Brown v Doyle - [2010] NSWSC 1269

Reported Decision:
179 LGERA 449

New South Wales

Supreme Court

CITATION: Allan Jeffrey Brown v James F Doyle & Ors [2010] NSWSC 1269

HEARING DATE(S): 23 April 2010

JUDGMENT DATE :
5 November 2010

JUDGMENT OF: Hidden J

EX TEMPORE JUDGMENT DATE: 21 December 2010

DECISION: 1. The appeal is allowed.
2. The matter is remitted to the local land board for determination according to law. For the purpose of that determination the land board must be differently constituted from that which made the decision the subject of the appeal.
3. The Doyles must pay the plaintiff's costs of the appeal, but I grant to each of them a certificate under s 6 of the Suitors' Fund Act 1951.

CATCHWORDS: DIVIDING FENCES - appeal against decision of local land board - whether retaining edge a "fence" for the purpose of Dividing Fences Act - determination whether vegetative barrier a sufficient dividing fence - denial of procedural fairness - whether Court should determine merits of the matter or remit it to land board

LEGISLATION CITED: Dividing Fences Act 1991
Crown Lands Act 1989
Supreme Court Act 1970
Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706
Carter v Murray [1981] 2 NSWLR 77
Warringah Properties Pty Ltd v Babij (Snr) & Anor [2006] NSWSC 702
Alwiah v Watts & Anor [2004] NSWSC 948
Loudoun-Shand & Anor v Jadasi Investments Pty Ltd [2007] NSWCA 316

PARTIES: Allan Jeffrey Brown (Plaintiff)
James F Doyle (1st Defendant)
Anne T Doyle (2nd Defendant)
Local Land Board for the Land District of Taree (3rd Defendant)

FILE NUMBER(S): SC 2009/298026

COUNSEL: Ms G Watts (Plaintiff)
Self represented (1st Defendant)

SOLICITORS: Ms G Watts, Stacks/Forster (Plaintiff)
Mr L Hagan, Baker & Borthwick (1st Defendant)
I V Knight, Crown Solicitor (Third Defendant)

LOWER COURT JURISDICTION: Local Land Board for the Land District of Taree

LOWER COURT FILE NUMBER(S): 09/08753

LOWER COURT JUDICIAL OFFICER : Chairman John Callaghan

LOWER COURT DATE OF DECISION: 24 September 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Friday 5 November 2010 & 21 December 2010
2009/298026 Allan Jeffrey Brown

v

James F Doyle & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff, Allan Jeffrey Brown, and the defendants, James Doyle and his wife, Anne Doyle, occupy adjoining properties at Tuncurry. Their dispute comes to this Court as an appeal against a decision of the local land board at Taree concerning the fencing of the boundary between the two properties. At the relevant time there was no more than a vegetative barrier, that is, a mound of dirt and number of trees, on the boundary. Mr Brown wanted to construct a colorbond fence. Mr and Mrs Doyle did not, taking the view that the vegetative barrier was adequate and appropriate.

2 It was the Doyles who sought the resolution of the dispute by the land board, invoking the board’s jurisdiction under the Dividing Fences Act 1991. There is…

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 Brown v Doyle

Details

AGLC: Allan Jeffrey Brown v James F Doyle [2010] NSWSC 1269
Case: [2010] NSWSC 1269
Decision Date: 5 November 2010

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent, Doyle, against a decision of the local land board. The central dispute revolved around the interpretation of the term "fence" under the Dividing Fences Act and the adequacy of a vegetative barrier as a dividing fence between the properties of the parties. The appellant, Brown, contended that the land board had erred in its interpretation of the statute and in its assessment of the vegetative barrier as a sufficient dividing fence. Additionally, Brown argued that the board had denied procedural fairness by not allowing him to present his case effectively.

The court was required to determine whether the vegetative barrier constituted a "fence" within the meaning of the Dividing Fences Act, and if so, whether it was sufficient to divide the properties. Furthermore, the court had to consider whether the land board had denied procedural fairness to Brown in its proceedings. The court needed to decide whether to affirm the land board's decision, remit the matter back to the land board, or determine the merits of the matter itself.

In its reasoning, the court examined the statutory language and found that the vegetative barrier could indeed be considered a "fence" under the Dividing Fences Act. The court also held that the vegetative barrier was a sufficient dividing fence between the properties. However, the court found that the land board had denied Brown procedural fairness by not allowing him to present his case adequately. As a result, the court decided to remit the matter back to the land board for a new hearing that would afford Brown procedural fairness. The court did not determine the merits of the matter itself, as it was of the view that the land board was better positioned to make the necessary factual findings.

The final orders of the court were that the appeal be allowed, the decision of the local land board be set aside, and the matter be remitted to the land board for a new hearing to be conducted in accordance with the principles of procedural fairness.

Orders