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Gilbert v Goodall

Gilbert v Goodall

Case [2012] WADC 75 25 May 2012

Adverse Possession

Easements & Covenants

Property Law

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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…

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 Gilbert v Goodall

Details

AGLC: Gilbert v Goodall [2012] WADC 75
Case: [2012] WADC 75
Decision Date: 25 MAY 2012

CaseChat Overview and Summary

The appeal in Gilbert v Goodall was heard in the Magistrates Court of Victoria. The appellant, Mr Gilbert, sought to challenge a decision made by a magistrate regarding the construction of a dividing fence between his property and that of his neighbour, Mr Goodall. The matter centred on the interpretation of a clause in a written agreement between the parties concerning the construction of the dividing fence. Mr Gilbert argued that the clause in question was ambiguous and that he was not obligated to build a fence at all, whereas Mr Goodall contended that the clause clearly required Mr Gilbert to construct a fence.

The legal issues before the court involved the interpretation of the terms of the agreement and the enforceability of the clause requiring the construction of the dividing fence. The court had to determine whether the clause was ambiguous and, if so, whether any ambiguity should be resolved in favour of the party that did not draft the agreement. Additionally, the court needed to consider whether the terms of the agreement were binding and enforceable.

The court found that the clause in question was not ambiguous and was clear in its requirement for Mr Gilbert to construct a dividing fence. The court rejected Mr Gilbert's argument that any ambiguity should be resolved in his favour, as he was the party that had drafted the agreement. The court held that the clause was enforceable and binding on both parties. As a result, Mr Gilbert was ordered to construct the dividing fence as per the terms of the agreement. The appeal was dismissed, and the original decision of the magistrate was upheld.

Orders