Halvorsen v Baumgartner
[2014] WADC 129
•19 SEPTEMBER 2014
HALVORSEN -v- BAUMGARTNER [2014] WADC 129
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 129 | |
| Case No: | APP:58/2014 | 29 AUGUST 2014 | |
| Coram: | BRADDOCK DCJ | 19/09/14 | |
| PERTH | |||
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Appeal dismissed | ||
| PDF Version |
| Parties: | STEIN HALVORSEN KERRY BAUMGARTNER MARINO BAUMGARTNER |
Catchwords: | Dividing fences Storm damage Repairs Contribution of adjoining landowner Dividing Fences Act 1961 |
Legislation: | Dividing Fences Act 1961, s 7, s 14, s 15(2) & s 15(7)(b) |
Case References: | Basell v Meredith (Unreported, WASC, Library No 970449, 15 August 1997) |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
KERRY BAUMGARTNER
First named Respondent
MARINO BAUMGARTNER
Second named Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : GLUESTEIN SM
File No : JOON/GEN 2622 of 2013
Catchwords:
Dividing fences - Storm damage - Repairs - Contribution of adjoining landowner - Dividing Fences Act 1961
Legislation:
Dividing Fences Act 1961, s 7, s 14, s 15(2) & s 15(7)(b)
Result:
Extension of time granted
Appeal dismissed
Representation:
Counsel:
Appellant : In person
First named Respondent : In person
Second named Respondent : In person
Solicitors:
Appellant : Not applicable
First named Respondent : Not applicable
Second named Respondent : Not applicable
Case(s) referred to in judgment(s):
Basell v Meredith (Unreported, WASC, Library No 970449, 15 August 1997)
- BRADDOCK DCJ:
Introduction
1 This appeal concerns a dividing fence between properties owned by Mr Stein Halvorsen, the appellant, and Mr and Mrs Baumgartner, the respondents in Waterson Drive, Hillarys. There was an older style 'fibro' fence which had been standing between the two properties for many years (the dividing fence). Adjacent to the property of Mr and Mrs Baumgartner and Mr Halvorsen was a property owned by the Skinners. The Skinners also had a fence dividing the Skinners' property from that of both the Baumgartners and Mr Halvorsen (the Skinner fence). The two fences were at right angles to each other. The Skinner fence was of a different construction. It had a stone lower part which was part of the estate boundary wall, together with wooden screening on the top part between intermittent pillars.
2 Prior to July 2013, the dividing fence between the Halvorsen and the Baumgartner property was standing and performing its function. The dividing fence stood on land falling away from the houses and there were upper and lower sections. There were some cracks in the upper section of the dividing fence.
3 Mr Halvorsen had noticed, prior to July 2013, that the Skinner fence and pillars had a crack or cracks in it. Mr Halvorsen told Mr Skinner that he had to repair the fence. Nothing was done. On 16 July 2013 there was a storm. During that storm the Skinners fence fell down, landing upon the lower section of the dividing fence which was pushed or pulled over. The Baumgartners found it lying on the dividing fence in the morning after the storm. Insurers were notified, but otherwise nothing was done.
4 A second storm followed on 22 September 2013. After that storm, the upper section of the dividing fence also was found to have fallen down. So there was no dividing fence at all between the Baumgartners' and Mr Halvorsen's property. The Baumgartners organised a temporary fence to be erected. Mr Halvorsen owns a swimming pool. The Baumgartners obtained quotes for the repair or replacement of the fence.
5 The Baumgartners obtained quotations for the work on 14 October 2013 and emailed those quotations to Mr Halvorsen on 20 October 2013. Mr Halvorsen replied on 21 October saying he was not going to pay. The Baumgartners authorised the work, which was completed on 18 November 2013, they paid the bill, in full, on 19 November 2013. The fence was replaced with a more modern Colorbond dividing fence. Mr Halvorsen still refused to pay after the work was done.
6 On 19 December 2013 the Baumgartners lodged a claim in the Magistrates Court at Joondalup for $1,400 plus costs under the Dividing Fences Act 1961 (DFA), representing 50% of the price paid under the lower quotation of which they had been supplied.
The proceedings
7 The matter proceeded to a hearing on 15 May 2014, before Magistrate Gluestein at Joondalup. Mr Baumgartner gave evidence, as did Mr Halvorsen. Mr Halvorsen argued that the damage to the lower section of the dividing fence did not occur as a result of the storm, but because of the Skinners fence falling upon it. This therefore was to be regarded as 'impact damage'. In relation to the upper section of the dividing fence, Mr Halvorsen argued that trees on the Baumgartners' side of the fence pushed the upper section of the dividing fence over. He also complained that upon that part of the fence falling over, damage was caused to the edge of his swimming pool. Mr Halvorsen put to the magistrate that all that was needed was a repair of the existing 'super 6' type fence. Mr Halvorsen put a number of photographs by way of illustration of his argument before the learned magistrate.
The magistrate's findings
8 The magistrate, having reserved his decision, gave judgment on 23 May for the Baumgartners. The magistrate found:
1. The fence between the two properties of the Baumgartners and Mr Halvorsen was a dividing fence under s 5 of the DFA.
2. He considered the claim to be brought under s 15(7)(b) of the DFA, which concerns, in part, storm damage.
3. Mr and Mrs Baumgartner had given Mr Halvorsen notice of their intention to repair the fence, after the second storm, although under the s 15(7)(b) such notice was not required.
4. The issue was whether the fence had been felled by the two storms.
5. He accepted the evidence of the Baumgartners that the storms brought about the down fall of the fence.
6. He referred to the photographs showing the extent of the damage.
7. He noted that under s 15(7)(b) the Baumgartners were entitled to repair the fence, that they obtained proper quotations, and that because of the extent of the damage it was necessary to replace the fence.
8. Under s 14 of the DFA, Mr Halvorsen was therefore liable to contribute one half of the cost of the repair in the sum of $1,400.
9 The magistrate made orders consistent with those reasons, giving judgment for the Baumgartners in the sum of $1,542.65 inclusive of costs.
The appeal
10 On 13 June 2014, Mr Halvorsen filed a notice of appeal in this court. On 29 July 2014, the deputy registrar of this court made orders, permitting Mr Halvorsen to substitute grounds of appeal and inviting an application for extension of time within which to appeal. He also made procedural orders and listed the matter for hearing on 29 August 2014.
11 The grounds of appeal so substituted appear in a document entitled 'Further clarification of grounds for appeal':
1) – No new different fence required.
LAW COURTS MUST FOLLOW DECISINS [SIC] OF HIGHER COURTS
(ref. Legal Aids Magistrates Court Appeal Kit, page 7, second paragraph under CASES)
The magistrate failed to follow the supreme courts decision that a complete new fence of different material is not a repair, nor a replacement for existing dividing fence, and I (other neighbour) shall not share in cost of such a new fence.
(ref. WA Supreme Court in Basell v Meredith 1997 Lib No: 970440 [sic], also Building Commissions guide to Dividing Fences page8 notes, and page 31).
2) Not taking cheaper repair into account
2a) The magistrate failed to take the repair of the existing fence into account
French Fencing Contractors Quoted $570 for repair of lower fence, and $550 for repair of upper fence, all in the same material as existing sufficient fence. This is far cheaper than the cost of demolishing all of the existing fence, and erect a completely new fence with another material, quoted $2800.
(ref. Building Commissions Dividing fences guide: Last 4 lines on page 2, page 24 and last part of page 28).
2b) The magistrate [sic] failed to take the cost of pavings, retaining wall and steps along the new fence line due to the different material and new lining of upper fence, as well as my pool edge repaier. [sic] into account
A man at hand's quote for this was $511.50.
2c) The magistrat [sic] failed to take the cost of an earlier repaier [sic] of upper fence into account
Baumgartners to pay for this repair half the cost of $550 beeing [sic] $275.
(ref. Building Commissions Dividing fences guide: Last part on page 27).
3) – Upper Fence damaged by Baumgartners retaining wall and trees. Lower fence damaged by Skinners fence.
3a) The magistrate did not take Skinners faulty column, being the real reason for the lower fence failure, into account.
Skinners Column was completely loose, and could not support any wind on the fence. Therefore his screen fence fell down and crushed lower part of our dividing fence. If he had repaired and maintained his fence, it would not have fallen down, and our lower fence would not have had any damage.
(ref. Building Commissions Dividing fences guide: First part on page 29, and section 51 in the WA law Commission report on dividing fences act).
3b) The magistrate did not take the cracked panel in upper part of the fence, being the real reason for the upper fence failure, into account.
Baumgartners retaining wall moved and together with his tree, caused 3 vertical cracks in the fence panel. If he had repaired and maintained the panel, the upper fence would not have fallen down.
(ref. Building Commissions Dividing fences guide: First part on page 29, and section 51 in the WA law Commission report on dividing fences act).
Extension of time
12 At the hearing of this matter on 29 August, I extended his time to appeal to the date of filing of his notice of appeal. Mr Halvorsen had filed an application requesting such extension. The extension required was one day. He had misunderstood the requirements. Given that Mr Halvorsen was unrepresented and had otherwise been diligent in his pursuit of the matter, I was of the view that the prejudice to the Baumgartners was not such as to outweigh the requirements that the appeal be determined, in the interest of justice.
Appeal to the District Court
13 An appeal to this court from the Magistrates Court is to be by way of rehearing. Pursuant to s 47(4) of the Magistrates Court (Civil Proceedings) Act 2004 this court must decide the appeal on the material and evidence that were before the Magistrates Court, and any other evidence that it gives leave to be admitted. Under s 40(5), leave may be only granted under s 40(4)(b) in exceptional circumstances. No application was made before me seeking leave that any other evidence be considered in the matter.
14 On the appeal, I had before me the transcript of proceedings in the Magistrates Court, both of the hearing and the judgment, the pleadings in the lower court, and the documents and photographs submitted to the magistrate, together with the documents filed in this court and the submissions of both parties.
Dividing Fences Act (1961)
15 Under s 5 of the DFA, a dividing fence means a fence that separates the lands of different owners, whether the fence is on the common boundary of adjoining lands or a line other than the common boundary. It was not disputed, that the fence in issue was a dividing fence between the properties of Mr Halvorsen and Mr and Mrs Baumgartner.
16 Part 2 of the DFA, s 7 to a 13, enables land owners to compel their neighbours to contribute equally to the cost of construction of dividing fences. Sections 7 to 12, inclusive, deal with the circumstance in which adjoining lands are not divided by a sufficient fence, whereas s 13 deals with the circumstance in which adjoining lands are so divided.
17 Part 3 deals with the repair of dividing fences. Section 14 provides that when a dividing fence is in need of repair, the owners of land on either side of the fence are liable, subject to the provisions of s 15 to join in or contribute in equal proportions to the repair of the fence. Section 15 deals with the procedure to compel contribution to repair a dividing fence. It provides in s 15(1) that an owner of land may give notice to the owner of adjoining land requiring him to assist in repairing the fence. If given such notice, an owner had 14 days to advise in writing one of three things:
(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 affected.
18 Where such a response is received, s 14(4) makes a provision for the owner giving notice to make a complaint to Magistrates Court claiming that the adjoining owner has failed to assist. Where that occurs, s 14(5) provides that the court can determine whether the fence is in need of repair and if so, what kind and extent of repairs and by whom the repairs are to be effected and when they are to be effected. The court can also determine, if necessary, the line upon which the repairs are to be affected and other matters.
19 Section 15(7) provides for circumstances in which the owner may repair the fence and demand and recover from the other owner one half of the cost of repairing the fence, including three situations in which different circumstances arise. Section 15(7)(b) provides:
any dividing fence or any portion thereof is damaged or destroyed by flood, fire, lightening, 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.
The application to this fence
20 Mr Halvorsen disputed the cause of the damage to the fence. The learned magistrate found against Mr Halvorsen on the question of causation. There were, during the course of submissions, a number of exchanges between Mr Halvorsen and the learned magistrate.
His Honour: I have heard from Mr Baumgartner that the fence seemed like it was pretty well OK.
Mr Halvorsen: Yes.
His Honour: Do you agree with that?
Mr Halvorsen: Yes, yes, yes, the fence was perfectly alright, all over except for this crack.
His Honour: You say there was a crack.
Mr Halvorsen: Yes, that has developed over many years. (ts 11)
Mr Halvorsen: It is the upper fence that was cracked, not the lower fence.
His Honour: Yes.
Mr Halvorsen: But all of the fence was also cracked.
His Honour: Yes. But after the storm –
Mr Halvorsen: Yes
His Honour: The damage occurs?
Mr Halvorsen: Because –
His Honour: So the damage occurs as a result of the storm.
Mr Halvorsen: No, as a result of that fence falling on top of it and cracked it. (ts 12)
21 The magistrate asked Mr Halvorsen whether he was denying the storm damage:
Mr Halvorsen: Yes, I deny that the storm damaged it.
His Honour: What damaged the fence therefore if it wasn't the storm?
Mr Halvorsen: No it was the impact of our neighbour's fence falling on it.
His Honour: Yes,
Mr Halvorsen: Impact of neighbour's fence falling on it because the storm was parallel with the fence.
His Honour: What caused the Skinners' fence to be damaged?
Mr Halvorsen: That - that was the storm because the really cause of it was because he had a loose column and didn't repair it.
- At which point his Honour referred Mr Halvorsen to s 15(7) of the Act: (ts 14)
His Honour: It was damaged by the storm damaging the Skinner fence.
Mr Halvorsen: Yes, the Skinner fence.
His Honour: The storm damages the Skinner fence.
Mr Halvorsen: The storm took Skinner fence.
His Honour: The Skinner fence falls, and causes your fence with the Baumgartners to be damaged.
Mr Halvorsen: To crack. To crack it. It was one tonne. It fell with one tonne on top of it.
His Honour: But the trigger for all of that?
Mr Halvorsen: Was the storm that hit his fence.
His Honour: Why are we here today?
Mr Halvorsen: Well, I don't know because –
His Honour: Your logic is a bit different from mine.
Mr Halvorsen: The fence was damaged in two parts. First time, as you see the two pieces falling off this - this off the panel by the big tree you can see on picture number 1. Now if you go to picture number - number 5, 6 and 7 next page this picture was taken a few years ago of the cracks in the fence. And picture number 8 shows the fence – all the fence standing but the particular damaged panel and it was pushed down by that big tree. (ts 16)
His Honour: Which happened in the storm.
Mr Halvorsen: Yes, that is possible, yes but the fence – but the fence didn't have the storm, the tree knocked the fence because the fence is in position – the tree pushed it over due to the storm yes. Then a few days later the rest of the trees - picture number 8 there – pushed the rest of the fence over and if you can see from more pictures you can see them pushed over on picture 11, the rest of the fence now has come down – can see the trees behind and on page number 12 we see them lying down and you see how the trees have been damaged, but they have banged on the fence for a very long time, many years.
23 The learned magistrate accepted the evidence of the Baumgartners, which was simply to the effect that the upper portion of the fence was standing before the September storm and not thereafter.
24 In my view, the logic of the magistrate is impeccable.
The grounds of appeal
Ground 1
25 The first amended ground of appeal complains that the magistrate did not follow the decision of the Supreme Court. That, when explored in submission, related to the decision of Basell v Meredith (Unreported, WASC, Library No 970449, 15 August 1997). This was a matter raised by Mr Halvorsen before the magistrate, who distinguished the Basell matter as it was not concerned with the same section of the DFA. Having considered Mr Halvorsen's submissions, I am of the view that the magistrate was not in error in that regard. A reading of Basell v Meredith and the authorities referred to in it, show that the case concerned neighbours who had corresponded over a fence renewal for some years and could not agree upon the style of the fence. There was no question of any storm damage. Having failed to agree, one party unilaterally built a brick wall in place of an old picket fence and claimed half of the cost pursuant to s 13 DFA. The magistrate dismissed Mr Basell's claim. He found that the fence had been very dilapidated and was not performing the functions of a dividing fence. He found that what occurred was a repair for the purposes of s 15 and not the construction of a dividing fence under s 13 of the Act.
26 On appeal to the Supreme Court, Justice Heenan agreed that the magistrate was correct that the building of the wall did not constitute the construction of a dividing fence under s 13 of the DFA, but for different reasons. The appeal failed. In discussing the relevant case law, Justice Heenan was considering different circumstances from those prevailing in the situation between the Halvorsen and the Baumgartners' properties. In the former case a wooden picket fence was replaced by a brick wall. Justice Heenan was of the view that that was not a case of a repair. But that was an entirely different situation. The decision is authority for the proposition that s 13 applies only when a new fence is constructed by one owner before the adjoining land is built upon or occupied substantially. In Basell it might have been that the picket fence had been capable of repair, but the neighbours could not agree how it should be done.
27 There is no basis to find error by the learned magistrate failing to follow a decision of the Supreme Court. Ground 1 fails.
Ground 2
28 Mr Halvorsen claimed that the magistrate failed to take into account a quotation that he had obtained for repair of the lower fence and a repair of the upper fence. This argument was not relevant under s 15(7)(b). It was not a matter argued before the learned magistrate. It appears from the documents and from argument before me that the quotations were not obtained until after the repairs had been effected. Mr Halvorsen also complains that the magistrate did not take into account the cost of other repairs along the fence, or earlier repairs that he had made to the fence. Those matters in my view were not relevant to the issue before the magistrate which was the work done by the Baumgartners to dividing fence. There is no error disclosed by the magistrate not taking them into account.
Ground 3
29 This ground reverts to the argument of causation, which have been dealt to above. Mr Halvorsen pressed the causation argument on appeal as he did before the magistrate. However, as can be seen from the portions of the magistrate's exchanges with Mr Halvorsen, the magistrate applied straightforward logic in relation to causation: before the first storm, the whole fence was standing; after the first storm, the lower part of the fence was not standing. After the second storm, none of the fence stood. Accordingly, the immediate cause of the damage to the fence was the storms. Accordingly, ground 3 is not made out.
30 In emailing Mr Halvorsen as he did, Mr Baumgartner would satisfy the requirement for notice under s 15(2), which applies to repairs to fences generally. In response to that notice, Mr Halvorsen could have disputed either the need for repair, or the extent of the repair. He did not do so. In his email in reply, he said:
We have no storm damage. Upper fence was tree and retaining wall damaged. Lower fence was cracked when neighbour's fence fell on it. Upper fence is your responsibility and lower fence is Skinners' responsibility. Therefore, it is nothing for me to pay.
31 He went on to make various stipulations about how the fencing should be done and raised other issues, not relevant under the DFA. If he had properly any of disputed those matters that may be disputed under s 15(4) the hearing might have taken a different form. However, he chose to take the course that he did and it would be speculation to consider what might otherwise have been.
Conclusion
32 Accordingly, the appeal fails. The magistrate did not make any mistake. The fence was damaged by two separate storms. Mr and Mrs Baumgartner went beyond what was required in terms of giving notice and were met by an absolutely negative response from Mr Halvorsen.
33 My orders are:
1. The appeal is dismissed.
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