NSW Glass Pool Fence - Abandonment

[sk2801]

I had a landscaper install a non-compliant unsafe glass pool fence. He has refunded me the cost he charged but it has been some weeks and he hasn't come to remove the glass panels. This is holding up the re-install of the pool fence from a pool fence installer.
He was notified back in early January 2019 that I wanted it removed asap. He is trying to sell the glass panels on gumtree to recoup some money but I believe he wants to leave it as is until he sells it.
I have been in constant contact with him and he is just using excuse after excuse not to pick it up.

He even had the hide to ask me if he could get the new pool fence installer to take it down and store it carefully on my patio for him until he picks it up.

My question is how long can I give him until I can legally take ownership of it and get rid of it myself? He was given till tomorrow 21st January to remove it but he will not show up I can guarantee it.

Thanks

 

[Rod]

You need to send him a formal letter, probably with a minimum of 3 (value between $100-500) or 6 months notice (value up to 5k). I don't know the value of the glass panels, if greater than $5k you need court orders, saying all items will be considered abandoned property if not removed within the required period.

And no, you don't get to keep the panels for your own use (theft) but can sell them, and handover the money, less sale costs and costs reasonably incurred, to the panel owner.

Dispose of the panels incorrectly and you can become liable for the full cost of the panels.

 

[sk2801]

At the moment we have an unsafe non-compliant pool fence. So what you're saying is that I have to put everything on hold for a minimum of 3 months? Thats a joke I'll remove them myself and stack them next to the house.
As the landscaper refunded us the money, legally does the fence belong to him now? Keep in mind that the fence in its current state is illegal an we cannot use the area.

Im not interested in keeping the glass panels as the new install will have all new panels. I would be more than happy to give them away free to get them off my property.

 

[Rod]

I didn't say they had to be left as is. I said you can't incorrectly dispose of them, including giving them away, without becoming legally liable to the fencer.

You can give them away if you want to, just beware you can be sued for their cost.

 

[sk2801]

Thanks for the advice Rod. It's very frustrating knowing this guy is taking the piss and holding up rectification. He has had since the 9th January to remove it but he doesn't want to store it at his premises. I have seen his ad on Gumtree and I believe he is asking too much hence why the fence is still there. The guy is some piece of work.

 

[Scruff]

If the fence is non-compliant, then it's very existence is almost certainly in breach of the law. What you have here is a "gratuitous" or "involuntary" bailment, which means that you can take action under the NSW Uncollected Goods Act.

Given that this involves a fence that was probably illegally installed in the first place, you should act immediately, but give the lanscaper enough time to come to his senses in order to avoid the hassles of actually disposing of the panels yourself. I would say somewhere between 3 and 7 days. So...

Tell the landscaper to dismantle and remove the panels from your property within 7 days, or you will apply to the Local Court for a disposal order under section 8 of the NSW Uncollected Goods Act. (If the fence is non-compliant and/or illegal, there is little doubt that the order will be granted due to the safety risk.)

If the landscaper still doesn't comply, then apply to the court and be sure to ask for the disposal order to include the following:

1. authorization for the fencer to remove the panels immediately and for this work to be paid for out of the sale of the goods (get a written quote from the fencer to supply to the court);
2. authority to charge for storage until the panels are disposed of specifying the amount per day, or if you don't have anywhere to safely store them, ask for the order to specify that the goods are to be moved to self storage (Kennards for example) and specify the costs for both transportation and storage;
3. how the goods may be disposed of (private sale, auction etc) and specify the related costs.

If the landscaper then decides to pick up the goods, he has to pay you the amounts according to the order for the work under #1 and storage/transportation under #2.

If he doesn't pick them up before you dispose of them, then he is liable for for everything under #1, #2 and #3, and you only have to pay him the balance of the proceeds.

In short, he will lose a lot of money if he doesn't act straight away.

You might also want to consider reporting this guy to Fair Trading NSW for selling these non-compliant fences in the first place. (You can do this online.)

Some references for you:

Fair Trading NSW (Relevant info probably under "Building and renovating" and "Product safety" sections - click to expand then click the various links) Make a complaint

NSW Uncollected Goods Act (Parts 1 & 2 are relevant): Uncollected Goods Act 1995 No 68 - NSW Legislation