Drafting Memorandum For Residential Purpose

Running head: DRAFTING
DRAFTING
Name of the student
Name of the university
Author note

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Memorandum
To: Marisa Pavlovich
From: Mr Abdul Al-Naser
Re: fence dispute
Summary
Mr Al Naser is the occupier of the property for residential purpose, which is located at 11
Rainbow Gum Way, Lawson Act 2617. Mr Rizo and Ms Pavlovich is the combined occupier and
also the owner of the residential property that is adjoining to the defendant property, which is
situated at 13 rainbow Gum Way, Lawson Act 2617. The two claims that are bought against the
defendant involves dispute relating to continuing boundary fencing in between the contesting
parties. In addition to that, another claim involves excavation work that is ordered by the
defendant in the case on the land that causes collapsing part of the land at 13 with the joint
boundary. In the case of Plauchak vs. Boling, 439 permit plaintiff out of the possession for
maintaining action to the quiet title is unacceptable as because it creates enlarging the right of
plaintiff and also exceed jurisdiction of court to proceed. In the case of White vs. Young the
question that arise whether court propose to perpetuate act of permitting party who ic possession
of land to initiate proceeding of quiet title.
Legal Issues
The dispute relating to fencing is determined usually by The Common Boundary Act,
1981 and Court Procedures Rules, 2006. Under the scope of the Said Act, if the fence
necessitates but deficit relevant building approvals and planning then, the complaint can be

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lodged to Act planning and Land Authority. The fence prior to construction requires approval for
development if it is more than 2.3 metres in elevation are progress towards building line and also
require approval for building if it is more than 1.8 metres high. According to the Said Act, the
owners of the adjoining property are authorized to a fair demarcating fence that is constructed in
between them. Thus in considering what is rationale rest on the conditions and circumstances of
the fence and also it is surrounding. It is not sufficient that fence that is constructed by one party
is steady and devoid of the peril of an instant breakdown. The standard and style of construction
its consistency and appearance with any other fences in that area is the matter of consideration.
The claim of the plaintiff
The claim that is raised by the plaintiff against the defendant in the instant case is fence
dispute and also the excavation work that is organized by defendant cause subsidence of land
portion at 13 together with joint boundary.
The counterclaim of the defendant
The fence which was the subject matter of dispute constructed in June 2018 however
after the construction of the same the following issues cropped out which is mentioned
hereunder:
1. It is alleged by the defendant that the fence was not constructed on the surveyed
boundary, which is required for the valid construction in compliance to The Common
Boundaries Act, 1981. The misalignment that occurred due to building it out of surveyed
area cause major issue as retaining fence is required to construct on the side of the
boundary of the defendant and also require to be straight.

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2. The defendant further alleged that Mr Pavlovich who is the plaintiff, in this case, asked
him for half of the expense of wall but he did not agree to pay the same as the same was
constructed against his approval and not build in accordance to agreed terms. It was
further contended by the defendant that the said act was caused by the plaintiff with the
intention of grabbing more property from him. Moreover, the plaintiff intimidates him to
sue for the unpaid amount.
3. That an excavation project was carried out in December 2018 and the subcontractor
engaged for performing the same-named Bob Carter. Therefore for the purpose of
constructing the excavator require to cut to the depth of 3.95 metres with the land of 50
cms of the joint boundary. As the work of the excavator proceeds the middle portion of
the joint fence, which is located on 13 started to collapse and slide. Consequently, it
causes a decent hole that is positioned in 13. The fence collapsed and came in sections,
and the temporary fence was constructed, which is in the place.
4. The defendant also arranges ground and geographical engineer named Felicity Sternberg,
who inspect on what to adopt for resolving the issue. The contractor who was appointed
by the defendant is a well qualified person; however, it is claimed by the plaintiff that the
contractor who was appointed was not suitable, which is absolutely false and concocted.
5. It is contended that both the plaintiffs Mr Rizo and Mr Pavlovich amplify the damage to
the property. It is further stated by Mr Sternberg that the slippage that caused did not
impact adversely to the house or pool and the claim of the plaintiff in this regard is
absolutely baseless and the same is liable to be dismissed. The amount claimed by the
defendant due to the harm incurred is assessed at the rate of $15 per year.

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6. The problem that is caused by excavation had been resolved by the plaintiff, and after
that, the defendant is no further liability to the plaintiff for land slippage. The plaintiff
asks him to reconstruct the fence, but the same is intended to make the life of the plaintiff
harder and tough.
7. The relationship between both the parties get complicated and sour after plaintiff did
unlawful act to harass them and which also cause a nuisance. The defendant also made
complained to the police for the wrongful, and the copy of the complaint is attached
herewith along with photos and emails in support of the claim of the defendant.
8. It is required by the Common Boundary Act, 1981 to construct a fence within surveyed
boundary; nevertheless, the non-compliance of the same lead to invalid construction. The
plaintiff, in this case, did not act in the obedience of law that regulating the construction
of structures. Therefore the claim made by the plaintiff is not maintainable in law and the
same is liable to be dismissed as the plaintiff did not fulfil the basic requirements that are
necessary for the construction of the fence.
9. The common Boundary Act, 1981 necessitates the neighbours both who are sharing
common fence for boundary must have opportunity to make discussion relating to repair
or replacement of the fence.
10. Therefore it is put forward that the litigation is not held to be sustainable in the eyes of
the law or in facts. Thus the same is entitle to get dismissed along with expense for
causing mental agony and harassment to the defendant.
11. The allegation that is stated in the plaint are fictitious, false and also self-serving and
beside it is also impermissible and untenable in accordance with the law.

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12. The defendant in the case refutes the pleadings that bought against him and thus the
plaintiff is called for legal and strict proof for the same along with documentary evidence
that is authenticated if there exist any.
13. The suit, therefore, is not held to be made with bonafide intention, and there exists no
cause of action for filing the same by the plaintiff. The plaintiff files the same with the
ulterior intention to attain unlawful gain by adopting the unlawful method.
14. Therefore the defendant absolutely denies the claim that is contended by the plaintiff and
furthermore claims by means of this counterclaim cost as the means of damage of for
causing unnecessary harassment to him by the filing of the false suit and also by causing
disturbance to the defendant by playing loud music.

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Bibliography
Books & Journals
Truckenbrodt, Hubert. "Intonation phrases and speech acts." (2015) Parenthesis and ellipsis:
Cross-linguistic and theoretical perspectives: 301-349.
Beal, Lisa M., et al. "Capturing the transport variability of a western boundary jet: Results from
the Agulhas Current Time-Series Experiment (ACT)." (2015) Journal of Physical
Oceanography 45.5: 1302-1324.
Dunn, James DG. “The Acts of the Apostles”. (Wm. B. Eerdmans Publishing, 2016).
Hancock, Craig Ross. "Own a mechanism for solving disputes over retaining walls near property
boundaries." (2015).
Legislations
The Common Boundary Act, 1981
Court Procedures Rules, 2006