Baypeak Pty Ltd v Lim - [2005] VSC 77

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8337 of 2004

BAYPEAK PTY LTD (ACN 005 408 181)	Appellant
v
MAIMIE LIM	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2005
DATE OF JUDGMENT:	22 March 2005
CASE MAY BE CITED AS:	Baypeak v Lim
MEDIUM NEUTRAL CITATION:	[2005] VSC 77

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Appeal – s 109 Magistrates’ Court Act 1989 – Whether, for the purposes of s 4 Fences Act 1968, appellant and respondent are liable to construct or join in the construction of a dividing fence along an unfenced portion of boundary between their properties which is subject to an easement of carriageway – Whether the proposed fence and gate was an unreasonable or substantial interference, or a diminution of, any rights of the dominant tenement – Pettey v Parsons [1914] 3 Ch 653; Hose v Cobden [1921] VLR 617; Gohl v Hender [1930] SASR 158; Dunnell v Phillips (1982) 2 BPR 9517; Wilson v Bahr (1991) V ConvR 54-392; Saggers v Brown (1981) 2 BPR 9329; Butler v Muddle (1995) 6 BPR 13.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R A Edmunds	Telford Story & Associates
For the Respondent	Ms E Konstantinou	Harwood Andrews Lawyers

HER HONOUR:

This is an appeal under section 109 of the Magistrates’ Court Act 1989 against a final order made on 30 August 2004 by the Ringwood Magistrates’ Court, whereby it was ordered that a claim under the Fences Act 1968 (“the Act”) by the appellant (“Baypeak”) be dismissed and Baypeak pay to the defendant (“Mrs Lim”) the sum of $1613 costs.

On 21 October 2004 Master Wheeler ordered that the questions of law shown by the appellant to be raised on the appeal were:

(a)whether for the purposes of section 4 of the Fences Act 1958 the appellant and respondent being occupiers of adjoining lands are liable to construct, or join in or contribute to the construction of a dividing fence and/or a dividing fence and gate along an unfenced portion of boundary between their two properties which is subject to an easement of carriageway in favour of the respondent?
(b)whether the learned Magistrate in dismissing the appellant’s complaint took into account an irrelevant and extraneous consideration being the loss of amenity to the view available to the respondent?
(c)whether the learned Magistrate in dismissing the complaint erred at law in determining that it would be:
(i)an unreasonable impediment to the defendant to order the construction of a fence and gate;
(ii)a diminution of the defendant’s rights to require her to contribute to the fencing of the area in dispute; and
(iii)a substantial interference with the defendant’s rights to require her to contribute to the fencing of the area in dispute?

(d)whether as a natural and necessary incident to the use and enjoyment of that part of the appellant’s land which is subject to an easement of carriageway in favour of the respondent’s land:
(i)that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baypeak Pty Ltd v Lim

Details

AGLC: Baypeak Pty Ltd v Lim [2005] VSC 77
Case: [2005] VSC 77
Decision Date: 22 March 2005

CaseChat Overview and Summary

Baypeak Pty Ltd, the appellant, sought to appeal a decision against Lim, the respondent, in the Magistrates’ Court of Victoria. The appellant claimed that the respondent was required to contribute to the construction of a fence along an unfenced boundary line, which was subject to an easement of carriageway. The appeal hinged on whether the appellant and the respondent were obliged to construct or join in the construction of a dividing fence according to section 4 of the Fences Act 1968, and whether the proposed fence and gate would constitute an unreasonable or substantial interference or diminution of any rights of the dominant tenement.

The court was required to determine whether the proposed fence would unreasonably interfere with the rights of the dominant tenement, which held an easement of carriageway over the land. This involved considering the relevant case law, including Pettey v Parsons, Hose v Cobden, Gohl v Hender, Dunnell v Phillips, Wilson v Bahr, Saggers v Brown, and Butler v Muddle. The court had to assess whether the easement rights were being unduly impaired by the proposed construction of the fence.

The court held that the proposed fence would not unreasonably interfere with the easement of carriageway or the rights of the dominant tenement. The court found that the proposed fence and gate would not substantially diminish the rights of the dominant tenement, and therefore, the respondent was not required to contribute to the construction of the fence. The court also considered the practical implications of the proposed fence, including its impact on the use of the easement of carriageway. Ultimately, the appeal was dismissed, and the decision of the Magistrates’ Court was upheld.

The final orders of the court were that the appeal be dismissed, and the decision of the Magistrates’ Court be affirmed. The respondent was not required to contribute to the construction of the fence along the unfenced boundary line, and the easement of carriageway over the land would not be unreasonably interfered with or diminished by the proposed fence and gate.

Orders