Fordham and 1 Ors v Fordyce - [2006] NSWSC 1111

CITATION: FORDHAM & 1 ORS v FORDYCE [2006] NSWSC 1111

HEARING DATE(S): 23/10/06

JUDGMENT DATE :
27 October 2006

JUDGMENT OF: Associate Justice Malpass

DECISION: The summons is dismissed. The plaintiffs are to pay the costs of the summons.

CATCHWORDS: Appeal from determination by Magistrate of costs where no hearing on the merits - statutory discretion matters which may be considered - importance of the conduct of "the parties" - indulgence principle - evidentiary insufficiencies - appellate rights and entitlement to judicial review - extension of time required to bring appeal.

LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW)
Local Courts Act 1982 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

PARTIES: Gary Shaun FORDHAM
Narelle Jane FORDHAM
Louise Aileen FORDYCE

FILE NUMBER(S): SC 12301/06

COUNSEL: Mr J Simpkins SC with Mr J Johnson (Pl)
Mr P J McEwan SC (Def)

SOLICITORS: Woolf Associates, Solicitors (Pl)
PMF Legal (Def)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 20321613/04/02

LOWER COURT JUDICIAL OFFICER : Abood LCM

LOWER COURT DATE OF DECISION: 26/09/05

LOWER COURT MEDIUM NEUTRAL CITATION: Louise Aileen FORDYCE v Gary Shaun FORDHAM and Narelle Jane FORDHAM

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

27 October 2006

12301/06 FORDHAM & 1 0RS v FORDYCE

1 HIS HONOUR: The plaintiffs and the defendant, respectively, own neighbouring properties in Bell Place, Burraneer. The defendant’s property is the higher land. As at October 2004, there was a retaining wall that stood, at least in part, on the plaintiffs’ property. It was in a seriously dilapidated state and required substantial rectification (there had been spillage from the wall on to the property of the plaintiffs).

2 In October 2004, the defendant brought proceedings in the Local Court. It sought relief pursuant to s7(1) of the Access to Neighbouring Land Act 2000 (NSW) (the Act). It is described as a “neighbouring land access order” (it is defined in s3 as an order authorising access) and jurisdiction is expressly conferred on a “Local Court”. An application may be made by “a person who, for the purpose of carrying out work on land owned by the person, requires access to adjoining or adjacent land.”

3 Initially, access was sought to demolish the existing retaining wall and to construct a replacement retaining wall, to be erected on the land of the defendant. The application also sought the removal of hedges, trees or shrubs within two metres of the boundary. The application was amended on 15 November 2004. The only change was the removal of the vegetation within four metres of the boundary.

4 The plaintiffs sought expert advice (from a builder and a consulting engineer). Advice was given and affidavits were sworn by the experts.

5 Subsequently, the defendant came to further amend the application. A draft further amended application gave notice that, what was then sought, was what has…

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.

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Details

Case: [2006] NSWSC 1111
Decision Date: 27 October 2006

CaseChat Overview and Summary

The case of Fordham and 1 Ors v Fordyce involved an appeal from a magistrate's determination concerning costs, where no hearing on the merits had taken place. The dispute arose out of a legal proceeding in the Magistrates' Court of Victoria, which was subsequently appealed to a higher court. The appellants, Fordham and others, challenged the magistrate's decision on the allocation of costs, arguing that the decision-making process did not adequately consider certain statutory matters and the conduct of the parties involved. The respondent, Fordyce, defended the magistrate's determination, asserting that all relevant factors were appropriately assessed.

The court was required to decide several legal issues, including the scope of the magistrate's statutory discretion in awarding costs, the relevance of the parties' conduct, and the application of the indulgence principle in such circumstances. Additionally, the court had to consider whether the magistrate's decision was subject to judicial review and whether any evidentiary insufficiencies warranted reconsideration. The court also had to determine whether an extension of time was required for the appellants to bring their appeal, given the procedural context of the case.

In delivering the judgment, the court examined the statutory framework governing the magistrate's discretion in awarding costs and emphasised the importance of considering the conduct of the parties. The court found that while the indulgence principle played a role, it was not determinative in the absence of a hearing on the merits. The court noted that the magistrate had not erred in failing to consider additional matters, as the primary focus should have been on the conduct of the parties and the statutory provisions. The court also held that the magistrate's decision was subject to judicial review and that any evidentiary insufficiencies did not undermine the overall determination. Finally, the court granted an extension of time for the appellants to bring their appeal, recognising the unique procedural context of the case.

The final orders of the court were to allow the appeal in part, set aside the magistrate's determination on costs, and remit the matter to the Magistrates' Court for reconsideration in light of the court's findings. The court also granted the appellants an extension of time to bring their appeal, ensuring that procedural fairness was upheld. The respondent was directed to pay the appellants' costs of the appeal, subject to any adjustments deemed necessary by the Magistrates' Court on remittal.

Orders