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本帖最后由 Jasmin365 于 2021-3-23 18:30 编辑
筒子们，我快晕倒了，上次以为是最后一封律师信，没想到律师说收到他们的回信，现在还得给他们回一下。
与律师过招，邻居的第三封回信。我感觉这厮要么是请教过别人了，这次说话收敛不少。不过我心里嘀咕，这厮在搞拖延战术，逼得我们律师回他信，这样下去岂不是没完没了了。
We refer to your letter of ....
Paragraphs 2 to 5 overlook basic law, which states that statute law overrides the common law of nuisance and that section 6 of the Dividing Fences Act provides exhaustive principles for determining when a neighbour has to pay to construct/restore/repair a dividing fence. Our letters have referred you to subsection (2) "This section applies whether or not a dividing fence already separates the adjoining lands" and to the definition in section 3 of "fencing work" which is "construction, replacement, repair or maintenance of the whole or part of a dividing fence". The reasoning in these four paragraphs is inconsistent with these provisions. There is no legal basis for claiming that a neighbour has to construct/restore/repair a dividing fence because an old dividing fence has been removed to control vegetation growth.
Paragraph 3 is misleading. The question of whether our brushwood fence is an adequate dividing fence under the Dividing Fences Act is relevant to determining whether there is any legal obligation under section 6 of the Act to construct/restore/repair another dividing fence, for any reason. You have stated that your client wishes to retain the existing wooden fence for continuity reasons within her own garden. She may do that at her own expense, but such a preference is not a valid reason under the Act to make us construct/restore/repair a dividing fence to this end. Your letter does not dispute the principled application of the Dividing Fences Act as explained in our last letter, implying tacit agreement as to how the Act will apply.
Nevertheless, your letter threatens to make us pay your costs. This appears contrary to the intention of Rule 3.7(2) of the L&E Court Rules 2007 which prevents a Court order for costs unless it is "fair and reasonable in the circumstances". Given that we have offered to settle this matter since being approached by your clients, and that the issue of the restoration of the old wooden fence is a minor issue in this matter, we would welcome your clarification of:
a) the legal basis of the proposition in your letter that the law of nuisance would override the Dividing Fences Act in this case;
b) the circumstances justifying an order for costs for your clients.
our independent, competent and diligent assessment of this issue will assist negotiation.
Paragraph 5 is not agreed for reasons stated in our last letter. Whether a neighbour can be required to pay to construct/restore/repair a dividing fence is determined under section 6 of the Dividing Fences Act. Under the Act, constructing/restoring/repairing a fence alongside an existing, superior fence ten centimetres inside the boundary will be seen to create a vermin/weed trap; a likelihood that your client has admitted. The brushwood fence is perfectly functional as a dividing fence, whether or not another fence runs alongside it.
Your client can only point to her preference to restore the old wooden fence because it was there first, but the Dividing Fences Act has done away with neighbours having to engage in unproductive retro analysis of the history of their fencing. Further, your clients for many years covered the wooden fence with an old weatherboard type structure so that they could not see the wooden fence. Only when the weatherboard blew down in strong winds about two years ago did they complain about the state of the wooden fence. This indicates that they do not place value on that fence.
Crucially, had your clients been diligent and informed us many years ago when bamboo first started to grow on the boundary, before any alleged damage occurred to the old wooden fence, we could have put a stop to any root incursion then. Instead, your clients' tardy attention to the boundary over many years, exacerbated by their refusal to respond to our offer for 17 months, undermines any claim regarding the significance in this matter of the old fence. Why should we be held liable for this negligence regarding an extremely prolonged lapse of time, during which of course the bamboo root growth continued?
Indeed, this same tardiness makes our offer to get rid of existing roots on your client's side, generous, given the fact that the root incursion could have been stopped much more easily at the start of its growth.
The undertaking sought in paragraph 6 is not agreed for reasons stated in our previous letter.
Regarding paragraph 8, palm trees are not to be pruned in summer to avoid sun damage and we will not risk damaging these trees even if your client threatens to make us pay your costs. We·have employed professional pruners in the past and it has always been our intention to do so again in the coming weeks.
Once this matter settles, we will search for a contractor to put into effect the terms of our offer, and we are willing to inform your client of this, as requested.
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律师说，要回信，草拟如下，我真担心这样下去猴年马月啊。
As explained to you in our 8 March letter, the question as to whether your brushwood fence would be regarded as an adequate dividing fence for the purposes of the Dividing Fences Act is not relevant to the matter at hand. Removal and reinstatement of the existing fence is only an issue because that is your preferred method of treating and containing your invading bamboo. We have explained that our client will only consent to that approach if you agree to reinstate the fence. This is a straightforward and reasonable condition in circumstances where the restricted access from your side of the boundary is a problem of your own making. You have the option of addressing the problem from your side of the boundary and if you were to do so, you would not have to confront the requirement to remove and replace the existing fence.
As explained in our 3 February letter, our client’s principal cause of action is under the Trees (Disputes Between Neighbours) Act 2006. The common law of nuisance has some relevance. We do not seek any remedy under the Dividing Fences Act.
Your observations that earlier action to contain your bamboo could have been taken is telling. The destructive and invasive growth was foreseeable and should have been addressed at the time of planting. It is unfortunate that the method and location of planting and construction of your brush fence makes in impractical to remove the invading growth and install a root barrier from your side of the boundary but they are circumstances you have created. They are not in any way attributable to our client. Our client has raised the bamboo problem as soon as it became apparent. As advised, our client is content for the problem to be addressed via access from within her land and temporary removal of the existing fence but only on the basis that it is restored. By any objective measure this not an unreasonable position for our client to take.
The Court’s power to order you to pay our client’s legal costs will be enlivened when it is shown that you have taken an unreasonable position in refusing to reinstate the fence. In our view that is an inevitable outcome. Such costs are likely to be many times the cost of restoring the fence.
Please explain the ‘sun damage’ issue presented by pruning the palm trees to remove the fronds at risk of falling into our client’s property? If it is the case that the trees cannot be regularly pruned in order to eliminate the risk of fronds falling into our client’s property then perhaps the trees should be removed altogether. |
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我谈澳洲从军（新加面试情况） (2009-1-9) pal2002 
楼主:Jasmin365
发表于 2021-3-12 14:43
