Rose v Graham & Wyn [2015] NSWCATCD 92

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rose v Graham & Wyn [2015] NSWCATCD 92 Hearing dates: 14 July 2015 Decision date: 05 August 2015 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: 1 The common boundary line between the adjoining lands is to be determined by a registered surveyor and pegged at the applicants' sole expense. 2 16 metres of the existing dividing fence between the applicants' and the respondents' 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; 3 A hardwood lapped paling fixed from the respondents side of the dividing fence 1.8 metres high 16 metre long is to be erected on hardwood rails and supported by galvanised steel posts core drilled (if necessary) and concreted into the ground to a depth of at least 60cm on the common boundary line between the applicant's and the respondents' adjoining lands; 4 The height of the fence is to be measured from the ground level (existing) of the respondent's land; 5 If it holds a current contractors license to carry out fencing work, Jacks Timber & Fencing Wholesalers is to carry out the fencing work in accordance with its quote numbered 31919. 6 If Jacks Timber & Fencing Wholesalers is not established by the applicants to be licensed to carry out fencing work within 2 weeks of the date of these orders, then: Both the applicants and the respondents are to obtain a quote for the fencing work specified in these orders within 4 weeks of the date of these orders. The applicants and the respondents are to agree on the quote to be accepted. If the applicants and the respondents cannot agree on the quote to be accepted within 6 weeks from the date of these orders, then the quotes are to be referred to the Tribunal so that the Tribunal will choose which contractor is to carry out the fencing work. In making its decision the Tribunal will not accept any further submission from the parties as to the suitability of the quote. The quote to be accepted by order of the Tribunal may not necessarily be the lowest or least costly quote; Acceptance of the quote by the Tribunal will be determined on the basis of compliance with the scope of works as set out in these orders and the license status of the fencing contractor submitting the quote; and, In the absence of either party submitting a quote within 6 weeks of the date of these orders, then the only quote submitted may be accepted by the Tribunal if it otherwise complies with these orders. 7 The applicants must pay the whole cost of the fencing work to the Fencing Contractor and will be the only party to give instructions to the Fencing Contractor in relation to the carrying out of the fencing work. 8 Subject to availability of the fencing contractor, the fencing work is to be completed within three (3) months of the date of these orders. 9 The fencing work is to be carried out in a good and workmanlike manner using new materials. 10 The fencing contractor is to be paid on the day the fencing work is completed; 11 The respondents are to pay to the applicant their contribution, being $1,124.00 if the fencing works are carried out by Jacks Timber & Fencing Wholesalers in accordance with its quote numbered 31919, or one half of the actual cost of the fencing work if the fencing work is carried out by other than Jacks Timber & Fencing Wholesalers, within seven (7) days of completion of the fencing work, without deduction or allowance. Catchwords: Sufficient fence; licensed contractor; dividing fence as an exempt and complying development Legislation Cited: Dividing Fences Act 1991 Home Building Act 1989 Home Building Regulation 2014 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Cases Cited: Alwiah v Watts and anor [2004] NSWSC 948 Brown v Doyle [2012] NSWSC 1269 Larney v Johannson [2012] NSWSC 1297 Category: Principal judgment Parties: David Rose and Anna Rose (applicants) Andrew Graham and Trish Wyn (respondents) Representation: Applicant: Litigants in person Respondent: Litigants in person File Number(s): COM 15/10357 Publication restriction: Unrestricted