He v Hecker

[2013] NSWSC 1219

Supreme Court

New South Wales

Medium Neutral Citation:

He v Hecker [2013] NSWSC 1219

Hearing dates:

21/08/2013

Decision date:

03 September 2013

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The appeal is dismissed.

(2) The decision of Magistrate Bradd dated 22 April 2013 is affirmed.

(3) The summons filed 24 June 2013 is

dismissed.

(4) Costs are reserved.

Catchwords:

APPEAL FROM LOCAL COURT - orders made for dividing fence, clearing of encroachments - whether error of law - whether procedural fairness afforded - appeal dismissed

Legislation Cited:

Dividing Fences Act 1998
Encroachment of Buildings Act 1922
Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

Category:

Principal judgment

Parties:

Ji He (Plaintiff)
Allyson Hecker (Defendant)

Representation:

Counsel:
Litigants in person

File Number(s):

2013/00178500

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-04-22 00:00:00

Before:

Magistrate Bradd

File Number(s):

2012/00365486

Judgment

1. HER HONOUR: By amended summons filed on 24 June 2013, the plaintiff seeks to appeal the decision made by Magistrate Bradd in the Downing Centre Local Court on 22 April 2013. His Honour resolved a dispute under s 13 of the Dividing Fences Act 1991 in favour of Ms Hecker and made orders for the erection of a fence and ancillary orders for the clearing of obstructions or encroachments along the boundary in the line of the fence. Ms He appeals those orders.

1. The plaintiff in this Court is Ji He who was the defendant in the Local Court proceedings. The defendant in this Court is Allyson Hecker who was the plaintiff in the Local Court. For convenience and to avoid confusion, I shall refer to the parties by name. At the hearing of this appeal both parties were self represented. Ms He was assisted by an interpreter.

The statutory provisions of the Act

1. It is convenient that I commence this judgment by providing a brief overview of the relevant provisions of the Dividing Fences Act 1991 (the Act). The definitions of adjoining owners, dividing fence and fencing work are contained in s 3 of the Act. These definitions are as follows:

"dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.

fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

...

(c) any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

fencing work means:

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,

..."

1. Section 4 provides for the determination of what is a "sufficient dividing fence":

"4 Determination as to "sufficient dividing fence"

In any proceedings under this Act, the Local Court ...is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a) the existing dividing fence (if any),

(b) the purposes for which the adjoining lands are used or intended to be used,

(c) the privacy or other concerns of the adjoining land owners,

(d) the kind of dividing fence usual in the locality,

(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

..."

1. Part 2 covers liability for fencing work. The relevant sections here are as follows:

"6 General principle-liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) This section applies whether or not a dividing fence already separates the adjoining lands.

7 Contribution as between adjoining owners-generally

(1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence."

1. Part 3 sets out procedure and implementation. Section 13(1) reads "[t]he Local Court ... has jurisdiction to hear and determine any matter arising under this Act."

1. Orders relating to fencing work are provided for in s 14. It reads relevantly:

"14 Orders as to fencing work

(1) The Local Court ... may, in respect of an application under this Act, make an order determining any one or more of the following:

(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,

(b) the fencing work to be carried out (including the kind of dividing fence involved),

(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,

(d) which portion of the dividing fence is to be constructed or repaired by either owner,

(e) the time within which the fencing work is to be carried out,

(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,

(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.

...

(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act."

1. Section 18 provides for defining a common boundary:

"18 Procedure for defining boundary line

(1) An adjoining owner may give notice in writing to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work.

...

(3) The owner giving the notice may have the common boundary line defined by a registered surveyor if the owner to whom the notice is given has, within 1 month after service of the notice, defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor.

...

(5) In any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners."

1. Section 19 refers to appeals and I refer to it later in the judgment.

1. Part 4 is entitled Miscellaneous. The right to enter adjoining land for the purpose of fencing work is provided for in s 20 as follows:

"20 Right to enter adjoining land

An adjoining owner who carries out fencing work under this Act (including the owner's employees or agents) may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work."

1. Section 23 is the provision relating to costs:

"In any proceedings under this Act, the Local Court ... may award costs against either party."

The proceedings in the Local Court

1. On 23 November 2012, Ms Hecker made an application in the Local Court under s 12 of the Dividing Fences Act. She sought the following orders:

"The court make orders for the following dividing fence to be erected:

●A 1.8m high colourbond style fence with its centre along the common boundary between 50 and 52 XXX XXXXX Rd between the existing front rendered brick fence and the rear boundary (~33.2m in length).

●The exact location of the boundary to be marked by an independent registered surveyor prior to the erection of the fence.

●That all vegetation and encroachments along the path of the fence e cleared so that the fence can be constructed.

●That each party is to pay half the cost of the surveyor and half the cost of the fence construction.

●That any additional costs incurred for the removal of the obstructions or encroachments along the boundary be payable by Ji He." (My emphasis added.)

1. A copy of a survey diagram shows the location of the boundary between numbers 50 and 52 reproduced below. Ms He resides in number 52 shown as Lot 3 on the survey and Ms Hecker resides in number 50 shown as Lot 2:

1. There is a brick fence dividing the properties at the entrance to them. No order is sought in relation to that part of the dividing fence. As Ms Hecker explained (at T 25.1-6):

"The existing fence at the rear of the property is in deteriorating condition and the previous owner of 52 XXX XXXXX X Road had complained to me about it in mid-2008. In addition the survey I have of my property which is annexure two shows the existing fence is located inside my boundary. So I proposed replacing the deteriorating fence and continuing it along the side of my house to meet up with the existing rendered brick wall at the front."

1. On 20 April 2013, Ms Hecker's application was heard by Magistrate Bradd in the Local Court, Downing Centre. Both parties were self-represented. Ms He was assisted by an interpreter. Ms He called two witnesses to give evidence, Mr Zhu and Mr Mao. Mr How Yung Zhu, the former owner of her property, gave evidence of what was on the boundary when he owned the premises and of a development application to council. Jemmy Mao was a friend of Mr Zhu. Both witnesses were cross-examined by Ms Hecker. Both parties relied upon documents, affidavit evidence and were given the opportunity to make their submissions.

1. Ms Hecker in oral submissions stated (at T 23.23-29):

"[The] garden beds have been constructed against my wall on my land and a range of items and building waste have been stored against my wall inside of the boundary of my land. Most notably however is the partition that extends from the wall at the front of the house of 52 and connects with - goes across the boundary and connects with my house, number 50. This partition is 3.1 metres high, timber frame construction flat on both sides in weatherboard and complete with roof, guttering and power."

1. Ms Hecker continued (T 24.1-3):

"... This partition prevents me accessing the southern wall of my house and the section of land along side my southern wall inside my boundary."

1. On 2 August 2012, Marrickville Council informed Ms Hecker that they considered the partition and the encroachment a civil matter (T 24.17-18).

1. Before I refer to the Magistrate's reasons for his decision, I should refer to the factual findings concerning a development application lodged in relation to No 52 in 2008. Appeal ground 2 refers to this development application.

1. Ms He submitted before the Magistrate and before this Court that the partition was approved by council in DA 2008/00281 and Ms Hecker was informed of this in a letter from Ms Judy Craig, Manager Development Assessment at Marrickville Council, dated 10 September 2008. This letter from Ms Craig is in response to Ms Hecker's submissions regarding DA 2008/00281. The letter stated that the application was approved subject to conditions.

1. Ms He further stated that she had not seen a document handed to the Magistrate in relation to DA 2008/00281 by Ms Hecker. This was a letter to Ms Hecker from Marrickville Council dated 11 February 2011. However, at T 34.27, his Honour asked Ms He: "So have you received that letter?" She replied "Yes I have" (T 34.29). She again asserted during the hearing of this appeal that she did not see that document. It is clear from the transcript in the Local Court that she admitted that she had seen it. The Magistrate quoted the relevant paragraphs from this letter in his judgment (at T 33.88-40):

"This construction was approved by development consent number 20080281 dated 10 September 2008. Council has investigated this matter and has requested the owner to alter the existing structure so that it doesn't encroach over the northern side boundary."

1. His Honour was satisfied that DA 2008/00281 did not include a partition between numbers 52 and 50 (T 34.31). The finding in relation to the development application cannot be challenged on appeal.

1. In his reasons for decision the Magistrate, after outlining the orders sought by Ms Hecker, stated (at T 32-35):

"The property is on development plan 526196. The title system is Torrens and the respective lots are lots 2 and 3. Since the land is registered under Torrens title the owners of each lot has the exclusive legal ownership of the land upon the lot and any customary type tool that existed prior to the registration of the property as Torrens title is exhausted which means that the owner of lot 3 has no customary title over any of the land on lot 2 which is adjacent to lot 3.

The Dividing Fences Act s 4 provides that Local Court is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence which includes the existing dividing fence if any, the purposes for which the adjoining lands are used. Privacy or other concerns of the adjoining landowners, the kind of dividing fence used in the locality, any policy or code relating to dividing fences adopted by the council of the local government area, any relevant environmental planning instrument. So the Act presumes that there is to be a dividing fence between the properties. The structure of the dividing fence may be a number of different things including a hedge for instance of a vegetative barrier. It may include for instance a brick foundation but does not include a retaining wall.

It has been the situation since Mr Zhu took up occupancy of 52 XXX XXXXX Road that there has been no divided fence between the properties and that the wall of number 50 be regarded at the dividing division between properties. It has also been the situation there has been a connection between the two houses at the front and rear so the inside portion has been enclosed. Mr Zhu says he has not been told to demolish the door which is presently forms the partition at the front of the house.

Now she objects to the new dividing fence which she says is sought to take repossession of a narrow strip of boundary land which has been legally occupied and possessed by number 52. As I said before that is not true due to the fact that the properties have been registered under Torrens title. No customary title now exists over the property. It may be true that the earliest previous owners abandoned the right of erecting a dividing fence on the boundary outside the cottage wall and it abandoned the right of entry, however, that does not affect the current situation.

... There is also an existing paling fence on the northern boundary between number 50 and 52. There is side door which has existed on the front boundary and the front of number of 52 which was renovated in 1999 and Ji He says that the wall provides a sufficient dividing fence to impede egress or ingress between the properties.

...

[The] reports by G V Hull and Associates indicates fencing

irregularities as shown on the sketch. Survey report by S J Dickson and Associates also speaks of fencing irregularities. Ms Hecker is concerned about the fact of the wall of the house at number 50 being rendered. She is also concerned about the fact of the floor being concreted and tiled, the footings exposed, garden beds constructed and waste stored against the

house wall. The type of fences in the locality are various. There are paling fences. There are places where there are no fences between the houses. There are also brick fences, rendered fences between the houses. I note that Ms Hecker is concerned about hooks on the present part of the paling fence and given the closeness of the fence to - or the boundary, I should say, to

50 XXXXX Road, I consider that a Colorbond fence is a suitable fence."

1. The Magistrate made the following orders:

"The court makes orders for the following dividing fence to be erected:

- A 1.8 m high colourbond style fence with its centre along the common boundary between 50 and 52 XXX XXXXX X Rd between the existing front rendered brick fence and the rear boundary (~33.2m in length).

- The exact location of the boundary to be marked by an independent registered surveyor prior to the erection of the fence.

- That all vegetation and encroachments along the path of the fence be cleared so that the fence can be constructed.

- That each party is to pay half the cost of the surveyor and half the costs of the construction.

- That any additional costs incurred for the removal of the obstructions or encroachments along the boundary be payable by Ji He.

Order 52 XXX XXXXX X Road, Lewisham to remove any encroachments within 30 days.

Fence to be erected within 60 days."

The appeal to this Court

1. Section 19 of the Dividing Fences Act 1991 provides for appeals against an order in the Local Court. It relevantly reads as follows:

"19 Appeals etc

(1) Any order made by the Local Court ... under this Act is final.

(2) However, a party to proceedings under this Act who is dissatisfied with the order of the Local Court ... as being erroneous in point of law, may appeal to the Supreme Court.

..."

1. By amended summons filed 24 June 2013, Ms He outlined nine grounds of appeal. On 26 July 2013, Campbell J made orders that paragraphs 3 to 9 inclusive of the amended summons be struck out.

1. That leaves two grounds of the appeal. They are as follows:

"1. The magistrate of local court did not consider the facts I stated in my two affidavits of case 2012/365486 and did not notice the defendant acknowledged the facts I stated in my two affidavits. The fence order made by the magistrate is against the facts mentioned above and the third judgement of "encroachment" is indefinite.

2. The "encroachment" along the path of the fence in the third order 2012/365486 was used by the defendant as an excuse for her twice damage by force in the premises of No.52. The result is the fence order 2012/365486 was used by the defendant as a "demolish order" to demolish No.52's side door structure and used as a "land order" to get re-entry and re-possession of the land outside the southern wall of No.50. In the court proceeding, demolishing my side door structure and getting re-entry was not mentioned in the fence application by the defendant and it is totally different case with the case of dividing fence. In a Council letter, dated 10/09/2008, the defendant was informed that No.52's side door structure was approved by Marrickville Council and Land and Environment Court is the right court she may go to regarding this structure."

1. So far as it is contended that the Magistrate did not consider the facts, his Honour was obliged to afford both parties procedural fairness. It is trite law that the requirements of procedural fairness apply to the Local Court. The contents of the requirements of natural justice or procedural fairness are not fixed but they involve a duty to act judicially, deal with the matter for decision without bias, give each party the opportunity of adequately presenting its case, observe the procedural and other rules provided for in the relevant statute and come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice. See Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405. The Magistrate gave both parties the opportunity to call witnesses and cross-examine them, give evidence in oral and written form and make submissions. While his Honour may have made factual findings that Ms He does not agree with, this does not amount to a denial of procedural fairness. In my view his Honour afforded both parties procedural fairness and this part of the appeal fails.

1. In relation to the application under the Dividing Fences Act, the Magistrate was obliged to consider all the circumstances of the case including the existing dividing fence (if any), the purposes for which the adjoining lands are used or intended to be used, the privacy or other concerns of the adjoining land owners, the kind of dividing fence usual in the locality, any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated, and any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated. In my view the Magistrate considered the circumstances as outlined in s 4 of the Act.

1. The Magistrate made a finding that the development application did not include the partition between the properties. His Honour ordered the removal of "encroachments" along the path of the fence. This means the wooden partition attached to number 52 and which crosses the boundary of number 50 has to be removed. A "fence" in s 3 of the Act is defined as "a structure ... enclosing or bounding land". The partition between the two properties performs the task of enclosing or bounding the land between the two properties and is therefore a "fence" within the meaning of the Act.

1. It is my view that the removal of that part of the partition which is encroaching on Ms Hecker's boundary is a task that can be undertaken as part of the preparation of the land pursuant to the definition of "fencing work" in s 3 of the Act. As a result, his Honour's orders made on 22 April 2013 are affirmed and the appeal is dismissed.

1. If I am wrong, and the partition does not fall within the definition of fence, the orders of Magistrate Bradd are ultra vires. However, the removal of such an encroachment can be dealt with under the Encroachment of Buildings Act 1922. An "encroachment" is defined in s 2 of that Act as an:

"... encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil."

1. The Land and Environment Court has jurisdiction to make orders pursuant to the Encroachment of Buildings Act, including the removal of the encroachment (s 3(2)(c)). The Land and Environment Court only has jurisdiction under the Dividing Fences Act pursuant to s 13A if the application for the exercise of jurisdiction is made in relation to proceedings under s 7 of the Trees (Disputes Between Neighbours) Act 2006. The Land and Environment Court's jurisdiction does not cover a dividing fence simpliciter, its jurisdiction is limited to orders in relation to a tree that is part of a dividing fence. The Local Court has no jurisdiction under the Encroachment of Buildings Act.

1. As a consequence of this division of jurisdiction between the Land and Environment Court and the Local Court, a property owner seeking the removal of an encroachment that is interfering with, or obstructing, the installation of a dividing fence must make an application in the Land and Environment Court for an order to remove the encroachment and an application in the Local Court for an order for the building of a dividing fence.

1. However, there would be no utility in remitting this matter back to the Local Court as it would not have jurisdiction to make the order seeking removal of the encroachment sought by Ms Hecker. Relevantly, pursuant to s 10(a) of the Encroachment of Buildings Act, this Court may "if it sees fit, exercise any of the powers conferred on the Land and Environment Court by this Act".

1. When making a decision whether to remit a matter to the lower court, this Court must bear in mind the overriding purpose of the Civil Procedure Act 2001. Section 56 reads as follows:

"56 Overriding purpose

(1) he overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) he court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."

1. Pursuant to UCPR r 50.16, this Court may make amendments to the orders made by the lower court or make such orders as it determines should have been made. Rule 50.16 relevantly reads as follows:

"50.16 Conduct of appeal

...

(2) The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning:

(a) amendment, and

(b) the drawing of inferences and the making of findings of fact

...

(6) The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made."

1. I am satisfied that the partition installed between Ms He's property and Ms Hecker's property falls within the definition of "fence" under the Dividing Fences Act, part of which is encroaching on the northern boundary of Ms Hecker's property. Ms He has previously been informed by Marrickville Council that the partition should be altered so as to not encroach on Ms Hecker's property. Further, it is in the interests of the just, quick and cheap resolution of the issues in these proceedings that I deal with the partition issue. In these circumstances, I would exercise my discretion pursuant UCPR 50.16, to remake the orders that were made by Magistrate Bradd in the Local Court on 22 April 2013 and make a further order pursuant to s 3(2) of the Encroachment of Buildings Act 1922, that the partition erected between number 52 and number 50 XXX XXXX Road Lewisham be altered by Ms He such that the partition no longer encroaches on Ms Hecker's property.

1. The result is that the appeal is dismissed. The decision of Magistrate Bradd dated 22 April 2013 is affirmed and the summons filed 24 June 2013 is dismissed. Costs are reserved.

The Court orders:

(1)   The appeal is dismissed.

(2)   The decision of Magistrate Bradd dated 22 April 2013 is affirmed.

(3)   The summons filed 24 June 2013 is dismissed.

(4)   Costs are reserved.

**********

Decision last updated: 05 September 2013