Higgins v Berry - [1908] HCA 49

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Urown Lands Act 1884 (N.S. W.), (48 Vict, No. 18), sec. 141-Crown Lands Act

1895 (N.S. W.), (58 Vict, No. 18), secs. 24, 25-Rights of holders of adjoining land- - -Fence erected on common boundary-Contribution towards cost-Liability SYDNEY,

of freeholder / Right of settlement lessee to contribution-Construction of Statutes. July 28, 29; August 11.

A holder of land in freehold is liable to contribute towards the cost of a ence erected on his boundary by a person entitled under sec. 141 of the Crown Lands Act 1884 to call upon an adjoining holder for contribution.

So held, per Griffith C.J., O'Connor and Isaacs JJ. But held (per totam curiam), that the holder of a settlement lease under secs. 24 and 25 of the Crown Lands Act 1895 is not entitled to claim contribu-

Per Higgins J.-Sec. 141 has no application as against or in favour of owners in fee simple under old titles, but is restricted to purchasers and others who are still in contractual relations with the Crown under the Crown

Decision of the Supreme Court: In re Berry, (1907) 7 S.R. (N.S.W.), 768, affirmed on the first point, and reversed on the second.

APPEAL from a decision of the Supreme Court of New South Wales upon a case stated by the Land Appeal Court under sec. 8, sub-sec. vi. of the Crown Lands Act 1889.

The appellant became the holder in freehold of certain land in New South Wales. Subsequently to the purchase the respon-

6 CLR 619

dent became the holder of a settlement lease of land adjoining that of the appellant, and having a common boundary on one side. The respondent erected a fence on the common boun- dary and served the appellant with a claim for half the cost of the fence. The appellant refused to pay, and the respondent brought the matter before the Local Land Board, who decided in his favour, holding that the appellant was liable under sec. 141 of the Crown Lands Act 1884 to contribute half the cost of the fence, assessing the amount payable at £55. The appellant appealed to the Land Appeal Court against this decision upon the ground that a freeholder was not liable under sec. 141 to contribute towards the cost of boundary fencing. The Land Appeal Court sustained the appeal, and at the request of the respondent stated a case for the decision of the Supreme Court on the question whether the holder of land in freehold is liable under the provisions of the Crown Lands Acts to contribute towards the cost of a fence erected by the holder of a settlement lease on the common boundary of the land held in freehold and that held under settlement lease."

The Supreme Court were of opinion that a freeholder was liable under the circumstances stated, and, assuming that a settlement lessee was entitled to contribution under sec. 141, answered the question submitted…

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 Higgins v Berry

Details

AGLC: Higgins v Berry [1908] HCA 49
Case: [1908] HCA 49
Decision Date: 11 August 1908

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of New South Wales regarding liability for the cost of a boundary fence. The dispute arose when the respondent, a holder of a settlement lease, erected a fence on the common boundary with the appellant, a freeholder, and claimed a contribution towards its cost. The Local Land Board found the appellant liable under section 141 of the *Crown Lands Act 1884*, but this decision was overturned by the Land Appeal Court. The Supreme Court subsequently found in favour of the respondent, holding that a freeholder was liable.

The High Court was required to determine two principal legal issues. Firstly, whether a holder of land in freehold is liable to contribute towards the cost of a fence erected by an adjoining landowner under section 141 of the *Crown Lands Act 1884*. Secondly, whether a holder of a settlement lease is entitled to claim such a contribution from an adjoining landowner under the same section.

The Court, by majority, held that a freeholder is indeed liable to contribute towards the cost of a fence erected by an adjoining landowner under section 141 of the *Crown Lands Act 1884*. The Court reasoned that the term "alienated" in section 141, when read in its natural and ordinary sense, includes land granted in fee simple. The Court found no ambiguity in the language of the section that would justify limiting its application to conditional alienations or excluding freeholders. However, the Court, per Griffith C.J. and Isaacs J., held that a holder of a settlement lease is not entitled to claim contribution under section 141. This was because settlement leases were a tenure introduced by the *Crown Lands Act 1895* and were not encompassed by the specific tenures (conditional purchase, conditional lease, or homestead lease) enumerated in section 141 of the 1884 Act.

The appeal was allowed in part. The High Court affirmed the Supreme Court's decision that a freeholder is liable to contribute to the cost of a boundary fence, but reversed the decision on the point that a settlement lessee is entitled to claim such contribution. Consequently, the appellant, as a freeholder, was not liable to contribute to the fence erected by the respondent, a settlement lessee.

Orders