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Fencing Adelaide

Guide 5 of 7 · The court exit, off rows 1 and 2

Guide 5 of 7

A fence dispute in Adelaide goes to the court the Act names

Where the count cannot settle a fence, the Act names the place that can: the court, which the Act defines as the Magistrates Court. Any person affected by a difference or dispute about fencing work, or about a liability under the Act, may apply to it for a determination, and the court may decide the matter as it considers just.

General information about South Australia’s fencing law, not legal advice about your fence.

  1. The notice A notice in Form 1 or Form 2 starts the Act's machinery. Form 1 must state six things (s 5(2)).
  2. Their 30 days The Magistrates Court, to which a fencing dispute may be taken (s 12)Thirty days from service. No objection served in them, and the Act deems agreement (s 7).
  3. Your 30 days, from C C+1C+30 The Magistrates Court, to which a fencing dispute may be taken (s 12)From C, the day a cross-notice is served: the proponent's thirty days to object to a counter-proposal (s 6(3)).
  4. 28 days to start E+1 Twenty-eight days from the day the proponent may proceed, and the last two days of the thirty are drawn empty: miss the twenty-eight, or any longer period the parties agree or the court fixes, and the adjoining owner may start (s 8(3)).
  5. 2 days to enter W At least two days before the work day W: notice in writing before the land is entered, except in an emergency (s 18(2)).
  6. Four monthsa different scale Four months, or another period agreed or ordered. Past it the part of the agreement still to be performed lapses (s 8(5), (6)).
  7. No count Damaged or destroyed, with an urgent need to repair or restore: the work may be done without notice, and no count runs (s 16(1)).

Every row of the count opens a guide. Each row is a section of the Fences Act 1975 (SA), named on the row, and the columns are days, read left to right; a hatched cell is drawn empty on purpose.

  1. 0 The noticeWhat the notice must say Six cells for the six things the form must state (s 5(2))

    Six things on the form: length and position, nature, a cost estimate, the amount sought, any compensation, the contractor (s 5(2)).
    Fences Act 1975 (SA), s 5(2)

  2. 30 Their 30 daysAnswering a notice Thirty lit days, from service to the end of the count (s 8(1)(a))

    Thirty days from the day the notice is served. Silence at the end of them is agreement (s 7).
    Fences Act 1975 (SA), s 8(1)(a)

  3. 30 Your 30 days, from CAnswering a notice Thirty lit days, counted from C, the day a cross-notice is served (s 6(3))

    From C, the day a cross-notice is served: the proponent's thirty days to object to a counter-proposal (s 6(3)).
    Fences Act 1975 (SA), s 6(3)

  4. The Magistrates Court, to which a fencing dispute may be taken (s 12)

    A difference about fencing work may be taken to the Magistrates Court, the court the Act names (s 12).
    Fences Act 1975 (SA), s 12

  5. 28 28 days to startStarting, and stalling Twenty-eight lit days, and two cells drawn empty (s 8(3))

    Twenty-eight days to begin, or any longer period the parties agree or the court fixes, counted from the day the proponent may proceed; two cells are drawn empty beside them (s 8(3)).
    Fences Act 1975 (SA), s 8(3)

  6. 2 2 days to enterStarting, and stalling Two lit cells before the work day W (s 18(2))

    At least two days before the work day W: notice in writing before the land is entered, except in an emergency (s 18(2)).
    Fences Act 1975 (SA), s 18(2)

  7. 4 Four monthsStarting, and stalling Four month bars, on their own scale (s 8(6))

    Four months, unless another period is agreed or ordered, after which the unperformed part of the agreement lapses (s 8(5), (6)).
    Fences Act 1975 (SA), s 8(6)

  8. none No countAfter a storm One marked day, and no count lit beside it (s 16(1))

    Damaged or destroyed, with an urgent need to repair or restore: the work may be done without notice, and no count runs (s 16(1)).
    Fences Act 1975 (SA), s 16(1)

  • CC, the day a cross-notice is served. The adjoining owner may serve it within thirty days after the notice was served (s 6(1)), and the proponent's own thirty days run from C (s 6(3)).
  • EE, the day the proponent becomes entitled to proceed. The twenty-eight days to start are counted from it (s 8(1), (3)).
  • WW, the day the land is entered for the fencing work. The notice in writing is served at least two days before it (s 18(2)).

Who can bring a matter, and when

Section 12(1) is wide: any person affected by a difference or dispute in relation to fencing work, or any liability arising under the Act, may apply to the court for a determination. The Law Handbook's disputes chapter puts the same door in one line: where the two owners cannot agree on any part of the fencing work, either of them can ask the Magistrates Court for an order. The chapter goes further in another place and says an objection to a proposal should go to mediation or to the court even where one neighbour has offered to pay the whole cost.

What the court can decide

Section 12(2) follows subsection (1) with the court's powers. Its opening words are that the court may determine the matter in such manner as it considers just, and then it lists what it may do:

  • (a)

    a finding, determination or order about the erection of a fence, the nature of the fence to be erected, the line it is to take, and any compensation for loss of occupation where a fence is put up away from the boundary of contiguous land

  • (b)

    a finding, determination or order about replacement, repair or maintenance work on a dividing fence

  • (c)

    the person or persons who are to perform the fencing work, and the part each is to perform where different people are to do it

  • (d)

    the re-opening and correction or variation of any agreement under the Act, including an agreement deemed to have been made under section 7, on the terms the court considers just

  • (e)

    the reconsideration and variation, on terms the court considers just, of an order under section 9 or section 10

  • (f)

    the time at which fencing work is to be performed and the manner of its performance

  • (g)

    any order necessary or expedient for entry upon, or access to, land for the purposes of performing fencing work

  • (h)

    the removal of a fence, or part of one, not erected on the proper boundary

  • (i)

    the cost of the fencing work, and the persons by whom and the proportions in which it is to be borne

  • (j)

    any order or direction necessary or expedient to overcome difficulties found during the progress of fencing work

  • (k)

    compensation for any damage payable under the Act, or any other Act or law, and payment of it

  • (l)

    any order for costs the court considers just

Three more subsections fill the edges. The court may extend any limitation of time the Act prescribes, whether or not the time has already expired. An owner who claims to be owed an amount for fencing work may apply for an order for payment of it, and the court may order the person liable to pay. And any person who is liable under the Act to either adjoining owner in respect of the work is entitled to appear in the proceedings.

The same powers in the Law Handbook's words

The Law Handbook describes section 12 as giving the court extensive powers, and its summary covers whether a fence goes up, its type and location, who does the work, when and how, how the cost is shared, and access to the neighbouring land.

The court's own starting points

On the fence itself, the Law Handbook says the court is unlikely to stop a particular fence going up unless a covenant on the title prohibits that type of fence. On the money, the court assumes an equal benefit to each side from the fence, but where the proof shows the greater benefit sitting with one neighbour, that person can be ordered to pay more, or even the whole cost. Where the amount awarded is beyond an owner's means, the court can allow it to be paid by instalments. And where the adjoining owner cannot be found at all, the court can make its order in that person's absence, which the chapter ties to section 9 of the Act.

How a dispute starts

The Law Handbook names the form: a Form 2A originating application under the Fences Act, with a supporting affidavit. All notices and correspondence are to be attached to the forms, and the original is to be kept where the affidavit is filed through the CourtSA portal, which the chapter ties to rule 31.10 of the Uniform Civil Rules 2020 (SA).

The Courts Administration Authority's own help page carries the step in its own sequence, and it is the page to read for the mechanics. It says a fencing dispute is lodged as an originating application under the Fences Act, that a fee is paid for lodging the form by credit or debit card, and that the lodger sets out the orders wanted from the court, naming any proposed fencing work and any sum of money the respondent should be ordered to pay. It adds a precondition of its own for money claims: an owner who wants contribution towards erecting a new fence, or towards work on an existing one, has to have served a Form 1 or a Form 2 notice before lodging the dispute.

The same page sets the court's setting for these applications. It describes an application under the Act as a minor statutory proceeding, so the minor civil rules and their costs scales generally apply, and a lawyer is generally not able to represent a party at the trial, subject to some exceptions. One of those exceptions is the election the page describes: where the claim, or the order for work sought, is for more than $12,000, either party may choose at the first directions hearing that the minor civil rules not apply. If that election is made, each side can have a lawyer at the trial, and a higher costs scale generally applies. The Law Handbook states the same representation rule from its side: the matter is generally heard in the Minor Civil Claims Division, where each party speaks for themselves unless both agree to have lawyers present, citing section 38(4) of the Magistrates Court Act 1991 (SA).

Which day of which row

Read back against the count, the court steps do not have their own clock; they borrow the rows'. The first is the precondition the Courts Administration Authority's page sets: to have the adjoining owner contribute, you must serve a Form 1 or Form 2 notice, which is row 0, before you lodge a fencing dispute. The Act also has routes that do not start with that notice: an urgent repair to a damaged or destroyed fence, whose share may be recovered without notice (s 16(1)), and an application to the court where the adjoining owner's identity or whereabouts is not found after reasonable inquiry (s 9(1)(b)) or there is no adjoining owner (s 10). The exit itself leaves rows 1 and 2.

  1. Row 0, day 0

    The notice is served. On the Courts Administration Authority's page, this is the step to take before lodging a fencing dispute for a contribution.

  2. Rows 1 and 2, days 1 to 30

    A difference or dispute about the proposals is what a person affected brings to the court.

  3. Any time after

    An application may also ask the court to extend a limitation of time set by the Act, whether or not it has expired.

  4. After a decision

    Where the fencing work is carried out substantially in conformity with the agreement or the court's order, the court hearing any later proceeding may treat the parties' rights and liabilities as if the work had conformed with it, subject to any adjustment it orders.

One limit is stated from the other side, in section 23(4): where the matter is a minor civil action, the court may not use any discretionary power it has to disregard a requirement or provision of the Act, or to give a special form of relief, where that power would come only from the minor civil actions provisions of the Magistrates Court Act 1991.

Where the fee is stated

The current amount of the lodgement fee is the court's to state, and the Courts Administration Authority's help page is where it is paid and stated; what this guide sets out is the application, the sequence and the court's powers. The other figures on this page are the $12,000 election line above, and the periods the Act counts, which the count's own rows carry.

Three guides carry the count to this point. Answering a notice covers the thirty days a difference grows in. Who pays, and how much covers the adequate fence and the shares. Starting, and stalling covers the twenty-eight days and the four months the court may extend.