Legal Research
Cases
Fennell v Wright

Fennell v Wright

Case [2006] SADC 88 2 August 2006

Jurisdiction

Statutory Interpretation

Specific Performance

Ambiguity in Contract

Parol Evidence

Natural Justice & Procedural Fairness

Administrative Law

Property Law

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
FENNELL v WRIGHT
[2006] SADC 88
Judgment of His Honour Judge Tilmouth
2 August 2006
FENCES AND BOUNDARIES
A dispute arose between two neighbours as to the height of a fence and garage wall on the boundary of adjoining properties. A settlement agreement between the parties following mediation, provided that the fence would be 2.2 metres in height on the (respondent's) side and 1.5 metres on the (applicant's) side. Paragraph 2 referred to a garage wall "3.4 metres in height". A disagreement arose as to the meaning of this. A Magistrate, pursuant to s12(f) of the Fences Act 1975, found the description of the wall as "3.4 metres in height" was unambiguous and required the Defendant to reduce the height of the garage wall accordingly.
The Defendant appeals on the grounds that the order was made without jurisdiction, that the construction given to paragraph 2 was erroneous in light of previous dealings between the parties and that the Magistrate did not afford her sufficient opportunity to present her case.
Held: A garage wall is not a "dividing fence" within the meaning of the Fences Act 1975, therefore the Magistrate had no jurisdiction to hear the matter.
Held: Assuming jurisdiction, that paragraph 2 was ambiguous. Having regard to the circumstances preceding the agreement, the expression "3.4 metres in height" ought to read as meaning "3.4 metres in height from the Defendant's side".
Fences Act 1975 s3, s12; Development Act 1993 s38; Magistrates Court Act 1991 s38(4)(a), s38(5), s38(7), s27(3); Magistrates Court Civil Rules 1992 r13(4)(b); District Court Rules r95.07(e), referred to.
Codelfa Constructions v State Rail Authority of New South Wales (1982) 149 CLR 337; City of Greater Geelong v Herd (1997) 94 LGERA 149, applied.
Fullston v Fennell & ACCLAW Pty Ltd (1996) 187 LSJS 71; Bank of Australasia v Palmer [1897] AC 540 ; Hoyts Pty Ltd v Spencer (1919) 27 CLR 133; Saggers v Sydney Market Authority (1998) 66 LGRA 42; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60; DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; Rankin v Scott Fell & Co (1904) 2 CLR 164; Horsfall v Braye (1908) 7 CLR 629; Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410; White v ANZ Theatres Ltd (1943) 67 CLR 266; Bank of New Zealand v Simpson [1990] AC 181; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; Giliberto v Kenny (1983) 57 ALJR 283, considered.

FENNELL v WRIGHT
[2006] SADC 88
Introduction

Mrs Wright has lived at 47 Bertha Street, Mount Gambier for over 40 years. Ms Fennell, the adjoining owner of contiguous land situated at 49 Bertha Street, purchased that property in 2004 and built a two-storey home on it in 2005. These neighbours fell into dispute as to…

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 Fennell v Wright

Details

AGLC: Fennell v Wright [2006] SADC 88
Case: [2006] SADC 88
Decision Date: 2 August 2006

CaseChat Overview and Summary

In the District Court of South Australia, Ms Fennell appealed a decision of the Magistrates Court, which had ordered that a garage wall on the boundary of her property be reduced in height to 3.4 metres. The Magistrate had ruled that the order was unambiguous, despite the fact that the wall was 4 metres in height when measured from the side of the adjoining property owned by Mrs Wright. Ms Fennell claimed that the order was made without jurisdiction, that it was erroneous, and that she was denied procedural fairness in the proceedings. The court found that a Magistrates Court had no jurisdiction to hear matters relating to garage walls, as they were not considered "dividing fences" within the meaning of the Fences Act 1975 (SA). It was concluded that the court below had no jurisdiction to enter the order it did, and that the order for review must be granted. The court also found that the term "3.4 metres in height" in the settlement agreement ought to be read as meaning "3.4 metres in height on Ms Fennell's side". An order was made for Ms Fennell to be paid $1200, plus the court costs of filing her application of $67, together with the airfare of her solicitor of $363.10.

Orders