Solicitor Sent This Sentence, Can Someone Help to Understand?

easoweno on 01/07/2022 - 17:14
Last edited 01/07/2022 - 19:07

We may take our neighbour to tribunal (to settle some fencing cost issues, actually nothing to argue about, just want to go 50/50 and it's reasonable and I dont think he has any ground to win), and we have received the below from his solicitor.

"I advise in the event you commence your foreshadowed application with NCAT, I suspect I will receive instructions to defend such application."

What does "Suspect" mean here? Partner reckons that means solicitor "beleives" that he will act for neighbour, but my understanding is he "doesn't think and doubt" that he will act on his behalf.

Can someone shed some lights?

Also if anyone can advise…. if I do lose the case, will I be asked to pay for his solicitor's cost? I don't think I will lose but just want to know all the possible consequences first.

Home & Garden

Comments

      • WhyAmICommenting on 02/07/2022 - 10:45
        +1

        Tbf, it was a little unclear at first who was who.

        • ozbjunkie on 02/07/2022 - 11:38
          +1

          That's three strikes, you're out lawyer. Stop defending him…

          Oh well it was pretty confusing who was the client and laywer

  • Eatslikeacat on 01/07/2022 - 19:13
    +16

    The solicitor hasn't received instructions so says that they suspect that they will be instructed to defend the NCAT application. Dividing fences cases are managed through NCAT's Consumer and Commercial Division. In the Consumer and Commercial Division solicitors are not allowed to represent a party unless NCAT gives the solicitor permission See: https://ncat.nsw.gov.au/content/dam/dcj/ctsd/ncat/documents/…

    Paragraph 11 of the document sets out the circumstances where permission will usually be given. If it doesn't fall in one of those categories it will be unlikely that the solicitor will be allowed to represent the neighbour. The solicitor can write to you etc and assist the neighbour. However, the solicitor cannot appear for the neighbour at NCAT hearings and is not allowed to be recorded as legal representative.

    • easoweno on 01/07/2022 - 19:18
      +1

      Thank you so much for this, I wasn't aware. So what it means is that the solicitor can assist him to prepare paperpwork and appear on the day as a "friend" or "audience", but he cannot represent him to give evidence on the day, is that correct?

    • easoweno on 01/07/2022 - 19:20

      Would you happen to know that whether the other party can ask for compensation during the hearing, such as "stress", loss of sleep, loss of work etc etc?

      • anzacpaul on 03/07/2022 - 21:26

        For a dispute over a fence replacement? Not in Australia.

    • easoweno on 01/07/2022 - 19:25

      And now I am confused - surely his solicitor would know that this matter is under $30k and he cannot represent the neighbour? So why he still said that he will defend the application?

      • WhyAmICommenting on 02/07/2022 - 04:19
        +6

        It’s like poker. Just like poker- called a bluff.

      • Krankite on 02/07/2022 - 09:30
        +13

        The letter is deliberately vague, he has effectively said nothing. It's meant to intimidate you without actually committing to anything.

        • AlanJ on 03/07/2022 - 10:26

          Completely agree with both spillmill and Krankite. This is just a letter to make the rest of your day unpleasant. There are people like that everywhere. And, unfortunately, there are always neighbours for whom spoiling your day is the major reason for getting up in the morning. Two people like this are bound to find each other — a marriage made in Heaven — but they rarely have anything to be proud of at the end of the day (I loved your neighbour's comment about him being used to people not liking him…. you see, to his way of thinking that makes him a success!) Don't let them get to you. Your request is a reasonable one and NCAT will see that straight away.

      • gromit on 03/07/2022 - 15:53
        +1

        What you wrote in your post does not say he will defend the matter. It says he may be asked too, upon which time he would have to tell him that he can't actually do it. As others have said, it is written to be intentionally vague in the hope to intimidate or scare you away from taking action.

  • FairlyHappy on 01/07/2022 - 19:27
    +6

    Solicitor has had a pre-litigation conversation with their potential client.

    That's it. Really, it's that simple.

    Of course they must have been instructed to send that letter to you…

    • easoweno on 01/07/2022 - 19:43
      +2

      you mean he has spoken to his client and sent that letter to me? The rest of his letter is saying "I am not in a position to obtain my client's instruction today… I will seek those instructions and reply to you by Monday".

      • LiteDough on 01/07/2022 - 20:13
        +5

        He spoke to the client and sent that letter to you.

        If you proceed further, he will get further instructions from his client about ncat…or about dropping this and calling it a day.

        • WhyAmICommenting on 02/07/2022 - 04:20
          +5

          Add he will likely tell his client he doesn’t have a post to lean on.

          • pjetson on 02/07/2022 - 11:18

            @WhyAmICommenting:

            doesn’t have a post to lean on

            If it's a fence post, which the OP says is falling apart, that makes sense.

  • Eatslikeacat on 01/07/2022 - 19:48
    +13

    Unless NCAT gives permission for the solicitor to represent the neighbour then the solicitor's only option is to be entirely in the background. The solicitor can sit in the audience but is not permitted to stand there and speak for the neighbour.

    As the representation guidelines say a party is generally responsible for presenting their own case. NCAT is intended to be a cheap, just, and quick place to resolve disputes and for that reason legal representation and claiming legal costs is deliberately limited. Compensation for stress, loss of sleep, neighbour taking time off work to appear before NCAT are not things which can be claimed.

    In the Consumer and Commercial Division the losing party only pays the legal costs of the winning party in very limited circumstances See: https://www.ncat.nsw.gov.au/content/dam/dcj/ctsd/ncat/docume… If it does not fall under one of those limited circumstances then each party is expected to pay for their own costs.

    It is open to debate if the neighbour will be enthusiastic to pay for a solicitor to defend the case where the ability to claim legal costs from the losing side is very limited. It's an open debate if there are many solicitors who are willing to take on what is likely to be a very high workload low paying job.

    • easoweno on 01/07/2022 - 20:24

      @Eatslikeacat thanks so much. Why would it be a low paying job? Don't they charge hourly rate no matter what case?

      • Eatslikeacat on 01/07/2022 - 22:04
        +11

        Let's say the solicitor charges $500 an hour and it ends up costing the neighbour $25,000. Those are the costs between the neighbour and the solicitor known as party client costs. Party client costs are not normally recoverable by the winning party against the losing party. Normally only the costs directly related to the proceedings can be claimed and those are called party party costs. Where the solicitor is not given permission to represent the neighbour then there cannot be party party costs. On top of that in Consumer and Commercial Division the awarding of costs is set out in the guidelines that were referred to and are only available in those limited circumstances. The intention is for each neighbour to run their own case. The risk that the neighbour faces is that the legal fees the neighbour pays can be worse than the claim so it does not make financial sense at a certain point. I'm familiar with the situation as I've had to suffer through the NCAT process in the past. The solicitor saying that the solicitor suspects that they will be instructed to defend the matter if you file your application is really a non statement that's likely intended to rattle you. If the neighbour fights it then they'll fight it so who cares if they have a solicitor or not in the background. What you need to focus on are the merits of your claim and Ozbargain isn't the place for legal advice. You should read the NCAT website on dividing fences since it's a resource that explains the process very clearly. I've just been parroting what is on the NCAT website about the process.

        • easoweno on 02/07/2022 - 10:19
          +2

          Thank you very much. I learned a lot from you. Not trying to get legal advice but this is more than helpful.

  • Heaps for Cheaps on 01/07/2022 - 20:02
    +8

    Reply back…

    re: Suspection of instructions to defend such application

    Cool story, bro.

    Regards,
    easoweno

    • jamesorion on 01/07/2022 - 21:59
      +7

      Yeah, the letter only serves to try to scare OP out of taking it to NCAT by letting OP know that he has lawyered up. There is no other reason for them to contact OP, and unless the solicitor and neighbour are mates, I bet the neighbour paid for this poorly written letter to be sent to OP. I'd probably reply something similar to this or completely ignore it.

  • Richmond Tigers on 01/07/2022 - 20:22
    +2

    Build fence on your property, report neighbour for trespass anytime they touch the fence.

    • WhyAmICommenting on 02/07/2022 - 04:21

      Malicious compliance.

    • Krankite on 02/07/2022 - 09:34
      +1

      Also get a security camera for the existing fence, keep evidence of the neighbour saying it is in good condition and take them to court of they try and remove your fence.

      • WhyAmICommenting on 02/07/2022 - 10:48

        Funny idea, but I don’t think it will come to that. The fence should be on the boundary and half each unless someone wants to pay extra for a fancy one. This is the way.

  • Morien on 01/07/2022 - 20:42
    +1

    "I suspect (that)" vs "I am suspect (of)"

    Your partner has interpreted it as the former (which is what the original sentence means), while you have interpreted it at the latter.

    "I suspect that it will rain today" - You think it will.

    The lawyer anticipates that they shall be asked with defending the case.

  • [Deactivated] on 02/07/2022 - 01:00
    +5

    The neighbour has sought advice from solicitor
    Solicitor has probably instructed neighbour that defence of matter has poor commercial prospects.
    The neighbour has thus not instructed solicitor to defend the matter.
    The neighbour has instructed Solicitor (usually at solicitors recommendation = $$$) to send a letter to OP simply to advise OP that solicitor has been been advised of matter in the hope that this will dissuade OP's continuance of proceedings, or at least test OP's resolve and confidence of success, or that OP may make admissions or offers beneficial to client (neighbour).

    TLDR Solicitor: "let's send them a letter and see how they respond"

  • JH100 on 02/07/2022 - 01:06
    -3

    Why do you think the neighbour owes you for a fence s/he apparently doesn't want?

    • WhyAmICommenting on 02/07/2022 - 04:24

      It’s about what’s “reasonable” fencing between the two parties. That can be some kind of medieval fortification, a piece of cellophane, or nothing at all - if both neighbours agree. But since they don’t:

      NCAT will consider a “standard fence”, the neighbourhood standard, what was there prior and decide what is reasonable and hand down their decision on cost split to the each neighbour based on this.

      • JH100 on 02/07/2022 - 08:35
        -3

        I don't know, if I didn't want a fence and you did I might seek compensation for you truncating my sense of (sight) well-being, with a fence. To help me pay for the plants/shrubbery/gardening necessary to camouflage your fence. Cause it's not my fence, and I don't want one raised to block my view. :-)

        • whitelie on 02/07/2022 - 09:00
          +1

          No bueno, see #10 here.

          If there is say a Colourbond fence on the other boundaries of their property, then it would be fair to assume it would be classed as a
          "sufficient fence" to continue that on your boundary even if that means you lose your view.

        • 2esc on 02/07/2022 - 09:51
          +2

          Doesn't matter one bit if someone doesn't want a fence if it is in poor condition it's a 50/50 split.

        • HerpinDerp on 04/07/2022 - 11:33

          Do people seek compensation from you when you express your absolutely nonlogical dribble?

  • [Deactivated] on 02/07/2022 - 01:09
    +2

    Good neighbourly relationships have intrinsic value - can't your sort it out over a beer or tea and scones?

    • WhyAmICommenting on 02/07/2022 - 04:26
      +6

      Fencing often divides.

      • anzacpaul on 03/07/2022 - 21:29

        Underrated comment.

    • Spootage on 02/07/2022 - 09:13
      +1

      I couldn’t care less about my neighbours. Gimme that big fence to keep them out!

      • 2esc on 02/07/2022 - 09:59

        Agree 3 meters high with razor wire on top my preference.

        Went 50/50 with neighbour 1.8m high offered to pay the extra to go to 2.0m legally allowed here without permit. He then builds his backyard up by half a meter of soil to stop back yard holding water(couple inches of soil would have been enough) now we don't feel like we have any privacy.

        • WhyAmICommenting on 02/07/2022 - 10:50

          (profanity). Did he consult you as that would affect your drainage possibly?

          Have you started doing anything petty in return? Must be tempting…

    • Vote for Pedro on 02/07/2022 - 15:29
      +1

      Good fences make good neighbours

  • Vote for Pedro on 02/07/2022 - 02:55
    +6

    If you reply it will cost your neighbour a line item called “peruse correspondence - 15 minutes” and possibly a call client to seek instructions charge

    • WhyAmICommenting on 02/07/2022 - 04:27
      +7

      “I suspect I will see you at the NCAT hearing” does that work?

  • htc on 02/07/2022 - 07:29
    +1

    I almost read your title as you were sentenced by your solicitor.

  • Duckie2hh on 02/07/2022 - 08:38

    www dictionary.com

  • erasimos on 02/07/2022 - 08:42

    Chances are the solicitor knows their client is a nutter.
    Is the current fence is in reasonable condition or are you trying to massively change the type of fence?
    Are they going to be put in financial stress to pay for it?

    If this is the case prepare to make compromises. Send a letter to the lawyer putting your case.
    If it's not the case send the solicitor a letter stating such and let them advise their client.
    (not a lawyer)

    • easoweno on 02/07/2022 - 10:34
      +1

      No financial stress, otherwise how does he afford to hire a lawyer? I think his pride is playing up and wants to be in control of the situation. Spoke to him before and he said it's a matter of principle, he can't cry poor in front of tribunal.

      • AustriaBargain on 02/07/2022 - 11:11
        +4

        How about a photo of the current fence, now that you've got us all interested in this feud?

  • maximum on 02/07/2022 - 09:10
    +10

    I had a dispute before NCAT. My opposition "lawyered up" 3 letters (with very similar lawyer speak - designed to scare you and impress their uneducated client) and probably many meetings. He tried to claim the costs of $3500 in the hearing. The person hearing the case just said the beauty of NCAT is you don't need legal representation and denied any costs. Let him send you as many letters as he wants. My best piece of advice is stay calm and only talk when you need to. The case goes on the evidence - my opposition got emotional and angry but didn't have a leg to stand on. If you are in the right you will prevail.

    • GrueHunter on 02/07/2022 - 09:57
      +2

      If it's a fence and you're not claiming more than 50% of the price of a minimum fence (likely timber paling, maybe 1.2m high) then you'll rock it in, particularly if the existing fence is in disrepair.

      But for what it's worth, our neighbour's untrimmed trees destroyed our shared back fence (nothing at all on our side - it's an ActewAGL easement), decided they wanted to put up a massive Colourbond fence instead, and we still ended up on the hook for half.

    • easoweno on 02/07/2022 - 10:26

      Thank you. Is the $3500 he's trying to claim the legal cost? Also on day of hearing, is it just a quick 15 - 30 mins session? Or do you have the time to present your reasons for as long you want? Never done it before so want some insight.

      • WhyAmICommenting on 02/07/2022 - 10:52
        +1

        Check their website - the NCAT/ government one

      • maximum on 02/07/2022 - 11:29
        +6

        Mine was not a fence just a contractor who tried to get away with a shitty job. First ncat was 5 minutes then we were sent to negotiate - he wouldn't budge he asked for extension. 2nd one he didn't turn up. 3rd time was 15 min max - we had both submitted our files. Found in my favour within 5 min the rest of the time was him crying and asking for time to pay it off - which I agreed to.
        Funny thing is I was only withholding $3000 - of a $20000 job till he fixed his work - but he send a debt collection letter so I went to ncat to stop that and ended up getting $17000 cash back and not owing the $3000. He still owed his solicitor $3500 too.
        Stubborn people often don't think logically. After I got my last payment I fixed the job myself for the price of $100 of tools and 4 hours work.

        • Tsuivan on 04/07/2022 - 00:53

          Wow, what kind of job costs $20k from a contractor that you can DIY for $100?

          Unless you mean you were able to retain the material used for the shoddy job and DIYed a fix for it for $100, despite the full refund?

  • thedeep on 02/07/2022 - 09:27
    +2

    Is the new fence already up? If so, did you follow the procedure in the Dividing Fences Act (such as serving your neighbour with a Fencing Notice)? If you didn't you may not be entitled to anything. Unfortunately there are many reasons why it won't be 50/50, so don't assume the case will be clear cut or easy at the NCAT. The government website gives some FAQ (https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…) on the process, but it sounds like the neighbour wants to fight you and it may just end up being a stressful process for all involved. Don't know how much money is involved, but sometimes it is not worth it.

    • easoweno on 02/07/2022 - 10:29

      Not up yet, but I want it up asap.

  • GrueHunter on 02/07/2022 - 09:54
    +1

    What's unclear about "suspect", exactly?

    "I (have an idea or impression of the existence, presence, or truth) that I'll be instructed to defend this matter (without certain proof, because I have yet to be so instructed)."

    The italicised bits are literally the definition of "suspect".

    • easoweno on 02/07/2022 - 10:36
      +1

      I read it as he "doesn't think and doubt" that he will act on his behalf, but now I get it.

  • Robz on 02/07/2022 - 10:03

    This ALL depends on the state U live in. Quite clearly IN SA!! Have U sent a formal letter proforma to the neighbour. It is a fencing notice. BUT what is the condition of the existing fence If it is reasonable U pay all yourself Did U put 3 quotes to the neighbour. This is a small claims court issue. You pay a fee to the court get the paperwork fill it out properly & either get a court bailiff to serve notice or U do yourself. Scare mongering by neighbour of my lawyer said this or that. Like I said small claims court, no lawyers allowed & provide your side neighbour states his no defence & magistrate makes decision there & then When/if you win makesure ask for payment within say 3,4 6 weeks. NO LAWYERS are allowed to represent U. It is you V the neighbour. It is then up to the Judge & in my case the lazy judge just said settle between the 2 of you which was not going to happen therefore he said the fence was not a fence & threw my claim out.!!!! my only cost application to court & no more GOOD LUCK. Ignore all mail etc from neighbour EXCEPT what U give them or serve them

    • Spootage on 02/07/2022 - 10:11

      How was your fence not a fence?

  • AustriaBargain on 02/07/2022 - 11:09
    +1

    It means you've been warned that if you go ahead with this that you're in for a headache and your own legal fees. Whatever 50% of the cost of the cheapest common fence is better be worth all this for you, because it's clearly worth hiring a lawyer for your neighbour. If 50% of the cheapest common fence for your area is just a few hundred bucks then it might be easier to just pay for it yourself. You may want a nice luxury fence built but you'll never get 50% of that with his lawyer telling him what's what. The lawyer may not be allowed to speak for neighbour at NCAT, but the lawyer can tell him what to say. You'll never get one over your neighbour because if he's like most people who start down this path then he'll be willing to pay even more to frustrate you than pay whatever half the fence would have actually cost.

    • easoweno on 02/07/2022 - 15:55

      No, just a standard ordinary fence, nothing fancy. I am frustrated enough, going to NCAT paying $50 application fee and even if I dont get 50% of the cost back, but just to throw the order to his face and say "you can eat a d***" is well worth it. Excuse my french.

  • OzHunterNSW on 02/07/2022 - 11:26
    -1

    STOP STOP…… You can not be represented by a solicitor during an NCAT Tribunal.

    STOP STOP…. he is trying to scam you YOU YOU.

    Like you said, you only seek 50/50. You present your papers and seek the Member to make decision on what you present.

    The solicitor CAN NOT REPRESENT YOU….. do you understand.

    They are going to CHARGE YOU for "ADVICE" and this will be $2.500 upwards.

    DO IT YOURSELF.

    • Leanne59 on 02/07/2022 - 13:01
      +2

      What post are you responding to? He doesn't have a solicitor and I believe that the neighbour is just scamming and has an acquaintance that is a solicitor and got him to send the email/letter.

    • Spootage on 02/07/2022 - 14:56

      Two dollars fifty? Bargain!

  • Eatslikeacat on 02/07/2022 - 12:14
    +7

    The solicitor's letter is intended to scare you away from making an application where your case, from what you've said, is a good one.

    Option 1: Adopt a pooping cat and unleash it to terrorise your neighbour and drive them to move house.

    Option 2: Do your homework. Get 2-3 quotes. Take photos. Ask the contractor to say what fence is there currently, the condition that its in, whether it needs replacement or repair, how much it will cost to repair or replace it with a "sufficient fence". Nothing fancy, if you want fancy you have to pay for the fancy. The Dividing Fences Act only requires neighbours to share 50/50 for a sufficient fence. Points on what is sufficient can be found at: https://www.taylorandscott.com.au/dividing-fences/ Then serve a fencing notice. You cannot make an application to NCAT unless you have first served a fencing notice. The LawAccess NSW website gives you clear step by step instructions on how to proceed. Look at:

    https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…

    https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…

    https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…

    Once you have filed your application NCAT will send you and your neighbour a Notice of Conciliation and Hearing. That will provide a time and date for the hearing. It might or might be by video depending on changing COVID rules and NCAT will inform you about whether it'll be an in person or video hearing. At the hearing the NCAT Member will try to get the parties to talk to each other and to reach an agreement. If you cannot reach an agreement then the Member will not normally make a decision at that hearing. The Member will ask the parties how much time each of them needs to send their evidence to NCAT and each other. The Member will make orders providing the parties with a timetable. For example, you are given 4 weeks to send in your evidence to NCAT and to your neighbour, your neighbour has 4 weeks after that to send in their evidence to NCAT and to you. The time provided can be shorter or longer depending on how much time each party needs. The orders will usually include when you and your neighbour must send your submissions to NCAT (a summary of the arguments that you will make at the hearing). It will usually include the date for the actual hearing or the date can be provided later by NCAT. At the hearing both sides make their case. You go first then your neighbour goes second. The NCAT Member will give each side enough time to make their case. You won't be cut off at 10 or 15 minutes but there is only so much time that a person can waffle on for in a straight forward matter. NCAT often budgets about 1 hour for a simple case but if needs to go longer then it'll go longer. The Member will then make a decision or if the Member needs time to make a decision then the Member will send the decision after the hearing. NCAT is not a Court so you do not call the Member "your Honour". You can ask the Member on how they would like to be addressed and it's usually "Mr. Surname" "Ms. Surname" "Madam Surname".

    You've already been referred to the guidelines on legal representation and awarding of legal costs. Unless there are special circumstances each party is not allowed to be legally represented and each party is expected to bear their own legal costs. If your neighbour asks you if you will agree to them being legally represented your answer should be no.

    meow

    • easoweno on 02/07/2022 - 15:34

      Thanks again. I really hope I ca do option 1, but my son's allergic to cat hair, haha….

      Do you mean each party only have one chance to talk? Is there like a Q + A question afterwards like what's shown on tv dramas?

  • HelpMeiCantSee on 02/07/2022 - 13:21

    OP, Is it really worth degrading any possibility of relations with your neighbour over a fence? I don’t understand this attitude. I have always paid for fences I have deemed needing to be replaced, same thing in reverse too. People can’t always afford replacing a fence, if it’s important enough for you to take action on, you can pay?

    I mean, how expensive is your fence?

    • easoweno on 02/07/2022 - 14:17
      +1

      I think you miss the point here. He has the money and he can pay, rather he would prefer to lawyer up and fight to pay 50% of the cost, surely the lawyer will cost him a lot more. I would like to keep the peace but he doesn't think it's worthwhile. 50/50 is deemed fair by law, I didn't make it up. If he's in genuine financial hardship or we are good mates, no problem, but that's not the case.

      • HelpMeiCantSee on 02/07/2022 - 14:55

        I understand the principle, however is an acrimonious relationship worth $1000? Your point is about “rights” and “fair”. My point is about having to live there, you know that now every little thing that can be an issue will be right?

        • easoweno on 02/07/2022 - 15:12
          +2

          I didn't share the full story, there are many petty little things that have happened, and I just have accepted that you can't be friends with everyone, nor every neighbour you know. Some people just like troubles, court/tribunal is probably a good move to shut him up.

          • HelpMeiCantSee on 03/07/2022 - 09:32

            @easoweno: Fair enough, doesn’t seem worth it to me, but if it’s what you want, go for it I guess

            • CanadaAye on 03/07/2022 - 17:54

              @HelpMeiCantSee: Pretty sure he doesn't want it, the neighbour has forced him down this path through various interactions (from his perspective of course).

  • johno3456 on 02/07/2022 - 14:57

    Costs can be ordered if they use a lawyer.

    https://www.ncat.nsw.gov.au/ncat/how-ncat-works/after-the-he…

    I hope you checked the requirements below.

    https://www.lawaccess.nsw.gov.au/Pages/representing/lawassis…

    • easoweno on 02/07/2022 - 15:14

      Yes I have, thanks. It's standard fence as per the original fence, no upgrades. It's due for replacing due to it falling apart.

  • Aureus on 02/07/2022 - 15:12
    +1

    Show us a pic of the current fence. No way of knowing who the crazy one is without the pic.

    • easoweno on 02/07/2022 - 15:18
      +1

      I do not know how to post a photo here, I dont think I need to justify it either. If you believe a fence that's leaning 40 degrees one side here and there, rotten and some slabs missing is acceptable then tribunal is definitely the right place to fight it.

      • Aureus on 02/07/2022 - 15:42
        +2

        Fair enough. If it is leaning over 40 degrees at places you should have a pretty easy time at NCAT.

      • RADICALIST on 02/07/2022 - 15:53

        Wow, how can the neighbour not see that as a problem and needs replacement. Instead he rather lawyer up and pay more….are you and the neighbour enemies? hopefully he is your backyard neighbour and you don't ever see him

        • easoweno on 02/07/2022 - 15:56
          +1

          Side neighbour, share the whole left side of my house!! arrrrggggggggg!

      • Cheap Gamer on 02/07/2022 - 19:57

        Better or worse?
        https://www.shutterstock.com/image-photo/damaged-wooden-fenc…

        Is part of the fence leaning into your property? I'd treat it like an overhanging branch and cut it down.

        • easoweno on 02/07/2022 - 22:27
          +1

          Worse and leaning into my side with some pieces missing!!

          • Cheap Gamer on 02/07/2022 - 23:31
            +3

            @easoweno: Too easy mate. The fence is clearly a safety hazard and could fall on kids or pets. I'd say pulling it down is the responsible thing to do. I can't see any magistrate having a problem with that. Even better, ask the council for a demolition order.

  • mantichoral on 02/07/2022 - 17:07

    "foreshadowed" is very Australian term, but not one as widely used elsewhere. (unlike the uniquely Australian stoush over spruiking a rort, etc.) Its use in pseudo-legal language here is a little odd. But he couldn't say 'threatened', and escalate it, could he?

  • MontyMacaw on 02/07/2022 - 18:48
    +1

    Sounds like you neighbour is trying to dissuade you from doing some fence line work that they may have to pay towards and they figure sending a letter from their lawyer will have you running to the nearest online forum for some dumb advice. I’d just throw it in the trash where it belongs with a smug look on my face because they just spent a couple of hundred bucks to try and scare me. And didn’t.

    • easoweno on 02/07/2022 - 22:25
      +1

      hahaha, I DID run to the forum and asked questions, and I am so glad I did!! Partner was worried that maybe we should also engage a lawyer, but after seeing everyone's response he's happy to just go on our own.

  • greatlamp on 02/07/2022 - 19:58
    +3

    I suspect your neighbour believes that an expensive lawyer will scare you into not perusing the case at NCAT. This makes no sense, as it doesn't cost you anything to appear at NCAT, so you have nothing to lose.

    I also suspect your neighbour and their lawyer friend are egotistical (profanity).

    Fencing law is well established, it isn't based on case law, there is very clear black and white legislation in probably every LGA requiring fence costs to be split. You cannot lose this case unless you are asking for something unreasonable

  • Toph Beifong on 02/07/2022 - 22:22

    So basically, the email from the solicitor is pointless because we already know that this is what he is appointed to do….

  • erasimos on 03/07/2022 - 10:25
    +1

    Things only go to court if it's a last resort. Seek mediation or ask the solicitor to forward you the list of grievances if he gets briefed. By getting the solicitor to send a letter they let you correspond with their lawyer only which will start costing them a fortune as the law firm will charge them admin charges.

  • Magnastar on 03/07/2022 - 13:17
    +1

    I picture the conversation going like this

    Neighbour - Hello Solicitor, I read on your banner ad on Xvids that you offer high quality budget legal advice. My neighbour wants to claim half the cost of a boundary fence, but I didn’t want it and don’t want to pay. Can you help?

    Solicitor - Not really, you’ll probably have to pay half.

    Neighbour - Anything else we can do?

    Solicitor - I can send a Lionel Hutz quality letter and maybe they’ll panic and just cover the costs themselves.

    Neighbour - Do it.

    OP gets letter and freaks out and begins asking the internet for advice, and will probably still just cover the full cost themselves anyway.

    Neighbour saves many thousands.

    • easoweno on 03/07/2022 - 18:22

      hahaha, as if….

  • chriskq on 03/07/2022 - 13:52
    +1

    Has your neighbour said why he doesnt want to pay for a new fence?

    • easoweno on 03/07/2022 - 18:23

      He said to him it's not necessary and he's ok with the way it is.

  • dtc on 03/07/2022 - 15:47
    +2

    Ok, so I am a lawyer, yes really. This language is in every 2nd pre litigation letter. For everyone thinking its suspect, weird, bluffing (well it is a little bit), to charge the neighbour, its a friend of the lawyer - no, this is bog standard lawyer language. Is it normal language - no, but thats because normal people dont talk like lawyers. You dont talk like army officers, engineers, doctors or anyone who is in a specialty you are not in. Is that a failing of lawyers when dealing with people who are not lawyers - of course, but since most of us deal with other lawyers, we sometimes forget to speak in normal language.

    Do lawyers spend a lot of time thinking about fencing disputes, no. They will not spend 10 minutes coming up with a nice sentence, they will trot out the sentence that first comes to mind and shoot the letter out the door. Probably use the same or similar sentences 20 times a week. No deep thought or strategy has gone into writing this letter

    What does it mean:
    - you havent filed a claim so we can say if we are going to defend it or not. This is completely correct, you cant say you will do something that doesnt yet exist

    • however the client (neighbour) has said to the lawyer that he completely disagrees with your current assertions and so will defend the claim if one is made

    • hence if your claim comes through and its similar to what you have already said, I (the lawyer) expect my client (the neighbour) will instruct me to defend the claim

    Its honestly nothing more than that.

    Are all the comments about NCAT etc relevant to how the letter was drafted? Sort of, as in the lawyer probably has told the neighbour that the lawyer is unlikely to be able to appear in NCAT. So there is a bit of a bluff there, but the lawyer will know that you will know the rules, they are pretty self evident when you file an NCAT claim. However, you still know that sitting behind your neighbour will be a specialist advising the neighbour on all of the weak points of your claim, on how the legislation is interpreted, on what evidence to gather.

    Basically you are being told that if your claim is a try on or you dont do your preparation properly, you will lose. If you think your neighbour is a push over, then s/he isnt. Does it mean the lawyer has advised the neighbour that the neighbour will win - no, the lawyer may have told the neighbour that the case is a complete loser and said 'but we will send a warning letter and see what happens'. The neighbour can still try to defend it and make you prove your case, should the neighbour want to spend the money

    • easoweno on 03/07/2022 - 18:30

      So… should I address my application to the lawyer, or directly to the neighbour, should the neighbour instructs the lawyer to defend him? NCAT says that you normally cannot be represented by legal representatives if the matter is under $10k? I understand that lawyer can still help to prep the case.

      • dtc on 03/07/2022 - 22:05
        +1

        The neighbour is the named party, neighbours address etc. You can send it to the neighbour or you can ask the lawyer if the lawyer will 'accept service' (which means sending it to the lawyer amounts to proper service on the neighbour).

        As you are self represented it doesnt really matter. If you had a lawyer acting for you, then the rules are your lawyer should ask the other lawyer where to serve it. But you dont have to comply with those rules

        If you want to be polite, shoot the lawyer and email and say 'thanks for your letter, are you instructed to accept service of the NCAT claim on behalf of [neighbour]'. However, as mentioned, no obligation on you to do this. You can just serve it on the neighbour (or does NCAT mail it to them? I'm not sure what their process is - if NCAT send out the claim then dont bother asking the lawyer, let NCAT do their thing)

  • drfuzzy on 03/07/2022 - 16:11
    +3

    Reply:
    "I advise in the event you suspect you will receive instructions to defend such application, I can advise I suspect my solicitor will suspect to receive instructions based upon the suspicions contained in your correspondence."

    • Yola on 03/07/2022 - 16:22

      Love it.

  • Tleyx on 03/07/2022 - 23:25
    +2

    "I suspect you are full of shit

    Sincerely"

    Lawyers over a fence dispute is BS

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