Chrisp v Goudie - [2021] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
CHRISP v GOUDIE
[2021] SADC 147
Reasons for Decision of his Honour Judge Slattery
14 December 2021
ADMINISTRATIVE LAW - JUDICIAL REVIEW
Application for review of a decision of a magistrate.
The applicant and respondent are retired persons who are neighbours on Ocean Boulevard at Middleton, South Australia.
The applicant sued the respondent for alleged trespass, damages, costs and other claims arising out of works upon a retaining wall between two neighbouring properties built on the land of the respondent. The respondent brought a counterclaim for damages for trespass and for exemplary damages.
The learned magistrate found that there had been trespass upon the land of the applicant by the respondent and awarded damages. Her Honour dismissed the application for exemplary damages.
The learned magistrate found that there had been trespass upon the land of the respondent by the applicant and awarded damages. Her Honour dismissed the application for exemplary damages.
The applicant seeks a review of the decision of the learned magistrate and alleges inter alia that there should be costs awarded for an independent engineer, that exemplary or aggravated damages should have been awarded and general damages should have been made in favour of the applicant in relation to matters pertaining to the retaining wall.
Held: Application dismissed. Decision of the learned magistrate affirmed.
Magistrates Court Act 1991 (SA) s 38(4)(a); Fences Act 1975 (SA), referred to.
Maclean v DID Piling Pty Ltd [2010] SASC 33; House v The King (1936) 55 CLR 499, discussed.

CHRISP v GOUDIE
[2021] SADC 147
Minor Civil Review

On Monday 13 December 2021, I heard this application for a minor civil review. At that time, I dismissed the application and said I would publish my reasons. These are those reasons.
On 6 August 2021, Magistrate Anderson in the Magistrates Court of South Australia, delivered her judgment on claim made between Mr Chrisp and Mr Goudie, neighbours at Middleton in South Australia, about an alleged trespass, damages, costs and other claims. Her Honour also published her decision about the challenge to the decision of her Honour on the counterclaim of Mr Goudie against Mr Chrisp for damages for trespass.
Her Honour summarised the background of the dispute at [2] of her Honour’s judgment. It neatly summarises the issues and provides as follows:
[2] Mr Chrisp and Mr Goudie, now both in their seventies, own neighbouring properties on Ocean Parade, Middleton. These properties have panoramic views of the coastline. Middleton is a small community and many residents share a love of surfing. Mr Goudie and his wife were enjoying a quiet and tranquil lifestyle at what became their permanent home at <X> Ocean Parade until 1999, when Mr Chrisp lodged development plans for his holiday house at <X> Ocean Parade which would see him build forward of Mr Goudie and Mr McKay, who lived at <X> Ocean Parade and thus restrict their existing views. This was the catalyst for over 20 years of hostility between Mr Chrisp and his neighbours, with Mr Goudie and Mr McKay taking Supreme Court action relating to the development in 2002 and Mr McKay taking Magistrates Court proceedings alleging trespass by Mr Chrisp in 2006. This hostility has culminated in these proceedings, which see Mr Chrisp claiming general and exemplary damages for trespass when, in 2017, Mr Goudie replaced a retaining wall (the retaining wall) following written demands by Mr Chrisp to rectify the trespass he claimed was occurring by concrete from the retaining wall falling onto his paving. Mr Goudie has, in turn, counterclaimed and sought general and exemplary damages, primarily for alleged trespasses on his property by workmen instructed by Mr Chrisp.
Although I will address the matters in detail later, her Honour found that there had been trespass upon the land of Mr Chrisp and, at [99] awarded damages in the sum of $1,000. Her Honour refused to award exemplary damages in his favour.
On the counterclaim of Mr Goudie, her Honour also awarded general damages in the sum of $1,000 at [149]. Her Honour also dismissed Mr Goudie’s claim for exemplary damages and other costs.
Her Honour then turned her attention to the question of costs. She found that each party had partially succeeded in their claim, there had been a modest award of general damages and both had been unsuccessful in their claims for exemplary damages. Her Honour found that the trial occupied an inordinate amount of time, issues were not dealt with at one time but were visited on a number of occasions, and that each party had failed on their exemplary damages claim. Her Honour found at [167] as follows:
[167] There is a wide discretion as to costs. At the end of the day, I am of the view that each party should bear their own costs. This includes the costs associated with the attendance and provision of reports of any witness, including Mr Magryn.
Mr Chrisp has filed a notice of application for review. It relevantly provides as follows:
Review Details
Matter Type: Neighbourhood dispute (Minor Civil Claim)
This Application is for review of the decisions that (found Mr Goudie had trespassed on Mr Chrisp's property numerous of times but) no costs or exemplary damages were awarded to the Plaintiff. In addition, this Application is for review of the decision that awarded Mr Goudie general damages
The Appellant applies for review of the Judgment identified below.
This application for review is brought under section 38(6) of the Magistrates Court Act 1991.
Part 1
Orders challenged
1.   No award was made in favour of the Plaintiff for Court costs or the costs of the Independent Engineer.
2.   No exemplary or aggravated damages were awarded against the Defendant in favour of the Plaintiff.
3.   An award of general damages was made in favour of the Defendant in relation to the installation of the plate on the retaining wall
The grounds specified are as follows:
Part 2 Grounds of review
1.   The Judgement contains some conclusions that are contrary to decisions made in Higher Courts (Ie contrary to legal precedent).
2.   An award for costs normally follows in favour of the successful party. Her Honour's Judgement confirms the Plaintiff was primarily successful in proving that the Defendant willingly trespassed on the Plaintiffs property numerous times, and should be awarded costs.
3.   It is common for exemplary damages to be awarded in the case of intentional trespass to act as a deterrent to both the trespasser and other members of the community that trespass is not acceptable. Her Honour's Judgement confirms the Plaintiff was primarily successful in proving that the Defendant willingly trespassed on the Plaintiff's property on numerous occasions, and (despite the Plaintiff advising the Defendant in writing that he was not to trespass on the Plaintiff's property some time before the trespass to replace the retaining wall, and the installation by the Plaintiff of 'Private Property' and 'Trespassers Prosecuted' signs on the Plaintiffs property) the Defendant willingly and intentionally trespassed on the Plaintiff's property.
4.   The law of Equity, including the Defendant's prior conduct, and the applicability of relevant Acts, should have been applied in relation to the award in favour of the Defendant and the award for the Defendant should have been denied.
5.   There are a number of important factual errors recorded in the Judgement that are not supported by the evidence given and provided. Some of these errors are relevant to the requested outcome in the above matters
Orders sought are as follows:
Part 3
Orders sought
1.   That the Defendant pay the Plaintiff for the Court etc costs (including the costs of this Review), and the cost of the Independent Engineer's cost.
2.   That the Defendant pay the Plaintiff exemplary and aggravated damages in the sum of $12,000-.
3.   That the award in the Judgement for the Plaintiff to pay the Defendant the sum of $1000- be quashed.
Each of Mr Chrisp and Mr Goudie filed detailed written submissions in support of the application for and the opposition to this application for review. I have read and taken into account the content of each of those documents.
At the commencement of this review, an application was made on behalf of Mr Goudie under s 38(4)(a) Magistrates Court Act for representation of behalf of Mr Goudie by Mr Sykes-Bidstrup, solicitor. I did not allow that application. Having regard to the content of the detailed written material filed by both parties, I was satisfied that it was not necessary for there to be legal representation of one party. Also, Mr Chrisp vigorously opposed this application. I allowed Mr Sykes-Bidstrup to remain in court and to give whatever assistance he could to Mr Goudie. This did not cause any difficulties in the course of the hearing.
I deal first with the issue of costs under the first order challenged. The applicant submits that an award for costs would normally follow in favour of the successful party and, inferentially at least, because he was primarily successful in proving that Mr Goudie willingly trespassed on his property, he should be awarded costs.
Mr Goudie submits that the cost order should not be disturbed.
I have earlier set out the content of [167] of her Honour’s judgment on costs. That decision was made after her Honour considered the degree to which each of the parties were successful on contested matters and the amount of the court time occupied by the issues on which each of the parties were successful. Her Honour then exercised her own unfettered discretion on costs.
In my view, to disturb her Honour’s decision on costs, it would be necessary to disclose some demonstrable error in the reasoning of the learned magistrate.
I invited both Mr Chrisp and Mr Goudie to enter the witness box and give any further evidence to me that they wished. Both of them declined to do so and were content to rely upon the papers before the court, the transcript of evidence, the Exhibits and their lengthy written submissions. Neither of them had anything further to add on the topic of the exercise of her Honour’s discretion on this or on any other topic.
In my view, in order to vary the costs order, it is necessary to identify some demonstrable error made in the reasoning of the learned magistrate.
In Maclean v DID Piling Pty Ltd,[1] Layton J concluded that on an appeal on costs, notwithstanding any other rule, it is necessary to satisfy the principles set out by the High Court in their decision in House v The King:[2]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear that the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is to be reviewed on the ground that a substantial wrong has in fact occurred.
[1] [2010] SASC 33 at [19]-[23].
[2] (1936) 55 CLR 499 at 505.
I have reviewed all of the material upon which her Honour formed her discretion. I am not able to identify any error in the exercise of her Honour’s discretion. She has not acted upon any wrong principle, she has not allowed extraneous or irrelevant matters to guide or affect her, there has been no mistake of the facts, she has not taken into account any immaterial consideration and there is no basis for the review of the exercise of her discretion. It is quite apparent how her Honour has reached the result embodied in her order. No basis has been put to me sufficient for me to interfere with the exercise of discretion of her Honour at first instance. I therefore reject ground 1 of the grounds under the review. I am satisfied that the orders made by her Honour on costs which included no order for costs in favour of the plaintiff or in respect of the costs incurred by the plaintiff in relation to any independent engineer were made on a proper basis. No error has been shown and the basis of her Honour’s discretion is demonstrably clear. I would dismiss this ground of the review application.
The second ground of review complains that no exemplary or aggravated damages were awarded against the defendant in favour of the plaintiff. On the grounds of review, Mr Chrisp contends that it is common for exemplary damages to be awarded in case of intentional trespass to act as a deterrent to both trespasser and others. Mr Chrisp then complains he was primarily successful in proving that the defendant willingly trespassed on his property despite warnings not to do so.
On the question on the issue of trespass, her Honour sets out at [45]-[50] of her Honour’s judgment, the circumstances leading to the work needed to be done upon the retaining wall situate on Mr Goudie’s land. His land is appurtenant to the land owned by Mr Chrisp. The work was carried out by a contractor, Mr Bryant, as the agent of Mr Goudie. He became aware that Mr Bryant would need, at some occasion, to be on the land of Mr Chrisp and knew there was a risk that Mr Chrisp would consider this to be a trespass. Her Honour found on the balance of probabilities that no real effort was made by Mr Goudie to seek permission from Mr Chrisp although, it is at least clear if not implicit, that her Honour was of the view that if any or such request was made it would have been refused.
Her Honour then considered the Fences Act and then the defence of necessity. Her Honour accepted the evidence of Mr Bryant that it was necessary for the retaining wall to be replaced. There was spalling within the concrete sleepers, there was other rusting within the framework of the retaining wall and that, in time, it was necessary for these concrete sleepers and framework to be replaced, for example, within at least 6 months. There is obviously some urgency involved in those matters. The engineering expert called by Mr Chrisp was a Mr Magryn. He opined that there were other options available such as propping up the wall. Anything connected with the wall which would protect it in the meantime, such as propping it up, would have required the cooperation of Mr Chrisp. Her Honour found that even though Mr Goudie thought the repairs were urgent the preferable view was that of Mr Magryn who thought the repairs were not so urgent that there was not time to seek Mr Chrisp’s approval. Again implicit within her Honour’s reasoning is that if Mr Chrisp was asked for his approval, it would not be given. However, it is not necessary for me to make that finding. Her Honour found that because of the state of the evidence, the defence of necessity had not been made out.
Her Honour then went on to consider the other complaints made about the work that was done. That is in the context that an issue arises whether the work has been done and has caused no interference with any aspect of the enjoyment of the land by Mr Chrisp or whether there has been any physical effect upon the land itself as a result of that work being done. It is common ground that when Mr Bryant did the work, he put down a protective matting and carpet to ensure that there was no detritus falling upon the property of Mr Chrisp that would not otherwise have been cleaned and to protect the property of Mr Chrisp.
There were considerable criticisms made by Mr Chrisp about an alleged effect of the work by Mr Bryant upon pavers adjacent to the fence line and up to his home. Her Honour considered all of the evidence thoroughly and in particular, the evidence given by Mr Bryant who denied causing any damage to the paving. Mr Bryant also gave evidence that there was subsidence of the existing pavers due to the deficiency of the subbase of the pavers. There was no sufficient evidence led by Mr Chrisp which would lead inevitably to the conclusion that anything done by Mr Bryant was in anyway connected with the subsidence of the pavers. So much is obvious when it is known that Mr Magryn initially expressed a contrary opinion in his report and then to an extent recanted from that opinion when giving evidence. I have seen the same photographs as Mr Magryn and I am satisfied that it takes no particular level of expertise to see that there is evidence of subsidence of those pavers which could not be in any way connected with anything done by Mr Bryant on that property. Her Honour accepted the evidence of Mr Bryant that the concrete sleepers were not placed upon the pavers, the largest depression in the pavers is close to the wall of the home of Mr Chrisp and some distance from where Mr Bryant would have been working. Her Honour was satisfied that Mr Chrisp had not proved his case on that topic on the balance of probabilities.
Her Honour then considered at length the other claims for damages. These included in relation to paint stains, the sealing of gaps within a retaining wall and claims to remove concrete surrounding a fencepost to reseal the steel and to remove cement on the fencing. Her Honour considered and properly rejected these claims. Also, Mr Chrisp alleged that a worker must have climbed over the gate on his property but Mr Bryant gave evidence that he did not scale that gate and was able to do his work by reaching in from the property of Mr Goudie. That evidence was accepted. There was no basis in my view to interfere with her Honour’s finding on the credibility of that evidence.
In relation to the fence post and the concrete, her Honour decided that she would not make any allowance for repairs. Her Honour found that the state of the evidence was unsatisfactory about the true boundary, the retaining wall was set 50 mm at least and up to 90 mm back from the boundary. Therefore, no finding could be made that the cement applied by Mr Bryant to two portions of the retaining wall is in fact on Mr Chrisp’s property. Her Honour also then made findings in relation to the fence posts, the wire upon the fence post and the state of the painting of those items. She found that it was unlikely that there would be any additional costs beyond the repairs already required. Work has been carried out to seal the area underneath the retaining wall to prevent any potential hazards. Her Honour found that it would be imprudent to remove the concrete.[3]
[3] At [93].
Remarkably, there was a claim made for the cost of a boundary survey. In my view, such a survey would have been made at the time of the purchase of the property and so the survey pegs should have been available. There was also a claim of $2,762 for a surveillance system. In my view, that claim falls well outside of common law principles on damages.
Her Honour then assessed damages in the amount of $1,000. Having assessed those damages, her Honour then turned her attention to whether or not there was any basis to make an award of exemplary damages which are intended to punish a wrongdoer for conduct showing a conscious and contumelious disregard for a claimant’s right and to deter a wrongdoer from committing like conduct again.

Before her Honour, Mr Chrisp claimed exemplary damages in relation to the retaining wall incident itself. That is, the fact that Mr Bryant was, for a period of time, upon his property, in order to carry out the repair work of the retaining wall upon the property of Mr Goudie. This was done whilst ignoring property rights.
He then made complaints about other matters. For example, he made complaints about construction of parts of a pergola or a fence line. Her Honour accepted that all of the work carried out upon the fence line was carried out from the side of Mr Goudie. Her Honour was not satisfied that, insofar as it may have been necessary for work to have been done from the side of the property owned by Mr Chrisp, that the work was done whilst a person was on that property. Her Honour was not satisfied that Mr Chrisp had discharged the onus upon him that the work was done from his side of the property. This included repairs, for example, of a gutter.
Mr Chrisp also made complaints about repairs to the base of a fence. He contended that a tradesman must have come onto his property to effect those repairs because that is the only way it could be done and that whilst there, there was poisoning of some grass. Her Honour rejected those claims.
Mr Chrisp also claims that Mr Goudie had security cameras pointed directly at his lounge. This was denied and proof was produced before her Honour that in fact these cameras do not record any activity on his property but are to provide a live streaming of surf conditions at Middleton. That evidence was brought by Swell Net, the owners of the cameras which provided this service to Mr Goudie.
It was also alleged by Mr Chrisp that trees were deliberately cut however the evidence before her Honour was that this work was done by Mr Goudie in conjunction with a Mr Cox from an area outside of Mr Chrisp’s yard. Allegations were made that dog faeces were thrown at Mr Chrisp’s property, but her Honour found that Mr Chrisp could not establish that these faeces were deposited or thrown by Mr Goudie. There were a number of other complaints including a common complaint by Mr Chrisp and Mr Goudie about water and effluent spray upon each other’s properties. All of these were correctly rejected by her Honour.
Finally, Mr Chrisp complained that Mr Goudie’s flag on his flagpole fluttered across the boundary of his property and therefore directly into his line of sight. The photographs show that the flag is atop a flagpole which sits at a height well above the vision line of Mr Chrisp’s house.
Her Honour then made this finding in relation to the claim for exemplary damages at [133]:
Decision regarding Mr Chrisp’s claim for exemplary damages
[133] Mr Chrisp has failed to establish a history of repeated incursion on to his property by Mr Goudie. The only significant previous incident I have found established is the necessary repairs to the shed which may have occurred in 2004. The trespass that occurred in 2017, which is the basis of the claim, either alone or in combination with this one previous incident would not, in my view, justify an award of exemplary damages.
In my opinion, there has been no error in the consideration of these matters by her Honour. I am satisfied, as was her Honour, that Mr Goudie has not engaged in a conscious and contumelious disregard for Mr Chrisp’s rights and it is not necessary to deter Mr Goudie from committing like conduct or that Mr Goudie needs to be told as a wrongdoer that tort does not pay.
I would dismiss ground two of the notice of review.
The third ground of review complains about an award of general damages made in favour of the defendant, Mr Goudie in relation to the installation of a plate on the retaining wall.
In paragraphs 4 and 5 on the grounds of review, Mr Chrisp argues that the law of equity, including the defendant’s prior conduct and the applicability of relevant acts, should have been applied in relation to the award in favour of the defendant. That award should have been denied. He contends that a number of important factual errors were recorded in the judgment is not supported by the evidence given and provided.
I have reviewed all of the evidence that has been given. The principal complaint in relation to the aspect of trespass by Mr Chrisp for which her Honour fixed general damages in the amount of $1,000 at [149] concerned the affixation of a plate upon the retaining wall of Mr Goudie (viz the bottom of Exhibit P9 and the top of Exhibit P10 and P11 of Mr Magryn’s report Exhibit A16). The plate is attached to the base of the concrete retaining wall and the wooden sleeper that forms part of the delineation of Mr Goudie’s property. Workmen employed by Mr Chrisp installed the plate on 16 May 2018 and when so doing made no effort to remain on Mr Chrisp’s property. Photographs were taken by Mr Bryant showing the work being carried out by these workmen and her Honour has accepted the veracity of those photographs.
Mr Chrisp did not seek permission from Mr Goudie to affix this plate. Her Honour found that the work was carried out at Mr Chrisp’s direction. At the time, Mr and Mrs Goudie were overseas. I have no doubt that, having regard to his own conduct and his own complaints, Mr Chrisp was keenly aware that the retaining wall was situate upon the property of Mr Goudie and was therefore not on the boundary. He was just as aware that for his workmen to come onto that property to carry out work on that retaining wall meant that those workmen were trespassing. That is, Mr Chrisp was acting in contumacious disregard of the rights of Mr and Mrs Goudie and where he himself keenly aware that these actions were a trespass by his contractors upon the property of Mr Chrisp and an actionable wrong.
Before the learned magistrate and before me, Mr Chrisp explained that the affixation of the plate was to prevent water run-off. However, he also acknowledged that he knew welding would be involved and directed that the plate be fixed directly to the side of the retaining wall. He also directed that the work be carried out from his property.
Her Honour then considered whether the act of the contractors became the act of Mr Goudie. Her Honour found that the work of the workmen working on Mr Goudie’s property and affixing the plate onto that property was an actionable wrong. This was because the plate was installed in that way at the instructions of Mr Chrisp. As I have indicated, the affixation of that plate was, in those circumstances, a trespass.
Her Honour also found that Mr Chrisp was disingenuous in attempting to explain why the plate was installed. He attempted to argue that the plate was a very short fence for the purposes of the Fences Act, that he was entitled to erect a fence on the boundary but that was contrary to earlier argument that the Fences Act did not apply to retaining walls. It also contradicts his acceptance of the fact that the retaining wall was wholly upon Mr Goudie’s property. Therefore, any necessity defence would also be unavailable to Mr Chrisp and he should have sought Mr Goudie’s permission to do that work. He did not do so.
Her Honour accepted that no actionable loss had been caused to Mr Goudie but having regard to the history between the parties, he is entitled to general damages for trespass. Implicitly enough, it was accepted that Mr Chrisp was the genesis of many of the difficulties that had been created and demands had been made upon Mr Goudie over a very long period of time and so he would have been very distressed and angry that his property rights had been ignored by Mr Chrisp. This occurred in the background of Mr Chrisp issuing proceedings against him for trespass in relation to the repair of the retaining wall, to which Mr Chrisp was directing his contractors to affix the metal plate. Her Honour reached the conclusion that there was no reason why the general damages should be any different from those awarded to Mr Chrisp. In reaching that conclusion, I can point to no error in the judgment of her Honour and in fact I fully agree with her Honour’s decision. I think it is correct. Her Honour then dismissed the claim for exemplary damages made by Mr Goudie.
Turning them to the content of the review grounds, I have dismissed review grounds 1, 2 and 3. It is therefore unnecessary to consider the orders sought, in respect of which the applicant Mr Chrisp has wholly failed.
Under Part 4, an extension of time is sought to bring the review. In light of the fact that the review has no prospect of success, I would deny the application for the extension of time.