Dispute between Auckland neighbours over the state of their boundary fence and construction of a replacement led to more than a war of words; police were called more than once to cool tempers. They ended up in court arguing over compliance with Fencing Act notice requirements.
The Fencing Act general rule is that neighbours are expected to agree over both the form of any boundary fence and how costs are to be split. Most neighbours do.
When neighbours cannot agree, the Act has a formal procedure for notices and cross-notices, setting out their respective proposals. In the absence of any agreement, a default rule apples; if there is no response within twenty-one days of the last issued notice or cross-notice, then this last iteration is deemed to be accepted requiring each neighbour pay half the notified construction cost.
Auckland neighbours wound up in court arguing over what amounted to a valid cross-notice.
The High Court was told Yuchen Jin’s property on Armstrong Farm Drive, East Tamaki Heights, adjoins the Narayans.
When constructing a new home, the Narayans raised concerns about stability of an existing retaining wall on the Jin boundary. Neighbourly relations did not get off to a good start with Mr Jin alleging Narayans’ construction was causing damage.
He demanded the Narayans make good the alleged damage; they countered, saying Mr Yin caused the damage.
Subsequent to this December 2022 exchange, site meetings by the two neighbours, with building experts in attendance, saw no concluded agreement.
In May 2023, the Narayans had their lawyer send a Fencing Act notice to Mr Yin. It referred to their previous December exchange and then set out in detail two options for a replacement boundary fence, both fully costed. Mr Yin was invited to choose one of the two options.
One month later, the Narayans advised Mr Jin they were proceeding with the cheaper of the two, saying they had not heard back from him. He subsequently refused to pay half the cost: some $10,200.
When sued, Mr Jin claimed he had responded by email within a week to the Narayans’ May 2023 Fencing Act notice, objecting to their proposals and suggesting a fencing upgrade would suffice at a cost of $4000. The Narayans denied ever receiving such an email.
Justice O’Gorman ruled that even if this email had been received by the Narayans, it did not comply with Fencing Act formalities for a cross-notice.
This meant the initial May 2023 proposal was deemed to have been accepted. Mr Jin was liable to pay his half share of $10,200.
Fencing Act procedures are intended to ensure court involvement is minimised as far as possible, Justice O’Gorman said. Failure to issue a proper cross-notice results in deemed acceptance of an earlier Fencing Act proposal. This is intended to provide certainty about work to be done and how payment is to be shared.
The Narayans’ May 2023 Fencing Act notice was valid, despite earlier negotiations remaining unresolved. A new Fencing Act notice offering a new proposal can be issued at any time, Justice O’Gorman ruled. There is no requirement to wait out stalled negotiations or even wait for the twenty-one day period to expire on an earlier proposal, she said.
Jin v. Narayan – High Court (12.07.24)
24.173