. 3. The boundary between the two properties is the centreline of Little Oaky Creek. 4. The applicant seeks an order from the Tribunal under the Dividing Fences Act, 1991. 5. The applicant originally commenced proceedings in the Local Court of New South Wales at Armidale, the Local Court also having jurisdiction to determine applications under the Dividing Fences Act. On 9 October 2014 the Local Court made an order, by consent, transferring the proceedings to the Tribunal. 6. There is no dispute in these proceedings that the Tribunal has jurisdiction to hear and determine this application. In this regard there is no dispute that: 1. that there is no sufficient dividing fence; and 2. notice has been given by the applicant to the respondent to contribute towards carrying out necessary fencing work. 1. It is also common ground that the fence cannot be erected on the boundary which is Little Oaky Creek, and in these circumstances that it is appropriate for the Tribunal to make an order for the provision of what is known as a "give and take" fence. 2. Such a fence becomes necessary where it is not possible to place the fence of the boundary line due to the physical features of the land or where it might be considered unduly expensive because it is unnecessarily long. 3. The parties agree that the expression "give and take fence" has the meaning described by Barton J in Landale v Menzies & Anor (1909) 9 CLR 89, where is Honour said at page 105: "The very name imports the thing that happens, namely, an adjustment of the direction of the fence by way of compromise. Each holder gives some country and some water, and takes—that is receives—some of each from his neighbour. Thus a less tortuous line is achieved, to the great benefit of both parties in the saving of first cost and upkeep… but it is the part of each to see to it that the "give and take" process amounts to what is called a fair deal- and that in respect not only to the land but of the water and the chances of water… where there is water, the obtaining a fair share of it is of course a more important consideration than the gain of the occupation of a few acres for each of which the yearly rent is but a few pence." 1. The application of this concept to the Dividing Fences Act, 1991 in making orders where the boundary is defined as being the middle line of a creek was confirmed by the Supreme Court in Erratt v Local Land Board Armidale [2008] NSWSC 959 at paragraph [14]. 2. Each party asserted there was an agreement reached between the parties at an earlier point in time as to the location of the fence. 3. The applicant says that the fence should be constructed along the line or close to the line of a previously existing fence which the applicant said constituted the "historic boundary" being the line shown in black on Annexure A to the applicant's submissions dated 13 May 2015. In the alternative, the boundary fence should be located along the line shown in red on Annexure B to those submissions. 4. On the other hand, the respondent says that the fence should be constructed along the top of the bank of Little Oaky Creek in the position of the black line marked on Annexure A to the respondent's submissions dated 13 May 2015. In this regard the respondent says he has already fenced that section of the fence line shown on his Annexure A being the eastern end of the creek and that the applicant should fence the western section on her side of the creek.