Faqs

Problems With Neighbours

What Should Be My First Step When I Have A Problem With My Neighbour?


In general, you should attempt to resolve any dispute with a neighbour by talking and trying to reach a solution satisfactory to each of you. After all, you may be living alongside one another for years to come and it is in both your interests to be on reasonable terms.

Taking disputes with the neighbour to court can be expensive for both you and your neighbour and the outcome may leave the parties bitterly antagonistic to each other. In your own interests, do not take any action over a problem before talking the matter over with your neighbour, or, if necessary, obtaining legal advice about your rights and possible remedies.

As an alternative to going to court you can take a dispute to a Community Justice Centre. At these centres, trained mediators help people in dispute to come to a settlement. Mediators do not decide who is right or wrong, nor do they have the power to award costs or impose penalties. Community Justice Centres and Community Legal Centres may advise you to see a Solicitor before mediating so that you are aware of your legal rights before negotiating a settlement to a dispute.

My Neighbour Peers Over The Fence – Do I Have A Right To Privacy?


Legally there is no right to privacy and nothing you can do about a neighbour who looks into your property or listens to what is going on there. Apart from asking the neighbour not to look into your house, you could take actions such as building a higher fence, planting screening trees or shrubs, or hanging heavier curtains. If the behaviour becomes more serious as to be intimidating or harassing, you may need to seek a Personal Protection Order

What Can I Do About Overhanging Branches?


Cutting back the branches and roots of your neighbour’s tree that protrude on to your property would usually require the consent of your local council under its Tree Preservation Order.

Orders generally cover trees above a certain size and may include large bushes, but regulations vary widely between different councils. You should check with your local council about their specific regulations before proceeding with any cutting back. Remember, if there is a preservation order and you breach it, you could be prosecuted and fined.

If a neighbour’s tree causes damage on your property, for instance by its roots lifting a driveway or a dead branch falling and knocking tiles off your roof, you may be able to sue for compensation. A court can make an order to remedy, restrain or prevent damage caused by a tree.

Can My Neighbour Come On To My Land?


Only under certain circumstances for instance if the neighbour has a right of way. Usually, any right of way will be described on you and your neighbour’s land title documents and cannot be ended or varied except by both of you agreeing to do so.

You can allow any person to come on to your land for a particular purpose and can withdraw the permission at any time. Once you have withdrawn permission, the person must leave immediately; if the person does not, he or she becomes a trespasser.

Without your permission, your neighbour has no right to come onto your land to retrieve something that has crossed the boundary, for instance a tree branch, a ball or an animal. Anyone who comes on to your land without your permission is a trespasser and you can sue a trespasser for any damaged caused. However, a court can make an order to authorise access to a neighbour’s land for certain purposes, such as painting your house if it is very close to the boundary.

How Can I Stop My Neighbour’s Noise?


The first thing to do is ask your neighbour to stop or reduce the noise or to make it only at certain times of the day. If this approach falls, depending on the cause of the noise, there are various steps you can take. For example, if you are being disturbed by a party late at night, you may complain to the police who can give a noise abatement direction to the noise makers.

There are regulations that restrict the use of certain noisy items, such as lawn mowers, power tools and air conditioners to certain times on certain days. You should approach the local council or the Environment Protection Authority if you are troubled by noise from such items.

Do I Need A Dividing Fence?


There is no requirement to have a fence if you and your neighbour don’t want one. However, if, for instance, you want a fence and your neighbour doesn’t, you should get a quote for one to be built and discuss it with the neighbour.

If you don’t reach agreement, you can give the neighbour a written notice specifying the fencing work proposed. If after serving the notice you and your neighbour still cannot agree, either of you may ask the Local Court or land board to make an order about the fencing work required.

Problems With Debt?

Generally credit is easily obtainable for personal or business reasons either in the form of finance (loan), or as a business transaction, for example, in the form of an invoice. Someone’s credit to you is however your debt to them, raising a legal obligation to pay back the debt in an agreed manner at an agreed time.

Debt can therefore be a problem for both the creditor who is seeking payment of the debt from the debtor, and for the debtor who may have valid reasons for not paying a debt such as never receiving goods, faulty goods or poor workmanship. It is often best for a debtor and creditor to try and reach an agreement. A debtor, for example, may agree to pay off the debt by an instalment plan, or the creditor may agree to rectify or replace faulty goods in return for payment. Taking legal proceedings remains an option if an amicable agreement cannot be reached.

A Solicitor Has Sent Me A Letter Of Demand. What Should I do?


Don’t Ignore It.


The Solicitor has written the letter on behalf of someone (the creditor) who claims that you owe him or her money. The letter will usually state that unless you pay the amount claimed within a specified time (often 14 days) the Solicitor has been instructed to begin legal proceedings against you.

If you do owe the money you should pay the debt as soon as possible to avoid having to pay extras such as court costs and interest on the money.

If you can’t pay the whole amount at once, you can offer to pay by instalments. Try to reach agreement with the person to whom you owe the money – your creditor. He or she is mainly interested in getting the money back and will usually only take legal proceedings if there is no other way of achieving this.

If you do not owe the money you can refuse to pay. If there is a clear reason why you do not owe the money (for example if the money is for goods or services that you didn’t receive) you can tell the Solicitor about this. This may prevent court proceedings being started. However, if you are not sure that you owe the money, you should get legal advice.

Remember legal advice can always help. Even if you owe the money, a Solicitor may be able to make better arrangements for you to repay it.

If you are successfully sued in court, interest can be awarded against you, so it is in your interest to
try to negotiate without going to court.

What If Legal Proceedings Are Begun Against Me?


You will know if legal proceedings have been commenced against you because you will be served with a statement of claim. Your creditor’s Solicitor will have already filed this document with a court.

Don’t Ignore It.

If you do owe the money, it is still not too late to negotiate terms of agreement with the creditor. You can admit the debt and offer to pay by instalments through the court office. But if you do this and the creditor objects to the terms you have offered  within 14 days, the matter will be decided by the court.

If you free you do not owe the money, you can choose to defend the claim. You can lodge the defence yourself or have your Solicitor assist you to prepare and lodge it with the court. A defence sets out your reasons for believing you do not owe the money.

You may also want to make a counter claim against the creditor – for example, that you may have been sold defective goods by the creditor who says you owe them money. If you want to defend the claim, the court will set a date for the hearing.

If you are served with a statement of claim and do nothing about it for 28 days, your creditor is then entitled to apply to the registrar of the court for judgment against you.

Can I Get A Judgment Set Aside?


If a judgement has been entered against you, for example because you ignored the statement fo claim or didn’t turn up in court on the date set for the hearing, in some circumstances you may apply to the court to have to have the judgement set aside. You will have to explain to the court why you failed to lodge a defence or did not attend court, and you will also be required to file your notice of grounds of defence within a specific time. In most cases you will have to pay your creditor’s legal and court costs, which will usually be assessed by the court at the hearing.

What Happens At The Hearing?

At the date appointed for the hearing, the court will listen to what your creditor and you have to say, and make a decision. You and your creditor can speak for yourselves in court, but you can also be represented by a Solicitor. It will be necessary for you to give the court written statements of evidence from you and all your witnesses.

Under Arrest?

Who Can Arrest Me And Why?

A police officer can arrest you if, for example:

  • They suspect on reasonable grounds that you have committed an offence;
  • A warrant (written authority) for your arrest has been issued by a court;
  • You can committed or are about to commit an offence;

A private citizen can arrest you where you have committed or are in the act of committing a crime.

How Should They Arrest Me?


The person arresting you should:

  • Tell you what you are under arrest;
  • Tell you why you a being arrested.

Can They Use Force To Arrest Me?

A police officer may use force as in necessary to arrest you. Unreasonable force is assault. After arrest, a police officer may hand cuff you if you attempt to escape or the officer considers it necessary to prevent you escaping. A judge or magistrate will decide whether or not the force used was reasonable in the circumstances.

What Happens If I Resist Arrest?


It is an offence to resist arrest. Active resistance is required for a charge of resisting arrest to be laid. Lying down and refusing to co-operate is not resisting arrest. Police may arrest you if they reasonably believe you have committed an offence, even if, in fact, you are completely innocent. If you resist arrest, you are committing an offence with which you may be charged, even if the police do not charge you with any other offence.

Do I Have To Submit To A Search?


Yes. Police can stop, search, and detain you if they have reasonable grounds to believe you are carrying something illegal, stolen items, drugs, things obtained illegally, dangerous articles, or things police believe may be used illegally, such as tools for theft or weapons.

Police can pat you down, look in your pockets and bags and search your car. Police are only allowed to strip search you in serious and urgent circumstances, and there are strict rules to ensure privacy and supervision. If you refuse to be searched, the police may arrest you and use force to search you.

When carrying out a search, the police officer involved is required to provide their name, place or duty and reasons for the search.

A judge or magistrate will decide whether or not the police had reasonable grounds for the search at a later date.

Can I Be Arrested For Questioning?


No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. It is not advisable to speak with the police until you have first spoken to your Solicitor. You should ask for a lawyer or independent witness to be present during questioning.

What Should I Do When Arrested?


Politely insist that you be allowed to contact a lawyer. You have the right to have a lawyer present while you are being questioned to give you advice. There is no legal aid for lawyers to attend police stations to advise you during questioning.

Do I Have Answer Questions If I Am Under Arrest?


In general you have the right to silence. However, if the arrest concerns a motor vehicle, you are required to give your name and address and particulars of the incident to the police.
Police should caution you, before questioning, that no questions need to be answered but that any answer given may be used in evidence. The police may want you to answer questions in what is known as a record of interview. This may be recorded on video and audio tape. Give the police your name, address and date of birth, but do not answer any other questions unless you have your Solicitor present. Do not sign any document other than a bail form!

Do I Have To Submit To Being Fingerprinted Or Photographed?


Yes. The police may take your fingerprints and photographs of you for the purpose of identification. If you are subsequently acquitted or the charges against you dropped, you may ask that your fingerprints and photographs be destroyed.