Gilbert v Goodall - [2012] WADC 75

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GILBERT -v- GOODALL [2012] WADC 75

CORAM: COMMISSIONER GETHING

HEARD: 9 MAY 2012

DELIVERED : 25 MAY 2012

FILE NO/S: APP 94 of 2011

BETWEEN: TERENCE PETER GILBERT
Appellant
AND
MARTIN PETER ERNEST GOODALL
Respondent

Catchwords:

Magistrates Court appeal - Dividing fences

Legislation:

Dividing Fences Act 1961(WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court (Civil Proceedings) Rules 2005 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant: In person
Respondent: In person

Solicitors:

Appellant: Not applicable
Respondent: Not applicable

Case(s) referred to in judgment(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond (Bond Media case) [1990] HCA 33 (1990) 170 CLR 321
Butler v Bennett [2007] WADC 107
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Fitzpatrick v Garvey [2012] WADC 42
House v R [1936] HCA 40; (1936) 55 CLR 499
Jackson v Chrisp [2011] WADC 38
May & Butcher Ltd v R [1934] 2 KB 17
Regan v Gibson [2010] WADC 144
Smith v Hughes (1871) LR6QB 597
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

COMMISSIONER GETHING:

Background

By appeal notice dated 30 December 2011 the appellant appealed from a decision of his Honour Magistrate Sharratt dated 21 December 2011 giving judgment of $1,198.85 to the respondent on an application pursuant to the Dividing Fences Act WA 1961 (WA) (DFA).
The appellant and the respondent share an 8.5 m common boundary at the rear of both their houses in Duncraig.
Not long after purchasing his house, the respondent formed the view that the dividing fence between them required repair. Among other things, the fence was leaning along 4.5 m of its length, there were three large cracks in the fence which extended to the full height of the panels and the capping was broken or missing in several places. The fence was only 1.5 m above the ground on the respondent's side and 1 m above the ground on the appellant's side, giving rise to privacy concerns by the respondent.
The respondent sought to engage the appellant about repairing the fence from about autumn 2010. The appellant's position was:
(a)the fence had been in place for 26 years and the previous owners had never complained about it;
(b)there was no need for a retaining wall, but the appellant would remove some sand built up on his side of the fence to restore it back to ground level;
(c)the fence was a sufficient barrier for local council swimming pool requirements;
(d)he was happy to repair the fence by straightening it;
(e)he did not like the excessive height and plain nature of a colourbond fence; and
(f)he viewed the then current low fence covered by palms as being more pleasant.
The respondent's position was that:
(a)as the old fence was asbestos, it could not be realigned and had to be removed;
(b)his advice from fencing contractors was that the most cost effective manner to proceed was to remove the old fence and replace it with a retaining wall and 1.8 m colourbond fence; and
(c)a fibro cement fence would cost more, and also require a retaining wall.
On 1 October 2010, the respondent sent the appellant a letter setting out his position as I have summarised above.
On 3 October 2010, the respondent served on the appellant a document entitled 'Giving Notice to Fence – Western Australia'. This document is a pro forma document with spaces to complete. In this document, the respondent stated that he would like to fix the dividing fence by installing a 1.8 m high colourbond fence. He annexed a quote from ABC Fencing for $2,700. The quote on its face included a retaining wall. The document contained the following pre-printed clause as to timing:
If within 21 days of receiving this notice you do not agree to *~~repair~~ or *replace (*delete one) our adjoining fence I will apply as per the Dividing Fences Act 1961 to a Magistrates Court for an order that describes the type of fence to be constructed and how much each party will contribute.
The appellant responded by letter dated 24 October 2010, setting out his position which I have summarised above.
By email dated 4 November 2010, the appellant forwarded details of two quotes to the respondent. The first was from Garden Goodies and was for $1,980. The second was from Fiddes Fencing for $2,030 (or $1,760 at the then current height). Both quotes included retaining walls. The email concluded with the appellant stating that were the respondent to offer to pay for the cost of a 1.8 m fence, the appellant would 'reluctantly agree'. Otherwise 'I would agree to let the Magistrates Court decide'.
The respondent replied by email dated 4 November 2010, requesting a clarification and copies of the quotes.
On 15 November 2010, the respondent issued a second 'Giving Notice to Fence – Western Australia'. This referred to the Garden Goodies quote obtained by the appellant, in the amount of $1,980. The reference to '21' days in the standard notice clause (which I have quoted above), was deleted and replaced with '7' days. The word 'repair' was deleted.
On 25 November 2010, the appellant responded by email, to which the respondent replied by email on 26 November 2010. I deal with the terms of these emails below.
The respondent subsequently arranged for Fiddes Fencing to install a retaining wall and 1.8 m colourbond fence. The appellant allowed this to occur in circumstances I will set out below.
On 31 January 2011 the respondent commenced a minor case claim in the Magistrates Court.

Relevant provisions of the DFA

A 'dividing fence' is a fence that separates the lands of different owners whether the fence is on the common boundary of adjoining lands or on a line other than the common boundary': DFA s 5.
The owners of land either side of an adjoining fence are liable to join in or contribute in equal proportions to the repair of the fence: DFA s 14. This liability is subject to the provisions of DFA s 15. DFA s 15 provides:
15. Procedure to compel contribution to repair dividing fence
(1)The owner of land separated from adjoining land by a dividing fence may give a notice to the owner of the adjoining land requiring him to assist in repairing the fence.
(2)A notice given pursuant to subsection (1) may state that the owner giving the notice —
(a)is prepared to repair the fence at his cost and the cost of the owner to whom the notice is given, in equal shares;
(b)is prepared to permit the owner to whom the notice is given to repair the fence at the cost of both the owners, in equal shares; or
(c)is prepared to bear half of the cost of having the fence repaired by a third party,
and shall contain a proposal for repairing the fence upon the previous or other line, specifying the kind and extent of repairs and the line upon which they are to be effected.
(3)An owner who has been given a notice pursuant to subsection (1) shall, within 14 days of the receipt by him of the notice, advise in writing the owner giving the notice that —
(a)he is prepared to join in the repairing of the fence in such one of the alternative manners set out in the notice as he specifies in the advice;
(b)he disputes the need for repairing the fence and is not prepared to bear any portion of the cost of repairing the fence; or
(c)he objects to the kind and extent of repairs or the line upon which the repairs are to be effected.
(4)Where an owner who has been given a notice pursuant to subsection (1) advises, in writing, the owner giving the notice that he disputes the need for repairing the fence and is not prepared to bear any part of the cost of repairing it or objects to the kind and extent of repairs or the line upon which the repairs are to be effected as provided in subsection (3), the owner who gave the notice may apply to the court at the place nearest to the place where the fence is situated claiming that the owner of the adjoining land has failed to assist in repairing the fence in accordance with this section.
(5)The court on an application made pursuant to subsection (4) may by order determine —
(a)whether the fence is in need of repair;
(b)if so, the kind and extent of repairs and by whom the repairs are to be effected and the period within which they are to be carried out, and if the court thinks it is necessary, the court may determine —
(c)the line upon which the repairs are to be effected;
(d)the compensation to be paid by one owner to the other owner in consideration of any extra expense involved in the provision of additional fencing because of re‑alignment; and
(e)the compensation in the form of an annual payment to be paid by one owner to the other owner in consideration of loss of occupation of any of his land.
(5a)Where an order made under subsection (5) determines that the repairs to a fence are to be effected otherwise than on the common boundary of adjoining lands, the occupation of land on either side of that repaired fence in pursuance of or as a result of that order is not and shall not be deemed adverse possession as against the owner of the land or affect the title to or possession of the land except for the purposes of this Act.
(5b)When making an order under this section, the court shall be guided as to the kind and extent of repairs the court orders by the kind of fence in use in the locality where it is proposed to repair the fence, the purpose for which the lands that are or will be separated by the fence are used, and the type of sufficient fence (if any) prescribed under a local law made by a local government for that locality.
(6)An order of the court made pursuant to subsection (5) is final.
(7)Where an owner, who has been given a notice pursuant to subsection (1), fails to advise the owner giving the notice as provided in subsection (3) within 14 days after the receipt by him of the notice, the owner giving the notice may repair the fence and demand and recover from the owner to whom the notice was given, one-half of the cost of repairing the fence, but if —
(a)any dividing fence has been constructed partly by one owner and partly by another owner each shall bear the cost of repairing the part so constructed by him;
(b)any dividing fence or any portion thereof is damaged or destroyed by flood, fire, lightning, storm, tempest or accident the owner of the land on either side of the fence may immediately repair it without any notice to the other owner and is entitled to recover half of the expenses of so doing from the owner of the adjoining land;
(c)any dividing fence is damaged or destroyed in whole or in part by fire or by the falling of any tree or portion thereof the owner of the land through whose neglect the fire originated or caused damage or destruction to the fence, or the tree or part thereof fell, is bound to repair or renew as soon as practicable after the damage or destruction occurs the fence so damaged or destroyed.
(8)If an owner of land who is liable under subsection (7)(c) to repair or renew a dividing fence fails to do so, the owner of the adjoining land may repair or renew the fence and recover from the owner so liable and in default the whole of the cost of the repair or renewal.
The term 'repair' includes ‘re-erect and re-align’: DFA s 5.

Decision of Magistrate Sharatt

Magistrate Sharratt delivered written reasons. His Honour began by setting out a series of facts that were not in dispute:
(a)the fence in dispute was a boundary fence that separated the respondent's land from the appellant's land;
(b) the fence was in some need of repairs;
(c) the appellant did not agree that there was a need for extensive repairs and made an offer to straighten the fence and dig away land from against his side of the fence;
(d) it was the proposal of the respondent that the fence be pulled down and another fence be erected and that this fence should be retained and should be of a greater height then the previous fence; and
(e) the respondent caused a fence to be built after serving some notices on the appellant at a cost to him of $2,120.
His Honour then found that the structure erected by the respondent was a 'dividing fence' within the meaning of that term in DFA s 5. His Honour found that the retaining part of the fence was an ancillary function of the dividing fence, and is necessary to stop the further building up of soil against the dividing fence.
His Honour then found that there was a need to remove the old fence and to build a new one. In particular, his Honour found that the fence was leaning inwards along much of its length, had through soil creep moved away from the boundary line, was cracked in several places with some gaps and was generally in a bad state of repair. His Honour did not accept the appellant's argument that the asbestos panels could be pulled up and replaced to adequately repair the fence. His Honour commented that the 'the panels were split, the land built up against the fence needed retaining, the asbestos sheets were old and in a bad state of repair'.
Finally, his Honour found that the respondent had complied with the notice provisions of the DFA. In particular, his Honour found that the notice given by the respondent to the appellant dated 3 October 2010 complied with DFA s 15. His Honour referred to the provisions of DFA s 15(4), but said that the appellant's notice was too late. In particular, the appellant did not respond within 14 days of the respondent's notice. Consequently pursuant to DFA s 15(7), the respondent was entitled to repair the fence and demand and recover one half the cost of the fence.
Magistrate Sharratt ordered the appellant to pay the respondent $1,060 together with costs of $138.85.

Appeal framework

A claim pursuant to the DFA is within the general civil jurisdiction of the Magistrates Court, notwithstanding that the DFA still refers to the court of petty sessions: Jackson v Chrisp [2011] WADC 38, [23]; Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) s 6 and s 8; Magistrates Court (Civil Proceedings) Rules 2005 (WA) r 124. It may thus be the subject of an appeal to this Court: MCCPA s 40.
An issue arises in the present case as to whether the appeal is from a 'minor' case. This is significant as the rights of appeal for a minor case are more limited than that for a general claim: MCCPA s 32, s 40(2).
The respondent commenced the claim as a minor case. At a pre‑trial conference on 29 March 2011, Registrar Shadforth made notes as follows:
(a)'Form 4 Minor Case Claim herein be conducted as a Form 53 Application under conferring act in relation to the claim for repairs of the fence'; and
(b)'Part of claim that relates to Retaining Wall … that part of case conducted as a minor case'.
Form 53 is the form used to commence an application in relation to the jurisdiction of the Magistrates Court under 'other legislation' pursuant to MCCPA s 8.
The definition of 'minor case' relevantly includes 'a matter within the jurisdiction of the Court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the Court to deal with the matter': MCCPA s 26 (1). The DFA does not declare that the jurisdiction conferred is a minor case. The registrar was thus correct to treat the claim under the DFA as being in the general division of the court. As Magistrate Sharratt held that the issue of the retaining wall was part and parcel of the dividing fence, it is appropriate that I treat the appeal as being on that part of the claim within the general jurisdiction
An appeal pursuant to MCCPA s 40 (1) is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1). Neither party has asked the court to exercise its discretion to admit further evidence, so the appeal is to be determined on the evidence before Magistrate Sharratt: MCCPA s 40(4); DCR r 50(2), (3).
An appeal from a decision of a magistrate to the District Court is by way of rehearing: Regan v Gibson[2010] WADC 144 [7]; Butler v Bennett[2007] WADC 107 [10]. It is thus necessary for the appellant to demonstrate error in the court below: Allesch v Maunz [2000] HCA 40 [23]; (2000) 203 CLR 172; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[2000] HCA 47 [14]; (2000) 203 CLR 194; House v R [1936] HCA 40; (1936) 55 CLR 499, 504-505. A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law: Australian Broadcasting Tribunal v Bond (Bond Media case) [1990] HCA 33 (1990) 170 CLR 321, 366 – 367.

Grounds of appeal

At the directions hearing in the appeal on 17 April 2012, the registrar granted the appellant leave to amend his grounds of appeal in the following terms:
The question of the timeliness of the response to the first or second Notice to Fence was not mentioned in the Claim and as a result no evidence was submitted or called for in this regard. Further the question was not examined or raised during the trial.
The first mention of any question as to the timeliness of the response was made when the Magistrate stated it as the reason for ruling in favour of the Claimant in his Reason for Decision received some 5 days later.
However, if it had been, simple examination of the first Notice to Fence which was submitted by the Claimant as evidence would have revealed that it clearly called for a response with in 21 days which was complied with by myself as Defendant.
In any case the Fence proposed was a new fence since it differed in material, height and added a retaining wall and therefore Dividing Fences Act Sect 9 Subsect 1 applies giving 21 days for response.
There are thus two issues to determine:
(a)the validity of the notices of appeal, in particular, whether the preconditions for the right to recover in DFA s 15 were established, including the issue of whether the fence was a 'new' fence or a 'repair' for the purposes of the DFA; and
(b)whether the magistrate breached natural justice in not hearing from the parties on the issue of the timeliness of response to the first and second notices.
It is apparent that the following facts are not in dispute:
(a)that the fence in dispute is a 'dividing fence' within FDA s 5;
(b)that the fence was subsequently erected by the respondent; and
(c)the new fence cost $2,120, including the cost of the retaining wall.
In the hearing before me it was also not in dispute in the appeal that the fence required repair.

Validity of the notices

In the present case, the respondent was of the view that the dividing fence between himself and the appellant was damaged and needed to be replaced. The term 'repair' in DFA s 14 and s 15 includes 're‑erect' and 're‑align'. The proposal contemplated by the appellant was thus for the 'repair' of the existing dividing fence. The fence is not a 'new' fence within DFA s 9 as asserted by the appellant. The relevant regime in the DFA is pt III.
The liability of adjoining owners to contribute to the cost of repairing a fence in DFA s 14 is 'subject to the provisions of section 15'. In other words, there is no liability on an adjoining owner against whom a claim is made unless the procedures of DFA s 15 have been complied with.
The procedures in DFA s 15 commence with the provision of a notice by one of the two adjoining owners. The respondent served two notices on the appellant which purported to comply with DFA s 15 (1). The contents of the notice are set out in DFA s 15 (2). The first part of DFA s 15 (2) is not mandatory: a notice 'may' state the provisions of pars (a), (b) and (c). The second part is mandatory: 'shall contain a proposal for repairing the fence upon the previous or other line, specifying the kind and extent of repairs and the line upon which they are to be effected'. Each notice complied with the mandatory requirement in DFA s 15 (2).

The owner upon whom the notice is served has 14 days from receipt to prepare a response: DFA s 15 (3).
The first notice from the respondent was dated 3 October 2010. The notice specified 21 days as set out in the standard form, not the 14 days set out in DFA s 15(3). The appellant responded in writing by letter dated 24 October 2010, within the 21 days.
The issue then arises as to the consequence of this error. For the reasons which follow, I do not need to resolve this issue.
As I have set out above, after the receipt of the 24 October 2010 letter, the parties continued to correspond.
There was then a second notice dated 15 November 2010. This notice referred to the quotes arranged by the appellant, and specifically to the quote from Garden Goodies for $1,980. The appellant responded by email of 25 November 2010, within the 14 days required by DFA s 15 (3).
In my view, the operative notice for the purposes of the DFA was the second notice. The sending of the second notice with an amended proposal must be taken to have made the first notice redundant for the purposes of determining whether the initial owner's right in DFA s 15 is to:
(a)commence proceedings to have the issue of whether the fence required repair and, if so, how, determined by a magistrate as set out in DFA s 15 (4); or
(b)proceed to repair the fence as set out in DFA s 15 (7).
In the present case, the claim commenced was in relation to an amount arising from a quote which was received after the first notice was sent. The amount claimed was closer to the proposal set out in the second notice, and rejected by the appellant.
It would be an undesirable outcome for the initial owner to be able to choose from a series of prior notices which to rely on for the purposes of DFA s 15. In the present case, it was clear that there was a dispute, and the DFA required the respondent to refer the matter to a magistrate for determination pursuant to DFA s 4.

Disposition of the appeal

For the reasons I have set out above, I consider that Magistrate Sharratt made an error in considering the notice dated 3 October 2010 to be the operative notice for the purposes of the DFA. The valid notice was that dated 15 November 2010, to which the appellant responded within 14 days. The precondition to the right of the appellant in DFA s 15 (7) to repair the fence and claim contribution from the appellant did not arise. That part of the respondent's claim that arose under the DFA should have been dismissed.
It follows that the decision of Magistrate Sharratt should be set aside. I do not need to consider the remaining ground of appeal.
The powers of the District Court on appeal set out in MCCPA s 43 include the power to 'give any judgment and make any order that the Magistrates Court could have given or made'.
I gave some thought to whether I could treat the claim under review as having been made pursuant to DFA s 15 (4), that is, for a magistrate to determine ahead of any repairs being carried out whether the fence needed repair and, if so, the kind and extent of the repairs. However, the statutory right to a contribution in DFA s 14 is 'subject to the provisions of s 15'. As the provisions of DFA s 15 have not been complied with, I do not consider that there is any power to make an order under DFA s 15(4).
The respondent's claim was brought as a minor claim and is not couched in terms of an application under the DFA. The claim is wide enough for the magistrate at first instance, and thus this court on appeal, to consider the rights of the parties at general law. In view of the amount in dispute and length of time the dispute has been running to date, it is appropriate that I proceed to determine the claim under general law. I heard submissions from the parties on all aspects of the claim, not just that part which related to the DFA, including on the issue of whether there was a contract between the parties as asserted by the appellant.

Determination at general law

It is appropriate to commence the analysis with the position in contract. Nothing in the DFA affects any contract or agreement made between the owners of adjoining land 'relative to the cost of erecting or repairing dividing fences': DFA 6.
In his statement of minor case claim dated 12 April 2011, the respondent stated that in 'an email [the appellant] agreed to the fence replacement and the height to be 1.8 m as long as he did not pay for it'.
In his statement of defence to minor case claim dated 25 May 2011, the appellant stated that the respondent 'by his actions accepted my offer that if he paid the cost he could construct the fence and retaining wall as he desired'.
The relevant email is that dated 25 November 2010, containing the following:
I think my position regards the fence is clear. I have offered to repair the existing even thou [sic] it was made to lean over by the rubber tree on our joint neighbours property or reluctantly agree to your changing the fence height and type at your cost which I have assisted you with by obtaining additional quotes saving you a considerable sum.
The respondent responded by email dated 26 November 2010, rejecting this offer, and stating that he had legal advice to the effect that the appellant needed to pay 50% of the cost of repairing the fence. He offered to go to mediation. He then gave a date by which legal action would be commenced if he had no response.
The respondent in his statement of minor case claim stated that be subsequently arranged for a contractor to do the work, and paid the invoice in full.
In his statement of defence to minor case claim the appellant stated:
The next communication from the claimant was during December 2010 where he asked for a contact telephone number and informed me that he had arranged for a contractor to do the work in the next few weeks and that the contractor would need access to my property. I assumed that the claimant had accepted my last offer and was arranging for the works as he desired. The contractor completed the works in January. The next thing that I received was a Minor Case Claim dated 31^st January 2011 the he was demanding I pay half the cost of the construction plus court costs.
The appellant's position that the fence was replaced pursuant to an agreement between them was put by him to the respondent in cross examination at the trial of the action (ts 10-11).
The issue then arises as to whether there was a concluded contract between the parties. At the heart of a contract is a concluded bargain. In the words of Lord Dunedin in May & Butcher Ltd v R [1934] 2 KB 17, [21]:
To be a good contract there must be a concluded bargain, and a concluded bargain is one which settles everything that is necessary to be settled and leaves nothing to be settled by the parties.
At a general level of principle, the High Court has affirmed that the rights and liabilities of the parties to a contract are to be determined objectively. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, Glesson CJ, Gummon, Hayne, Callinan and Heydon JJ described the principle as follows (page 181 [46]):
This Court, in Pacific Carriers Ltd v BNP Paribas [[2004] HCA 35; (2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction...
The principle of objectivity also governs the questions of whether a contract has, in fact, been made. Thus, in Smith v Hughes (1871) LR6QB 597, 607, Blackburn J stated:
If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would equally be bound as if he had intended to agree to the other party's terms.
In Fitzpatrick v Garvey [2012] WADC 42 I reviewed the authorities on the issue of when a concluded contract arises, and set out the following summary [288]:
(a)there will be no contract unless there is an actual meeting of minds between the parties said to be in contact on sufficient terms for there to be a concluded bargain;
(b)a party may give evidence of his or her actual subjective intention;
(c)the evidence in (b) is not determinative of the existence, nor non‑existence, of a binding contract;
(d)evidence of the actual subjective intentions of a party is to be treated with caution as the parties may tailor their evidence to suit their commercial purposes;
(e)the key question is whether a reasonable person observing the interaction of the parties would consider the parties to have agreed to sufficient terms to create a contract between them; and
(f)in answering the question in (e), the court can look to all the surrounding circumstances of the interaction said to give rise to the contract, including documents, words and conduct of the parties before, during and after the interaction said to give rise to the contract.
In my view a reasonable person observing the interaction of the appellant and the respondent would consider the parties to have agreed to sufficient terms to create a concluded contract between them. This is for seven reasons:
(a)the terms were clear – the appellant would waive his objections to height, style and the need for a retaining wall, and the respondent would pay all the costs;
(b)the last communication from the respondent prior to work commencing was to the effect that if he had no satisfactory response, he would commence legal proceedings, not that he would undertake the work;
(c)the work was undertaken without legal proceedings having first been commenced;
(d)the work required access to the appellant’s property, access which he gave on the assumption that the respondent had, in effect, changed his mind and accepted the appellant’s offer;
(e)the appellant withdrew his objection to the height, style and the need for a retaining wall as per the agreement;
(f)the respondent paid for the works, as per the agreement; and
(g)the subjective intention of the respondent to get the work done and maintain his claim for a 50% contribution in the face of an ongoing objection was contrary to the provisions of the DFA and was contrary to the balance of the conduct of the parties.
I am thus of the view that, under general law, the respondent's claim ought to have been dismissed on the basis that there was an agreement for the fence to the replaced at the respondent’s expense, but to the respondent's specifications.

Final orders

The appropriate orders disposing of the appeal are:
(a)the appeal be allowed and the decision of Magistrate Sharratt dated 21 December 2011 be set aside; and
(b)in lieu therefore the respondent’s claim be and is hereby dismissed.
I will hear from the parties as to costs.