Hogarth v KARP
[2013] SASC 159
•18 October 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
HOGARTH v KARP AND ANOR
[2013] SASC 159
Judgment of The Honourable Justice Peek
18 October 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - FENCES AND FENCING
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL
The appellant and the respondents are the respective owners of two adjacent properties which share the subject boundary. The respondents wished to replace the existing house with a new single storey dwelling and to make maximum use of the land as depicted in the Ceriticate of Title. After being forced to move the proposed dwelling 600 millimetres away from their northern boundary, the respondents' plan to build within 900 millimetres of the subject boundary was approved by the Council. A survey of the land later revealed that a retaining wall, on top of which was a brush fence, was encroaching on the respondents' land. The respondents then lodged an application under the Fences Act 1975 in the Magistrates Court seeking orders that the retaining wall and brush fence be removed and a new fence erected, and that the appellant contribute to the costs of those works.
The respondents' case was that they needed the full use of their land up to the subject boundary. The appellant's case was that the encroachment was trifling, that she would suffer significant loss of amenity and that removal and replacement of the retaining wall threatened the structural integrity of her carport and granny flat. She asserted that the retaining wall had been an adequate structure until the respondents had excessively excavated their land and thereby undermined it, and claimed that there was a much cheaper alternative to its removal. The appellant counterclaimed for damage to the retaining wall. The Magistrate granted the respondents' application and dismissed the counterclaim.
Held (Peek J, dismissing the appeal):
(1) The Magistrate did not err in his approach to, and findings concerning, the nature and degree of encroachment. It was within his discretion under the Encroachments Act 1944 to order that it should be removed and for the replacement fence to be constructed wholly within the appellant's land. [57]-[61]
(2) The Magistrate did not err in his findings concerning the present state of the retaining wall and the brush fence and the need to replace them. It was legitmate to take into account both that the wall does not comply with modern building standards and that its removal and replacement would result in a new modern fence being erected. [62]-[73]
(3) It was open to find that the retaining wall did not have a proper footing and would only have remained an adequate structure so long as the ground level was maintained on the respondents' land; excavation is a common incident of the development of residential land and the respondents should not be deemed culpable for exposing an inherent flaw in the retaining wall through attempting to utilise their land to its full potential. [79]-[87]
(4) It was open to find that despite the higher costs associated with the construction of the new retaining wall and fence, the prejudice to the respondents if the existing structure were preserved would significantly outweigh the appellant's interests in maintaining the status quo through the adoption of other options. [88]-[97]
(5) The Magistrate did not err in the overall exercise of his discretion in ordering the removal of the fence, determining the manner of its replacement and the apportionment of expenses in all the circumstances. [98]-[135]
(i) He correctly assessed the encroachment as being more than trifling and presenting real obstacles to the efficient completion of the respondents' proposed development. [99]-[115]
(ii) He gave sufficient consideration to the inconvenience to which the appellant may be put by the removal and reconstruction of the retaining wall. [116]-[125]
(iii) He did not err in his orders as to the nature of the new fence to be errected, the contributions to the cost of the works to be made by each party, and the directions given to the parties. [129]-[135]
(6) The Magistrate did not err in his disposition of the appellant's counterclaim. [136]-[141]
(7) The appellant succeeded in identifying two errors by the Magistrate. First, the finding that Mr Sarneckis, a retired surveyor, had discovered the existence of the encroachment when conducting a survey of the appellant's land 1991 and had advised the appellant's late husband, and inferentially, the appellant. Second, that the Magistrate erroneoulsy attributed a view to the appellant's expert that the concrete upstand would further restrict access to the site by tradespersons, when in fact this view was expressed by the court appointed expert. These errors do not justify allowing the appeal, because:
(i) the incorrect finding as to prior knowledge of the encroachment did not affect the Magistrate's approach to central issues. That finding was not relied on by his Honour in making any subsequent finding of fact or any discretionary decision. The ultimate result would have been the same if the finding had not been made; and [74]-[77], [151]-[152], [154]
(ii) the matter of the confusion in the reference to the evidence of the appellant's expert and the court appointed expert makes no appreciable difference to the ultimate finding. The ultimate result would have been the same if this confusion had not occurred. [111]-[115], [153]-[154]
Fences Act 1975 s 12, 12(2), 12(2)(a), 12(2)(h), 12(2)(i), 12(2)(j); Encroachments Act 1944 ss 2, 4(2)(c), 11(1); Magistrates Court Act 1991 s 29; Development Act 1993 ss 60(1), 60(2), 85; Development Regulations 2008 reg 75(2)(a), referred to.
Re Perdita Pty Ltd [1986] ANZ ConvR 698; Churchill v Badenochs Transport Ltd (1971) 1 SASR 63; Nikolettos v Johnson [1991] SASC 2912, applied.
J & D Butland v M & J Cole (Unreported, New South Wales Land and Environment Court, Bignold J, 19 June 1995); Hill v Higgins [2012] NSWSC 270; Clark & Rice v Drummond [2009] SAMC 48; Bunton v Ciccarello (Unreported, Magistrates Court of South Australia, Mr Millard SM, 20 November 2009); Wadsley v Jacobs & Mednis [2005] SADC 94, distinguished.
Clarke v Wilke (1977) 17 SASR 134; Bunney v South Australia (2000) 77 SASR 319; Norbis v Norbis (1986) 161 CLR 513; Pope v Ewendt (1977) 17 SASR 45; Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479; Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd [2004] FCAFC 48, discussed.
Gladwell v Steen (2000) 77 SASR 310; Cuthbert v Hardie (1989) 17 NSWLR 321; Ex parte Van Achterberg [1984] 1 Qd R 160; Droga v The Proprietor of Strata Plan 51722 No 30091 of 1996 [1996] NSWLEC 247; House v The King (1936) 55 CLR 499; Theophilus v Police (2011) 110 SASR 420, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"encroachment", "retaining wall", "trifling"
HOGARTH v KARP AND ANOR
[2013] SASC 159Magistrates Appeal
PEEK J. Appeal against a decision under the Fences Act 1975.
The appellant and the respondents are the respective owners of two adjacent properties. On 26 June 2013, a Magistrate granted the respondents’ application under the Fences Act 1975 (the Act) and ordered inter alia that the existing fence and retaining wall on the northern boundary of the appellant’s land (“the subject boundary”) be demolished and replaced with a Colorbond Good Neighbour fence and a new retaining wall. He further ordered that the respondents bear two-thirds of the cost of that construction and the appellant bear one-third, and that the appellant bear the full cost of any remedial work to her own land required by that process. His Honour dismissed the appellant’s counterclaim. The appellant appeals to this Court against those orders.
Uncontentious background matters
I find the following matters to be either common ground or to be based on findings by the Magistrate which are unchallenged.
The appellant and her late husband purchased their property at 9 Penarth Avenue, Beaumont (the appellant’s land) in 1987 (having rented it since late 1985). It is bounded on its northern side by the respondents’ property at 7 Penarth Avenue (the respondents’ land) which the respondents purchased in October 1999.
A fence at the rear of the two properties runs along two-thirds of the subject boundary and ends to the east of a carport on the northern side of the appellant’s land; it comprises a brush fence which sits on top of a retaining wall composed of stone and brick (the Retaining Wall). The combination of both the Retaining Wall and the brush fence will sometimes be referred to as “the Fence”.
The Retaining Wall varies in width, being 40 centimetres in width at its thickest point. The Retaining Wall straddles the boundary and encroaches on the respondents’ land by varying amounts of up to 32 centimetres. It has been in existence since at least the time the appellant commenced renting in 1985.
The Fence, as it currently stands, came into existence during renovations undertaken by the appellant in 1997/1998. An existing brush fence at the rear of the appellant’s property was then repacked and increased in height to about 300 millimetres. In addition, a post and wire portion of the dividing fence on the subject boundary was removed and a concrete plinth was placed on top of the existing stone retaining wall with a new section of brush fence being constructed, extending from the rear of the properties to about 4.5 metres east of the appellant’s carport. The remaining third of the subject boundary is defined by foliage and an irregular rock wall.[1]
[1] This structure was not the subject of the application at trial but on appeal the parties made tentative submissions as to the appropriate fence to replace this structure. Since the Magistrate (Reasons for Decision [11]) expressly refrained from making any orders in relation to that structure, I will not consider that matter either.
Development of the respondents’ land
The respondents wished to demolish the old dwelling on their land and erect a new single storey dwelling to be their retirement home. In circumstances to be considered in detail below, this needed to be constructed very close to the subject boundary.
Demolition of the existing dwelling was completed and excavation of the site up to the southern boundary commenced sometime just prior to 17 January 2012. On 27 February 2012, the respondents lodged a formal application with the Burnside Council for approval to construct a single storey dwelling with a garage, alfresco area and veranda. On 26 April 2012, Development Plan Consent was granted. Building Rules consent was then granted on 10 May 2012, and Development Approval was granted on 18 May 2012.
In response to the excavation, the appellant sent an email to the first respondent, Mr Karp, on 7 February 2012 at 7:04pm, seeking confirmation that the works would not impact on the fencing on the subject boundary. Mr Karp replied at 7:48pm and indicated that he had asked the contractors to be very careful not to damage the brush fence which he, in the same email, indicated would “obviously … be retained”.[2] At this time he was unaware of any encroachment issue.
[2] Exhibit D1, 42.
The First Access SDM Survey - 22 February 2012
On 22 February 2012, an identification survey undertaken by Access SDM Pty Ltd (the First Access SDM Survey) for the respondents indicated that the Retaining Wall and the Fence were not correctly situated on the subject boundary. This was the first indication that the respondents had of any encroachment into their property.
Discussions between the parties
The first respondent emailed a copy of the First Access SDM Survey to the appellant on 27 February 2012, indicating that the boundary issues had to be resolved immediately as the substantive building work could not commence until then. In response to further emails, the first respondent on 13 March 2012 at 11:53pm again emailed the appellant and stressed that the Retaining Wall had to be demolished and a new fence and retaining wall erected:[3]
The retaining wall is clearly, according to the survey, in our property, and it needs to be removed and replaced on the boundary. This will require the demolition of the retaining wall, erection of a new retaining wall with regulation soakage drainage pipe, and erection of a new fence. This work is required, as we need our land to be able to construct our new house. Unfortunately there is a cost for both us and yourself to attain this end, which is why I have advised you in the first instance. I am currently seeking quotations for the best price for this work to be completed. I realise you are trying to sell your house, so we need to have it done as soon as possible, so it will present as little inconvenience as possible for you.
[3] Exhibit D1, 46.
There followed a series of emails in which the first respondent and the appellant arranged to meet and discuss the first respondent’s proposal. This meeting took place on 10 May 2012 at 10:00am at the Burnside City Council Café. The first respondent outlined his proposal for the construction of a new retaining wall with a 2.1 metre high fence for approximately 32 metres of the subject boundary; he suggested that the cost of removal and replacement of the retaining wall and fence be borne by the parties in equal shares. He also indicated that he had received Council approval for the proposed development of his house.[4] The appellant, was accompanied at the meeting by her brother-in-law, Mr Kostas Sarneckis (a retired licensed surveyor formerly employed by the South Australian government). Mr Sarneckis indicated that the appellant would have to consider the information provided and assess her position.
[4] Formal Development Approval was only officially granted by the Burnside Council several days later on 18 May 2012. Formal Development Approval for the construction of the new fence and retaining wall along the subject boundary was only granted on 12 February 2013, after having been applied for on 18 December 2012. See exhibit D2, 29.
On 15 May 2012 at 3:30pm, the appellant emailed the first respondent with a record of the 10 May 2012 meeting; she also inquired as to whether the costs of any “blowout” and of any propping up of her carport would be shared. The first respondent replied at 4:52pm accepting the accuracy of the record of the meeting and accepting that the costs of any “blowout” would be shared and stated as follows in relation to the carport:[5]
… We may be agreeable to splitting the cost of supporting the carport, although if the wall was in the correct place initially, we wouldn’t need to remove it now.
[5] Exhibit D1, 49.
Further approvals
The respondents continued to secure further approvals for their proposed development. On 11 May 2012, the respondents applied for Development Plan Consent for the construction of fences on the northern and western boundaries of their property. This was granted on 25 June 2012, followed by Building Rules Consent and Development Approval on 17 July 2012.
On 6 July 2012, the respondents applied for Development Plan Consent in respect of their amended plans for the dwelling which increased the floor space of the garage and removed the alfresco area; this was granted on 10 August 2012.
On 18 December 2012, the respondents filed an application for Development Approval for a new retaining wall and fence on the subject boundary. Development Plan Consent was granted on 31 January 2013 followed by Building Rules Consent and Development Approval on 12 February 2013.
The proceedings under the Fences Act 1975
On 4 June 2012, the respondents issued a notice under the Fences Act 1975[6] declaring their intention to remove the Fence and Retaining Wall and replace them with new structures. The respondents sought 50 per cent contribution from the appellant to the cost of completing this proposal. The appellant objected to this by a cross-notice dated 29 June 2012.[7] The respondents filed an application under the Fences Act 1975 in the Magistrates Court on 2 July 2012 claiming $11,896.85.
[6] Exhibit P1, 2.
[7] Exhibit P1, 2.
On 3 July 2012, the matter was referred to Mr John Robinson, a Court Building Expert, pursuant to s 29, Magistrates Court Act 1991. On 22 July 2012, Access SDM Pty Ltd completed a more detailed survey (the Second Access SDM Survey) which confirmed the encroachment. On 23 July 2012, Mr Robinson conducted a site visit; he prepared a report on 25 July 2012, which was provided to the parties on 26 July 2012.
On 1 August 2012, the matter was remitted for further directions on 20 September 2012, on which day the Magistrate adjourned the matter for further directions to 7 November 2012; he directed the filing of a defence/counterclaim by the appellant and scheduled an on-site conciliation conference for 7 December 2012. It was at this point that the appellant elected for the matter to be removed from the Minor Civil Claims Division of the Magistrates Court, given that the respondents’ claim exceeded $6,000.
On 5 November 2012, the appellant filed a Defence and on 6 December 2012 filed an engineer’s report of Mr Ronan Whelan of PT Design, prepared after a site visit on 22 October 2012 (the First Whelan Report). On 1 February 2013, the appellant filed an Amended Defence and Counterclaim and on 10 April 2013 filed a further report of Mr Whelan (the Second Whelan Report) and later the report of Mr Anthony Brewster of WT Partnership.
The trial in the Magistrates Court commenced on 23 January 2013 and continued on 13 and 14 May 2013 when judgment was reserved.
The case for the respondents at trial
The case for the respondents was essentially as follows. They purchased their property in 1999 with the intention of living in the existing dwelling for a time and then demolishing it and constructing a house for their retirement years. As Mr Karp stated in his evidence-in-chief:[8]
Q… By way of background for the court record, can you tell the court perhaps a little of – when you acquired the land, what you proposed to do, what development is that you proposed and why you proceed to make the application.
AYour Honour, we purchased the land in October 1999 with the ultimate intention of demolishing the house and building a house for our retirement on a level block. …
[8] T11, 28-30 (cross-examination).
Sometime after April 2010, the respondents had drawn up plans for their retirement house. Importantly, it was to be single storey[9] on a level block so as to accommodate their arthritis problems. The requirement of a single rather than a two storey dwelling made the precise available land area of high importance.
[9] See exhibit P1, 10; exhibit D1, 21-29; exhibit D5.
The respondents were adamant that their plans were based on the land area and boundaries as depicted by the Certificate of Title and that they proceeded upon the basis that the whole of the depicted area was available to them. The first respondent’s evidence was replete with references to availing himself of the benefit of the land to which the respondents had legally acquired the title.[10] The respondents did not undertake a survey of the land at this time, being of the view that that could be more effectively completed once the existing structures had been demolished.[11]
[10] T26, 56, 57, 66, 74, 76. See also T190 (although technically this was a question put to the appellant by the first respondent).
[11] T12.
The respondents lodged a preliminary application for Development Approval with the Burnside Council in mid 2011 but encountered difficulties in arriving at a final design which could be approved. One initial plan proposed construction of the dwelling on the boundary on the northern side of the respondents’ property (farthest from the appellant’s property) but the occupant of that adjoining house objected and the respondents were forced to move their proposed dwelling 600 millimetres away from that boundary and reduce the size of the house by ten square metres.
The respondents were then required to build no closer than 900 millimetres to the subject boundary. Thus, Mr Karp explained in cross-examination:[12]
Q… It’s 900 mm now, isn’t it that have been effectively approved as the gap?
A.That’s right, but we’ve had to come in 600 from the other side and reduce the width of the house and I had a lot of trouble getting the council to allow us 900 because they say we must have some way to escape if there’s a fire or something else like that, unusual circumstances that may require escape. Now, that – I don’t know. They have other rules that are immaterial but as far as this is concerned, but the point is that we had to come in 600 from the other side. They have told us we have to have 900 up that side and to have 900 up that side, we have to have our land back and we also have to get rid of the brush fence because of the fire rules, which came into effect if you are not aware in 2007 …
[12] T78.
Thus, the respondents’ basic contention was that they need the full use of their land adjacent to the subject boundary; they have Council approval to build as close as 900 millimetres to the subject boundary and they wish to do so. However, as things stand, the Fence and Retaining Wall in their present position impinge significantly upon that 900 millimetre space. This will severely obstruct access to the site both on a long term basis and on a short term basis in that bricklayers constructing the new dwelling would have to use more laborious, and costly, methods of completing their work. The respondents also rely upon the inconvenience and expense they would suffer were they to redesign their house and be compelled to again go through the Development Approval process with the Burnside Council.
The respondents assert that they are entitled to make optimum use of their land. As De Jersey J noted in Re Perdita Pty Ltd:[13]
… Subject of course to other factors, the applicant’s wish to make optimum use of the site is deserving of considerable weight.
[13] [1986] ANZ ConvR 698, 701.
The case for the appellant at trial
The case for the appellant was essentially as follows. First, the encroachment is small and should be regarded as trivial. It only assumes importance because of the insistence of the respondents in building at 900 millimetres from the true boundary; the respondents should relocate their building further to the north or alter the plans so as to lengthen the distances from their proposed northern wall to the subject boundary.
Second, the difficulties concerning the Fence and Retaining Wall impinging significantly upon that 900 millimetre space are exaggerated. The short term building difficulties could be addressed by bricklayers using different methods at some increased expense.
Third, the appellant would suffer significant loss of amenity if the respondents’ application was granted; removal of the Retaining Wall and Fence would likely impact on her plants, a fishpond, electrical cabling, irrigation systems, taps, outdoor power supply to external up-lights and stormwater pipes etc in its vicinity. A threat was also said to be posed to the columns of the carport and to a granny flat near the northern boundary on the appellant’s property given the further excavation required by the erection of a new retaining wall.
Fourth, the appellant asserted that the respondents’ present excavation had compromised the integrity of the Retaining Wall and was in breach of s 60, Development Act 1993 and reg 75, Development Regulations 2008.
Fifth, the appellant relied on other cheaper alternatives to replacing the Retaining Wall. She filed a report from WT Partnership providing a costs estimate for a concrete upstand proposed as an alternative by PT Design.
Sixth, by way of counterclaim, the appellant sought: an interim injunction restraining the respondents from proceeding with the construction; a declaration that, to the extent the Retaining Wall is deemed an encroachment, it not be removed, with no damages being payable to the respondents; and damages in respect of damage caused by the respondents’ excavation.
A summary of the decision of the Magistrate
The Magistrate had the benefit of having seen and heard the witnesses, including the two experts, Mr Whelan and Mr Robinson. His Honour undertook a detailed review of all of the evidence, including the reports and evidence of the expert witnesses and the submissions of the parties (including very thorough written submissions from counsel for the appellant).
The Magistrate provided lengthy written reasons for his decision and concluded that the Retaining Wall/Fence is an encroachment and does not lie on the true boundary.[14] As to whether the encroachment should be removed, he took into account the appellant’s submissions which he summarised as follows:[15]
[42]It is the defendant’s contention that the existing structure forms an adequate fence. The defendant notes the retaining wall has been in position for a considerable period of time - pre-dating by a significant margin either the plaintiffs’ or the defendant’s occupancy of their present properties.
[43]It is the defendant’s contention that conflict has been brought about entirely by the plaintiffs’ insistence upon proceeding with building plans that provide a southern wall of the new construction very close to true boundary let alone the existing boundary structures. The defendant contends there is ample opportunity for the plaintiffs to redraw their plans and move their proposed dwelling further north on the block.
[44]The defendant suggests removal of the existing fence and retaining wall may result in a loss of substantial amenity in the northern courtyard of her property. Mr Munt notes a fishpond located in the area, irrigation systems, taps, outdoor power points and power supply to external up-lights located close to or fixed to the brush fence on the defendant’s side of the property. There are also stormwater pipes running along the northern boundary in close proximity to the fence that may need replacement in the event of the removal of the fence and the retaining wall lying underneath the fence. There is also the foliage - previously referred to - that may be compromised by building works.
[45]It is the defendant’s contention that the existing structure should remain and that to the extent it is accepted that the retaining wall is straddling the boundary it is of benefit to both parties and should not be characterised as an encroachment. To the extent that the structure is an encroachment on the plaintiffs’ land (which is not admitted by the defendant) it is the defendant’s contention that there should be no order made for compensation given that the wall has clearly been there for a considerable period and has served to benefit both adjoining owners and the extent of the encroachment would be insignificant apart from the plaintiffs’ own unremitting intention of building a structure so close to the retaining wall.
[14] Reasons for Decision [131].
[15] Reasons for Decision.
His Honour found that “removal of the brush fence and retaining wall is likely to have some effect upon that amenity but not upon any significant infrastructure”.[16] His Honour held that the encroachment was far from trivial and that the respondents’ had a genuine reason for seeking removal of the encroachment. He also took into account “the longer term benefits in marking the true boundary in this case”.[17] He concluded that on balance the interests of justice favoured the granting of the respondents’ application for removal of the existing structures and the construction of a new retaining wall and fence.
[16] Reasons for Decision [134].
[17] Reasons for Decision [135].
Accordingly, his Honour made orders for the removal of the Fence and the Retaining Wall, and the erection of a new retaining wall and Colorbond Good Neighbour fence (leaving the colour of the new fence to be determined by the appellant).[18] He ordered that the respondents meet two-thirds of the cost of the erection of the new structures, with the appellant paying the remaining one-third. He declined to make any order that the respondents contribute to the costs of restoring the garden features on the appellant’s land or in re-routing any electrical wiring or water pipes.[19] However, he did order that the respondents give the appellant seven days notice of the commencement of works and that they provide written instructions to the contractors instructing them to take reasonable care in ensuring that minimal damage is inflicted to the appellant’s gardens. A copy of those instructions was also ordered to be given to the appellant.[20]
[18] Reasons for Decision [128]-[129], [135]-[136].
[19] Reasons for Decision [139].
[20] Reasons for Decision [140].
His Honour declined to make any orders on the counterclaim holding that:[21]
·an interim injunction would only preserve the status quo until final determination of the matter and was unnecessary;[22]
·the Magistrates Court cannot determine an action alleging a breach of the Development Act 1993;[23]
·the Magistrates Court lacks jurisdiction to grant permanent injunctive relief or make orders for specific performance;[24] and
·the evidence fell short of establishing on the balance of probabilities, actionable damage to the Retaining Wall.[25]
[21] Reasons for Decision [142].
[22] Reasons for Decision[118].
[23] Reasons for Decision [120]-[121].
[24] Reasons for Decision [120], [124].
[25] Reasons for Decision [126].
The Magistrate’s formal orders (which should be read in the context of the detailed reasons) appear as follows:[26]
For the reasons published I find that the retaining wall is an encroachment and that the fence is not on the true boundary.
The plaintiff is at liberty to instruct contractors to commence to remove the existing fence and retaining wall and replace them with a retaining wall and fence erected on the true boundary. The plaintiff is to meet two-thirds of the cost and the defendant one-third.
I reserve the question of costs of the trial of the action.
I grant liberty to apply with respect to any incidental orders required in the construction process and reserve the question as to any monetary judgment that may be required, pending final costings.
The order to permit the plaintiff to commence work on site is stayed for a period of 21 days from today’s date (being the period in which an appeal may be filed in the Supreme Court). Liberty to apply for an extension of the period of the stay in the event an appeal is filed.
Copy of today’s record of outcome to be sent to the parties.
[26] Record of Outcome, dated 26 June 2013.
The grounds of appeal
The appellant seeks to impugn each of the orders and the whole of the judgment. The appellant’s Second Notice of Appeal contains 45 grounds of appeal with some 67 further sub-grounds and sub-sub-grounds within them.
Prior to the hearing of the appeal, counsel for the appellant lodged an “Amended Summary of Argument” of some 32 pages.[27] To this was annexed “Annexure A” (9 pages) and “Annexure B” (2 pages) which were said to be read in conjunction with the “Amended Summary of Argument”. This joint document (in total 43 pages) was delivered to the Court with no application for exemption from Practice Direction 6.28 limiting the length of a Summary of Argument to ten pages. I mention this partly because the unrepresented first respondent commenced his argument on the hearing of the appeal by making a vehement, and fairly predictable, protest about the matter, in his own words that there has been a “total disregard for this court and its rules”.[28]
[27] Not including the cover page and Table of Contents.
[28] Appeal Transcript T33.
I do not propose to dwell on the matter. I emphasise that I have read all of the material. The mere fact that I choose not to mention any particular argument should not be taken as an indicator that I have not taken it into account.
The Notice of Appeal is drafted in a way that is not particularly conducive to efficient analysis but might be organised by reference to topics and contentions in the following way:[29]
·The Magistrate erred in his approach to, and findings concerning, the nature and degree of encroachment into the respondents’ land (grounds 11-15, 19, 22, 25, 30-35 of appeal);
·The Magistrate erred in his approach to, and findings concerning, the present quality of the Retaining Wall and brush fence and the need to replace them (grounds 1, 2, 15 and 16 of appeal);
·The Magistrate erred in his approach to, and findings concerning, the Sarneckis survey and in finding that the appellant had prior knowledge of the encroachment (grounds 17-23, 26-32 of appeal);
·The Magistrate erred in his approach to, and findings concerning, the excavation by the respondents and associated matters (grounds 3-13 of appeal);
·The Magistrate erred in that he failed to find that an alternative to replacing the Retaining Wall (such as the concrete upstand option) should be adopted (grounds 36, 43 of appeal);
·The Magistrate erred in the overall exercise of his discretion in ordering the removal of the Fence, determining the manner of its replacement, and the apportionment of the expenses in all the circumstances (grounds 3-10, 13, 24, 25, 35-44 of appeal); and
·The Magistrate erred in his disposition of the appellant’s counterclaim (grounds 4-10, 45 of appeal).
[29] Aspects of various of the grounds and sub-grounds presumably relate to various of the appellant’s contentions, which is taken into account to some extent by reference to particular grounds of appeal more than once in the above list.
All of the grounds of appeal are mentioned here; some are mentioned more than once because in some cases grounds (and often sub-grounds) have relevance to more than one topic. However, the prolific grounds and sub-grounds so overlap that I have not attempted any comprehensive rationalisation of them. I have taken them all into account so as to come to a decision that is “just” in accordance with both the specific legislation here and general principle.
The breadth of the discretions reposing in the Magistrate
I will approach the appellant’s complaints in the order above. Before doing so, it is well to note that neighbour disputes of this sort are far from uncommon and require an economic and expeditious form of resolution. Accordingly, the Magistrates Court is vested with very broad powers so as to “determine the matter in such manner as it considers just” by virtue of both the Fences Act 1975 and s 11, Encroachments Act 1944.[30]
[30] The Magistrate correctly appreciated that he had jurisdiction under s 11(1), Encroachments Act 1944. His Honour stated: “[93] This is a jurisdiction that the Act ordinarily contemplates would be exercised by the Land and Valuation Court constituted under the Supreme Court Act, however s 11 of the Encroachments Act provides:- (1) In any proceeding before a court, however originated, the court may, if it sees fit, exercise any of the powers conferred by this Act …”. (Emphasis added).
The Fences Act 1975 confers a wide discretion on the Court with respect to dealing with disputes over fences and relevantly provides:
12—Powers of court
(1) Where any difference or dispute arises in relation to fencing work, or any liability arising under this Act, any person affected by the difference or dispute may by application to the court seek a determination of the matter.
(2) Upon the hearing of an application under subsection (1) of this section the court may determine the matter in such manner as it considers just and may—
(a)make any finding, determination or order in relation to the erection of a fence, the nature of the fence to be erected, the line of fence to be adopted and the amount of compensation (if any) to be paid for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land; and
(b)make any finding, determination or order in relation to the performance of replacement, repair or maintenance work in relation to a dividing fence; and
(c)determine the person or persons by whom any fencing work is to be performed, and where it is to be performed by different persons, the part of the work to be performed by each; and
(d)re-open and correct or vary any agreement arrived at under this Act (including an agreement that is, by virtue of section 7 of this Act, deemed to have been made) upon such terms as the court considers just; and
(e)re-consider and vary upon such terms as the court considers just an order under section 9 or section 10 of this Act; and
(f)determine the time at which fencing work is to be performed and the manner of its performance; and
(g)make any order that may be necessary or expedient in relation to entry upon or access to land for the purposes of performing fencing work; and
(h)order the removal of a fence or any portion of a fence not erected upon the proper boundary; and
(i)determine the cost of fencing work and the persons by whom and the proportions in which the cost is to be borne; and
(j)make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of fencing work; and
(k)determine, and order payment of, compensation for any damage for which compensation is payable under this Act, or any other Act or law; and
(l) make such order for costs as the court considers just.
(3) The court may, on the application of any interested person, extend any limitation of time prescribed by this Act (whether or not the time so limited has expired).
(4) Where the owner of land claims to be entitled to the payment of an amount from an adjoining owner in respect of the performance of fencing work either in pursuance of the provisions of this Act, or any agreement under this Act, he may apply to the court for an order for payment of that amount.
(5) The court may upon an application under subsection (4) of this section make an order for any person to pay an amount for which he is so liable.
(6) Subject to subsection (7) of this section, any dispute as to the relative proportion in which the cost of fencing work is to be borne as between adjoining owners shall be determined according to the benefit that each of the adjoining owners derives from the performance of the fencing work, and, in the absence of proof to the contrary it shall be presumed that the adjoining owners derive equal benefit from the performance of the fencing work.
(7) If fencing work consists in the erection of an adequate fence or a fence of better quality than an adequate fence, or the conversion of an existing fence into an adequate fence or a fence of better quality than an adequate fence, then, in the absence of agreement between the adjoining owners, the contribution for which an adjoining owner is liable shall be one-half of the minimum cost of erecting an adequate fence, or converting the existing fence into an adequate fence.
(8) For the purposes of this section—
(aa)in the case of a fence dividing land, of not less than 0.8 hectare in area, used for primary production purposes from land used for residential or other purposes—an adequate fence is a fence that is adequate for the primary production purposes or a fence that is adequate for the residential or other purposes, whichever would cost less; and
(a)in any other case—an adequate fence is a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought; and
(b)a fence may be an adequate fence notwithstanding that it is discontinuous where any vegetation, watercourse, ditch or other geographical configuration serves as a fence or portion thereof.
(9) Any person who is, in accordance with this Act, liable to either of the adjoining owners of land in respect of fencing work shall be entitled to appear in any proceedings relating to that fencing work under this section.
(Emphasis added)
The relevant provisions of the Encroachments Act 1944 are as follows:
4—Application to court in respect of encroachments
(1) Either an adjacent owner or an encroaching owner may apply to the court for relief under this Act in respect of any encroachment.
(2) On the application the court may make such orders as it deems just with respect to—
(a) the payment of compensation to the adjacent owner;
(b)the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto;
(c) the removal of the encroachment.
(3) The court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters—
(a)the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;
(b)the situation and value of the subject land, and the nature and extent of the encroachment;
(c)the character of the encroaching building, and the purposes for which it may be used;
(d)the loss and damage which has been or will be incurred by the adjacent owner;
(e)the loss and damage which would be incurred by the encroaching owner if he were required to remove the encroachment;
(f) the circumstances in which the encroachment was made.
(4) This section applies to encroachments made either before or after the commencement of this Act.
(Emphasis added)
The overriding objects of the Encroachments Act 1944 were considered by Wells J in Clarke v Wilkie:[31]
It is obvious that one of the principal aims of the legislation was to place in the hands of the Court adequate and flexible powers to enable it to do more nearly complete justice between adjoining owners than was formerly possible. … [T]he primary concern of Parliament is with the adjustment of boundaries. Encroaching buildings provide the occasion for the remedy that the Act offers. The second stated purpose is also connected with the fixation of boundaries. The implication is that what is important is the mischief caused by encroachment and the remedy that enables boundaries to be effectively and fairly adjusted. …
[31] (1977) 17 SASR 134, 136, 138.
It is well established that the discretion under the Encroachments Act 1944 is a wide one. As Debelle J held in Bunney v South Australia:[32]
27. As is apparent from the terms of s 4, the court has a very wide discretion when determining what orders should be made. … First, subsection (2) invests the court with a discretion to “make such orders as it deems just”. Secondly, subsection (3) states that the court may grant or refuse leave “as it deems proper”. When read together, these provisions confer a very wide discretion. Thirdly, subsection (3) lists a number of factors to which the court may have regard. But the list is not exclusive and the facts listed in subsection (3) are not in any respect the only factors affecting the exercise of the discretion. The court may have regard to those and to any other relevant factors. Thus, the court has a very wide discretion fettered only by the fact that the discretion must be exercised having regard to the scope and objectives of the Act. (Emphasis added)
[32] (2000) 77 SASR 319, 326. See also Gladwell v Steen (2000) 77 SASR 310, 317 (Debelle J).
It is apparent that the discretion to deal with encroachments under s 4(2) is wide and not to be conditioned by anything other than the scope and objectives of the Act. The factors listed in sub-s (3) are not exhaustive and no one of them is accorded any more weight than the others.
It is to be noted that the jurisdiction under the Fences Act 1975 (“the court may determine the matter in such manner as it considers just”)[33] and that under the Encroachments Act 1944 (“may make such orders as it deems just”)[34] are very similar. A Court (including a Magistrates Court) exercising jurisdiction pursuant to an application under the Fences Act 1975 will, by virtue of s 11(1), Encroachments Act 1944 also have jurisdiction to “if it sees fit, exercise any of the powers conferred by [the Encroachments Act 1944]” and hence to adopt the approach to the use of such powers adumbrated in the extracts above.
[33] Fences Act 1975 s 12(2).
[34] Encroachments Act 1944, s 4(2).
The Retaining Wall/Fence is an encroachment
Section 2, Encroachments Act 1944 defines “encroachment” as “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 …”.[35] Section 2 defines a “building” for the purposes of an encroachment to mean “a substantial building of a permanent character and includes a wall …”.
[35] In Ex parte Van Achterberg [1984] 1 Qd R 160, 162 Carter J defined an encroachment as being:
“[M]an-made … of a substantial and lasting character … brought into existence for domestic or industrial purposes and … of such a kind that the legal rights of those affected by it may best be adjusted by permitting it to remain in place rather than by ordering its removal on the ground that it is merely a trespassing encroachment upon the land of another”. See also Cuthbert v Hardie (1989) 17 NSWLR 321, 323 (Hope AJA).
Given the evidence that the brush fence permanently sits atop a concrete plinth, which in turn sits on top of the Retaining Wall, it would seem obvious that the Retaining Wall and the Fence should be treated as one structure.[36] The Magistrate found that the Retaining Wall/Fence is an encroachment for the purposes of the Encroachments Act 1944. He was clearly correct in doing so.
[36] For an example of this approach applied to a similar composite structure see: Droga v The Proprietor of Strata Plan 51722 No 30091 of 1996 [1996] NSWLEC 247.
I turn now to the complaints of the appellant as summarised above.
The Magistrate erred in his approach to, and findings concerning, the nature and degree of encroachment into the respondents’ land (grounds 11-15, 19, 22, 25, 30-35 of appeal)
On the evidence before the Magistrate, the Retaining Wall is an irregular stone and brick wall which varies in width, being 40 centimetres in width at its thickest point, and which runs for 25.13 metres along the subject boundary.[37] It encroaches upon the respondents’ land at various points along its length by between 40 and 25 centimetres. The appellant’s counsel in his written submissions conceded the following matters:[38]
70.It ranges from being all (that is, approximately 40cm) on 7 Penarth Avenue at one point to a minimum of 25cm on 7 Penarth Avenue. From the five survey points for the retaining wall depicted in the Second Access SDM Survey, the average of the measurements comprises 31cm on 7 Penarth Avenue and 9cm on 9 Penarth Avenue. If the retaining wall was precisely on the true boundary, then, relative to its present position, on the basis of that average the difference equates to 11cm, or 2.76m2 over the entire length of the retaining wall (which is 25.13 metres in length).
71.If the retaining wall was to be replaced with a concrete panel retaining wall of 12.5cm thickness as proposed by the respondents and ordered by the learned Magistrate, and the concrete panels were straddling the boundary, this would give the respondents, again on average from the five survey points depicted in the Second Access SDM Survey, land of approximately 4.65m2 (above what they presently have) over the entire length of the retaining wall. And if the retaining wall was to be replaced with a concrete panel retaining wall of that nature, to be constructed entirely on the appellant’s land (as found by the learned Magistrate), this would give the respondents, again on average from the five survey points depicted in the Second Access SDM Survey, land of approximately 7.79 m2 (above what they previously have) over the entire length of the retaining wall).
(Emphasis added)
[37] See in particular the Second Access SDM Survey (exhibit D1, 30).
[38] Appellant’s Amended Summary of Argument.
The Magistrate stated in his reasons:[39]
[99]The finding that the wall constitutes an encroachment is inevitable given that it is common ground the wall is not build (sic) evenly straddling the boundary and is at most points well into the plaintiffs’ land – for much of its length it is 40cm wide with 32cm on the plaintiffs’ property and 8cm on the defendant’s however the defendant has built up the wall with the concrete topping and earth and foliage covering so it is of much more value to the defendant.
…
[132]It is not in dispute that the existing retaining wall, although straddling the true boundary, clearly encroaches for much of its length into the plaintiffs’ land - up to 32cm. I accept Mr Karp’s position – and as I understand his report, Mr Robinson’s position – that the retaining wall should have been built such that the northern face of the wall was flush with the boundary line.
[39] Reasons for Decision.
The appellant disputes the extent of the encroachment. For example, she asserts at ground 34 of appeal (in conjunction with grounds 14, 15, 19 and 33 of appeal) that the 32 centimetre figure is wrongly predicated on an ultimate finding that the whole of the Retaining Wall should be located on her property.
There was in fact a dearth of evidence as to the circumstances surrounding the original construction of the Retaining Wall. However, what was quite clear was that over its length it protrudes much more into the respondents’ land than into the appellant’s land (at some points being wholly located on the respondents’ land). Having correctly found the Retaining Wall to constitute an encroachment, it was well within the Magistrate’s broad discretion to proceed on the basis that if the encroachment of the Retaining Wall were to be removed, then in all of the circumstances of this case (as otherwise examined in detail by his Honour) it was just to order that the replacement retaining wall should be constructed so that it is wholly within the appellant’s land.[40] That being so, his Honour was not shown to be incorrect in taking the 32 centimetre figure as the correct figure upon which to focus when determining whether or not an initial order for removal should be made.
[40] This approach was consistent with Mr Robinson’s opinion that any new retaining wall and fence should be erected such that the northern face of the structure is flush with the subject boundary. Such an order was within the Magistrate’s power under s 12(2)(a), Fences Act 1975 to make orders as to the line of fence to be adopted.
I find on the basis of the whole of the evidence that the appellant does not make out this complaint.
The Magistrate erred in his findings concerning the present quality of the Retaining Wall and brush fence and the need to replace them (grounds 1, 2, 15 and 16 of appeal)
The matter of the quality of the fence is not a factor to be considered when determining whether there is an encroachment; rather, it is merely one factor, amongst many, to be considered when determining whether there should be an order to remove what has been determined to be an encroachment.
The appellant submits that both the Fence and the Retaining Wall are in adequate condition (putting aside the matter of the excavation addressed below) and that the Magistrate failed fully to consider this fact in ordering their removal and replacement. The appellant relies on the two reports of Mr Whelan and the report of Mr Robinson together with the fact that the structure is still in existence and has been for a number of decades.
It is true that Mr Whelan was fairly sanguine as to the condition of the Fence (apart from the excavation issue) but it is to be noted that Mr Robinson in his report, by contrast, opined that the Retaining Wall requires “extensive remedial work”:
From the rear of the block to about the front of the respondent’s (sic) carport there is a stone retaining wall up to about one metre in height; I could see no concrete footing under the stone work.
…
The brush fence is in good condition as is the concrete plinth; the stone base is a bit of a mishmash. If it is to stay this wall requires extensive remedial work, that may not be feasible because of the plinth on top of it.
When confronted with Mr Robinson’s opinion that the wall requires “extensive remedial work”, Mr Whelan seemed to qualify his view somewhat:[41]
13. … [T]he existing retaining wall does require some areas to be repointed where the mortar has deteriorated over time. It is also my opinion that it would be preferable for the brickwork section to be replaced with stone as there is no existing bond or shear connection where the vertical joints meet between the different wall materials. The replacement of the brickwork and the necessary repointing can be carried without risk of the retaining wall deteriorating.
None of this work would be required if a full height concrete panel, sleeper or upstand wall were installed in front of the existing wall.
[41] Exhibit D2, 58.
In his evidence, Mr Robinson indicated that he did not regard repointing of the wall as sufficient:[42]
[42] T114-115, 125-127.
QSo if that section of the wall was to be replaced with stone to match the remainder of the wall and there was some repointing done to the wall, would you accept that that would be adequate in terms of remedial work?
ANo. I would like to see the wall done properly and that includes a footing underneath it. … I don’t agree that the wall has been built properly. I don’t agree that it can be patched up. It has to be done properly and that requires a raw footing underneath it and if you start doing that everything collapses.
…
QLooking at the second book of documents and the report of PT Design commencing at p.20. … [B]ut for the excavation if an engineer such as Mr Whelan has indicated that this wall does not require a footing is that something that you would agree with?
AWell gravity walls that are designed by engineers are one thing. The wall that’s built by a home owner or a builder is something else. If the engineer says there is no need for a footing under there I can’t – I don’t imagine an engineer – but my impression is that you need a footing underneath the wall. It’s stood there for ages but there’s no telling whether it will or will not endure much longer with building work going on next door.
…
AWhether the wall and the fence is removed is a matter for the court. I was only commenting on what I believed was the proper way to do it, in other words that it couldn’t be properly repaired to satisfy the requirements of the Building Work Contractors Act 1995, which requires the work to be done in a proper manner to accepted trade standards. My view was accepted trade standards couldn’t apply to that wall …
…
QI think your primary concern in relation to the wall was its lack of footing was it not?
AWell, no. The whole wall was a mishmash of different materials. It needed matching up – pulling bricks out, matching up the stone. It needed a lot of work and when you start on that sort of work without knowing how it was ever built and what is behind it, as soon as you pull it out you would depend entirely on that plinth on the top. The plinth on the top also was following an irregular line, if I can recall. That plinth may have been properly done. It may have been well reinforced to the extent that it could span any irregularities that might occur in that wall. But if you start moving that wall around, taking bricks out to put stone in, then you could create problems.
Mr Robinson’s opinion was given with his express acknowledgement that he does not have any engineering qualifications:[43]
QIf an engineer has given a report to the effect that that could be done without compromising the wall and indeed that the lack of a footing can be dealt with … [t]hen you would defer to that engineering –
AYes.
[43] T127.
In light of the above, it does seem that there was a divergence between the opinion of Mr Whelan and of Mr Robinson as to the adequacy of the Retaining Wall.[44] It seems that while Mr Whelan regarded the Retaining Wall (putting aside the excavation) as structurally adequate, Mr Robinson was firmly of the opinion that it had not been built in accordance with modern building standards, particularly because it lacks a proper footing.
[44] I refer here only to the Retaining Wall. The brush fence was deemed by both experts to be in good condition but, as indicated above, the structure is to be regarded as a composite whole for the purposes of determining its removal as an encroachment.
Despite this, it would appear that the evidence of the two experts can be largely reconciled. The following observation of Mr Whelan is instructive:[45]
It is my opinion that despite the allowance in the Act to excavate up to the maximum 600mm allowed by the Act on the boundary, any structure, in this case the retaining wall, must have a footing present. Retaining walls of relative low height such as yours are usually gravity walls where the weight of the wall itself when founded on firm ground, is sufficient to act against the lateral forces developed from the retained soil. It is clear that this is no longer the case with your wall and as such I believe the wall, in part, has been undermined. (Emphasis added)
[45] Exhibit D2, 22.
Thus, both experts can be taken to express largely the same view that the Retaining Wall needs an adequate footing present in light of the excavation on the respondents’ land; the Retaining Wall, being a gravity wall, was sufficient where no excavation had taken place but in the current circumstances it has become inadequate and requires a proper footing. The assertion by counsel for the appellant that an engineer (Mr Whelan) has suggested that the wall needs no footing overstates the matter; indeed, Mr Whelan suggested that a footing (preferably the concrete upstand) is in fact necessary.
The appellant complains of the Magistrate’s finding at paragraph [131] that the Fence “is certainly not a fence that would be erected to comply with modern building standards”.[46] However that statement must be taken in context. His Honour stated at paragraph [131]:[47]
I agree that the Court has an obligation to consider all contingencies when faced with an application for removal of an existing fence. It is significant that the current fence may be adequate from the defendant’s perspective but it is not on the true boundary. Further it is certainly not a fence that would be erected to comply with modern building standards. (I accept recent changes to planning laws that recognise the inherent dangers of brush fences – particularly fences located within 3 m of dwellings). The defendant may well hold the genuine opinion that a brush fence has a better outlook than a Colorbond fence, but her opinion may be subjective.
[46] Reasons for Decision.
[47] Reasons for Decision.
The context makes it clear that his Honour was noting non-compliance with modern building standards as one of many factors to be taken into account. It was legitimate to weigh in the balance that an order for removal and replacement would result in a new modern fence, an advantage to be weighed against the disadvantages that might be associated with replacement.
The appellant has not demonstrated that his Honour erred in his approach to this matter and does not make out this complaint.
The Magistrate erred in his findings concerning the Sarneckis survey and in finding that the appellant had prior knowledge of the encroachment (grounds 17-23, 26-32 of appeal)
The appellant submits that the Magistrate’s finding that the appellant had prior knowledge of the encroachment, or of any potential boundary issues, was not justified by the evidence. The findings complained of are as follows:[48]
[103]6. The parties were unaware of the encroachment or any issue in relation to the boundary (in my respectful view, however, that submission belies the evidence given by Mr Sarneckis that he at least was aware and on the balance of probabilities had informed the late Mr Hogarth of the fact that the retaining wall was at the very least straddling the boundary. …
…
[133]I also accept Mr Karp’s submission that the brush fence was erected by the Hogarths when they were aware of potential boundary issues. (I agree with Mr Karp that Mrs Hogarth has not been frank and fulsome in her evidence in this regard). It should have been built evenly straddling the boundary. It is not, and on the evidence only its southern face is on the boundary. The entire essential infrastructure for the fence is on the plaintiffs’ land.
[48] Reasons for Decision.
The appellant stated in evidence that she and her husband were unaware of the encroachment of the Retaining Wall until being informed by the respondents.[49] She stated that Mr Sarneckis’ measurements resulting from his 1991 survey, which he gave to her husband, were confined to the question of whether there was sufficient room to put in a balcony on the northern side of the appellant’s house and that there had been no issue raised concerning the boundary.[50] In cross-examination, she denied deliberately causing the fence be constructed on other than the true boundary when the fencing works occurred in 1997/1998.[51]
[49] T150, 152.
[50] T152, 164 (cross-examination).
[51] T171, 187.
Mr Sarneckis’ evidence tended to support that of the appellant. Mr Sarneckis gave details of his 1991 survey, including the information that he had provided to the appellant and her late husband. He stated that he had not addressed the topic of where the Retaining Wall was located in relation to the position of the subject boundary.[52]
[52] T137-138.
I conclude that there is no positive basis for the Magistrate’s finding that Mr Sarneckis knew of the encroachment or any potential boundary issue or that he informed Mr Hogarth or the appellant of any such issue. There remains the Magistrate’s finding that Mrs Hogarth had not been frank and fulsome in her evidence on her knowledge of the boundary issue and it may be that this finding was based on the Magistrate’s observation of her demeanour and his consideration of her evidence as a whole. However, one cannot be confident of that and accordingly one must proceed on the basis that the Magistrate’s finding on the balance of probabilities that Mr Sarneckis was aware that the Retaining Wall was straddling the boundary and had informed the late Mr Hogarth of that fact (and inferentially, that Mrs Hogarth knew) was unjustified.
However, this by no means produces the result that the appeal thereby succeeds per se. The incorrect finding here is a blemish on the judgment and will have to be considered together with any other established blemishes in order to determine whether the appeal succeeds. Accordingly, I will return to this matter after considering the other grounds of appeal.
The Magistrate erred in his approach to, and findings concerning, the excavation by the respondents and associated matters (grounds 3-13 of appeal)
The appellant submits that the excavation has jeopardised the structural integrity of the Retaining Wall such as to necessitate remedial action and, that being so, the action that causes the least disruption and detriment to the appellant should be taken. (She also submits that the Retaining Wall should be preserved by adopting another alternative, for example Mr Whelan’s proposal of a concrete upstand, and that to the extent that the Magistrate ordered removal of the Retaining Wall, rather than adopting such an option, his Honour has erred. This matter is considered below).
Both Mr Whelan and Mr Robinson acknowledged that the excavation has had some impact on the Retaining Wall. In his first report, Mr Whelan stated that he believes the Retaining Wall “in part, has been undermined”:[53]
In any event, the ground appears to have been excessively excavated beyond what is likely permitted by the Act … A rough tape measurement taken on site indicates the excavation is some 800mm …
[53] Exhibit D2, 22; See also exhibit D2, 56.
In his evidence, Mr Whelan explained:[54]
Q… [U]nless … the excavation’s remedied, then the wall is at risk of collapse?
AThat’s right, if the cut excavation is left exposed again, as I said in my report, through weathering, storms, wind mainly, as well as rain, the soil could move from underneath the wall and therefore subside the wall.
[54] T208. See also Exhibit D2, 23.
Similarly, Mr Robinson acknowledged:[55]
A… It’s stood there for ages but there’s no telling whether it will or will not endure much longer with building work going on next door.
…
QIt is, would you agree, really the excavation which may have caused the wall to be compromised?
AWell it could do that.
[55] T115-116.
It may be noted from the above that the evidence is in an uncertain state as to whether any actual damage has been caused by the excavation. Both experts indicate that no damage has presently been caused to the Retaining Wall which is directly attributable to the excavation; to the extent that the excavation creates a risk of damage to the wall, such risk has not presently materialised. As the Magistrate correctly observed:[56]
[126]Mr Whelan is the only witness who has sufficient expertise to comment on the potential dangers caused by the excavation. While his opinion may have been given more weight in an application under s 60 of the Development Act, his evidence in my view falls well short of proof on the balance of probabilities of proven actionable damage to the wall (whether in nuisance, trespass or negligence).
[56] Reasons for Decision.
It should also be noted that given the absence of a proper footing, the Retaining Wall would only have remained an adequate structure so long as the ground level was maintained on the respondents’ land. Excavation is a common incident of the development of residential land, and this issue was not unlikely to arise at some point; one should not assume that the respondents are to be deemed culpable for exposing an inherent flaw in the Retaining Wall through attempting to utilise their land to its full potential.[57]
[57] Re Perdita Pty Ltd [1986] ANZ ConvR 698, 701 (De Jersey J).
There was a suggestion by Mr Whelan that the respondents’ land has been “excessively excavated” to 800 millimetres, rather than the 600 millimetres permitted by the combination of s 60(1), Development Act 1993 and reg 75(2)(a), Development Regulations 2008.[58] However, this evidence was quite uncertain. Mr Whelan himself acknowledged that this was only “[a] rough tape measurement taken on site”.[59] Importantly, he does not elaborate as to the precise impact the alleged 200 millimetres of additional excavation would have had on the Retaining Wall which would have been avoided had only 600 millimetres of excavation occurred.
[58] This is also relied upon by the appellant in aid of her counterclaim, which will be discussed below.
[59] Exhibit D2, 22.
In all of the circumstances, it was open to the Magistrate to come to the conclusion that the Retaining Wall should be removed irrespective of the matter of the excavation. His Honour properly took into account all matters relating to the excavation when apportioning contributions. Thus, his Honour stated:[60]
[137]On a Fences Act application a Court must make an order for contribution and it has been held that order must reflect the extent to which a proposed new fence, etc on the boundary benefits a respective party. That will not always be a shared benefit and in this case the short to medium term benefits to the plaintiffs certainly exceed the benefit to the defendant. In my view the appropriate balance is to find that the plaintiffs should meet two-thirds of the costs and the defendant one-third of the costs of removing and replacing the existing retaining wall and fence.
[138]I do not accept any special order should be made as to the defendant meeting additional costs in shoring up the earth-wall while the work occurs. This cost should be included in the overall work and each party should contribute to the extent identified above.
[60] Reasons for Decision.
The appellant has not demonstrated that his Honour erred in his approach to this matter and does not make out this complaint.
The Magistrate erred in that he failed to find that an alternative to replacing the Retaining Wall (such as the concrete upstand option) should be adopted (grounds 36-43 of appeal)
The appellant submits that the costs associated with the removal of the Retaining Wall and construction of a new Retaining Wall and Fence greatly exceed the cost of other available alternatives. The option most stressed by the appellant was the concrete upstand referred to by Mr Brewster and Mr Whelan. The appellant makes the following submissions as to the comparative costs:[61]
125. In summary, … on the basis of the evidence at trial:
125.1. The total costs associated with the new retaining wall and fencing the subject of the respondents’ Application and the learned Magistrates Reasons are in order of $36,619 to $40,659 (excluding the surveying costs and engineering costs that have already been incurred by the respondents), plus the costs of the electrical works referred to in paragraph 123.5.2 above and the cost of removal and replacement of the appellant’s vegetation as referred to in paragraph 123.15.5 above, which additional costs, one can infer, are likely to be substantial.
125.2. The total costs that would be incurred by the appellant in connection with the new retaining wall and fencing the subject of the learned Magistrates Reasons are in the order of $18,086 to $21,090, plus the additional costs referred to in the preceding sub-paragraph.
125.3. The cost of the full height concrete upstand option is in the order of $10,450 to $11,029.
125.4. The cost of the minimum height concrete upstand option is in the order of $8,603 to $10,595.
126.Accordingly, the costs (for each of the appellant and the respondents) would be substantially more in relation to the works in connection with the respondents’ Application and the learned Magistrate’s Reasons than they would be for the alternative works put forward by the appellant. [Footnotes omitted]
[61] Appellant’s Amended Summary of Argument.
At trial, much time was expended on the matter of the concrete upstand option. The primary evidence on this was the report of Mr Brewster of the WT Partnership[62] which sets out in detail the cost of a full height concrete upstand and, alternatively, a minimum height concrete upstand. Quotations for the construction of the new retaining wall from Tilt Build Pty Ltd[63] and Innovative Walling,[64] and for the construction of the Colorbond Good Neighbour fencing,[65] were also among the documents tendered. The quotations from the WT Partnership[66] and Innovative Walling[67] each contained estimates for the cost of underpinning which would be necessitated by the removal of the Retaining Wall.
[62] Exhibit D2, 69-79.
[63] Exhibit D1, 4.
[64] Exhibit P8.
[65] Exhibit P1, 6.
[66] Exhibit D2, 76-77.
[67] Exhibit P8.
Mr Whelan, in his second report, expressed his opinion on the matter thus:[68]
5. … In my opinion there is an easier and less expensive way to retain the soil and therefore maintain the stability of the existing retaining wall. That is to use the pavement slab to the side of the proposed house with a concrete upstand cast insitu …
6.The minimum height for the upstand should be 100mm past the bottom of the stone wall. Minimum thickness would be 100mm. It would not need to extend to the full height of the wall however it could if required for an aesthetical purpose.
[68] Exhibit D2 57.
However, Mr Whelan’s in Court evidence as to the comparative cost savings associated with the concrete upstand option was much more qualified:[69]
QOne of the proposals that you had or methods that you have indicated as being suitable in terms of addressing the excavation, is to erect a concrete panel wall directly in front of the existing stone retaining wall. In your opinion, would the cost of undertaking that be comparable with the existing retaining wall being removed in its entirety and replaced with a new retaining wall?
AI probably couldn’t say with any certainty because it’s not my area of expertise but I would suggest that it probably would be cheaper to keep the existing wall.
[69] T199.
Mr Robinson was of the opposite opinion to Mr Whelan. He suggested, while conceding that he too lacked expertise in the area of costing, that the construction of a new retaining wall and fence would be a better option to the construction of the upstand:[70]
AOf course it’s going further than just patching up the wall. This is including this concrete up-stand that the engineer has recommended. When you put this against the cost of the new wall I would think that the new wall would be a better option, as far as the costs are concerned. But I don’t do costings so I can’t talk to you about costings.
QBut aesthetically is (sic) would be better and also –
AAnd it would give more room. Yes, of course it would be a fair thing.
[70] T126.
Aside from the demolition and reconstruction works proper, the appellant also asserts that there would be certain additional costs associated with the removal of the Retaining Wall and the erection of the new structure:[71]
123.15. Such additional costs include:
123.15.1.The cost of moving the appellant’s pond, which would require electrical and landscaping works and potentially the replacement of the pond itself.
123.15.2. The cost of additional electrical work to move the two uplights and four power points that are situated along the brush fence.
123.15.3. The cost of relocating the stormwater pipes that are situated under the ground alongside the appellant’s side of the brush fence.
123.15.4. The cost of moving the appellant’s irrigation system that is attached to and runs along the brush fence, which works would need to be carried out by an irrigation contractor.
123.15.5. The cost of removing and replacing the vegetation along the appellant’s side of the brush fence. [Footnotes omitted]
[71] Appellant’s Amended Summary of Argument.
A quotation of Visual Landscape Gardening Pty Ltd was tendered indicating the likely value of these costs.[72]
[72] Exhibit D1, 54.
In assessing this matter, the Magistrate had the benefit of particularly extensive written submissions from the appellant on this issue, namely:
·initial written closing submissions, filed prior to the respondents’ submissions;
·an annexed table of costing (also provided on the appeal); and
·further closing submissions, filed after the respondents’ submissions.
All the matters relevant to this issue were before the Magistrate and the appellant has presented nothing to suggest that his Honour did not adequately take all relevant matters into account in relation to all alternatives to replacing the Retaining Wall (including the concrete upstand option).
In my view it was open to the Magistrate to find that despite the higher costs associated with the construction of the new retaining wall and fence, the prejudice to the respondents if the existing retaining wall and fence were preserved would significantly outweigh the appellant’s interests in maintaining the status quo. It was also within the Magistrate’s discretion to take into account what he perceived as the longer term benefits of marking the true boundary.
The Magistrate erred in the overall exercise of his discretion in ordering the removal of the Fence, determining the manner of its replacement, and the apportionment of the expenses in all the circumstances (grounds 3-10, 13, 24, 25, 35-44 of appeal)
The appellant contends that the Magistrate erred in exercising his overall discretion to determine the ultimate course to be followed. Mr Munt for the appellant submitted that various matters militated against an order for the removal of the Retaining Wall and I will consider them in turn.
Is the encroachment trifling?
The precise degree of the encroachment has been considered in detail above. The appellant submits that the Magistrate should have found that the land occupied by the part of the Retaining Wall over the boundary is “trifling” in all the circumstances. In particular, she submits that it is trifling in light of the facts that the respondents’ property is approximately 750 square metres in area and is neither small nor narrow, being 18.29 metres wide at the front, 18.55 metres wide at the rear, 39.24 metres long on the southern boundary and 42.20 metres long on the northern boundary.
The appellant referred the Court to several cases to support her contention. In J & D Butland v M & J Cole,[73] the New South Wales Land and Environment Court declined to grant an application to remove, inter alia, a section of sandstone retaining wall 13 metres in length encroaching variable distances ranging between 18 to 65 centimetres. Bignold J referred to a number of statutory considerations under the New South Wales Encroachments of Buildings Act 1922, including that:[74]
·the encroachment represented an area of 3 square metres out of an area of some 1,093 square metres;
·the encroachment did not obstruct or interfere with the pedestrian passageway;
·the value of the land subject to the encroachment was negligible, and accordingly, so was the loss or damage occasioned to the applicants by the encroachment;
·the loss or damage which would be incurred by the respondents if ordered to remove the encroachment would be substantial (it was estimated that demolition and reconstruction of the retaining wall would cost $27,000);
·the encroachment came into existence before the applicants and the respondents acquired their respective adjoining properties and probably involved the amicable actions of the predecessors in title; and
·the encroachment was not adversely affecting the applicants’ enjoyment of their property.
[73] (Unreported, New South Wales Land and Environment Court, Bignold J, 19 June 1995).
[74] J & D Butland v M & J Cole (Unreported, New South Wales Land and Environment Court, Bignold J, 19 June 1995) 8-10.
It is true that the encroachment in that case was about the same relative size as the present encroachment. However, Bignold J largely relied upon two particular factors in rejecting the application for removal and reconstruction. First, that the encroachment was not adversely affecting the applicants’ enjoyment of their property and second, that the application was brought for the collateral purpose of removing a dilapidated structure rather than because the encroachment itself caused the applicants significant concern. His Honour noted:[75]
However again, it is not the encroachment that is the source of that concern but the existence and the condition of the retaining wall itself, independent of the encroachment. For reasons to be explained whatever be found to be the state or degree of instability of that wall, that finding is not a finding of any encroachment and therefore any relief in respect of that finding falls beyond the scope of the remedy provided by the Act.
…
I am of the firm opinion that I should, in the exercise of discretion, refuse the principal relief claimed by the Applicants because it is based upon trifling encroachments not adversely affecting the Applicants' enjoyment of their property and because their true grievance concerning apprehended injury by the collapse of the retaining wall, is more properly founded upon the law of torts justifying the grant of a quia timet injunction.
(Emphasis in original)
[75] J & D Butland v M & J Cole (Unreported, New South Wales Land and Environment Court, Bignold J, 19 June 1995) 3, 10.
Thus, in essence the complaint was really about the structural integrity of the wall; there was no suggestion that it interfered with the applicants’ plans for the land or in any way impinged upon their ability to make use of their land.
The appellant also refers to a decision of the New South Wales Supreme Court, Hill v Higgins, and in particular the following comment of Harrison J in relation to an encroachment measuring between 3 and 15 centimetres, with an average of any expressed measurements in the order of 5.5 centimetres:[76]
[46]The retaining wall was present when Mr and Mrs Hills purchased their property. Mrs Higgins purchased her property after that. The extent of the encroachment, and hence the trespass, by the wall is truly insignificant. It caused no readily discernible structural incursion onto Mr and Mrs Hills’ property and did not in my opinion have any detectable, let alone adverse, impact upon Mr and Mrs Hills’ exercise or enjoyment of his or her proprietary rights. This emerges clearly when one steps back from a microscopic examination of jurisprudential theory in order to view the competing claims using common sense and a realistic understanding of the world. I cannot accept in all of these circumstances that an award of anything other than nominal damages for this trespass is appropriate.
[76] [2012] NSWSC 270.
Having found that no error has been demonstrated in the exercise of the Magistrate’s discretion to order the removal of the Retaining Wall and the Fence pursuant to s 4(2)(c), Encroachments Act 1944, it is strictly unnecessary for me to consider whether the same orders for removal would be justified under s 12(2)(h), Fences Act 1975. However, I indicate that in so far as the orders may be made under the Fences Act 1975, they would constitute a just exercise of discretion.
The orders for erection of the new retaining wall and fence and for contribution pursuant to s 12(2), Fences Act 1975
I turn to consider the exercise of the Magistrate’s discretion pursuant ss 12(2)(a), (i) and (j), Fences Act 1975. The Magistrate made the following orders:
·that there should be erected in place of the Retaining Wall and the Fence a new retaining wall and Colorbond Good Neighbour fence (the colour of which is to be selected by the appellant) (the works);
·the new fence and retaining wall is to be constructed so that its northern face is flush with the subject boundary;
·the respondents are to pay two-thirds of the cost of the works;
·the appellant is to pay one-third of the cost of the works;
·the appellant and the respondents should bear in equal shares any additional costs in shoring up the earth-wall while work occurs;
·the respondents should not be compelled to contribute to the costs of restoring garden features in the appellant’s land or in re-routing any electrical wiring or water pipes;
·the respondents are to give the appellant at least seven days prior notice of the date contractors will commence the removal and reconstruction works. The respondents must instruct the contractors in writing to take all reasonable care to ensure minimal damage is to occur to the appellant’s gardens, and a copy of that letter of instructions is to be provided to the appellant; and
·the appellant, prior to the date of the commencement of works, is to ensure that any fixtures or fittings on the Fence or likely to be affected by the removal of the fence are removed or redirected.
The nature of the new fence
The Magistrate’s order for the erection of a new Colorbond Good Neighbour fence was based on the following finding:[98]
[131]I agree that the Court has an obligation to consider all contingencies when faced with an application for removal of an existing fence. It is significant that the current fence may be adequate from the defendant’s perspective but it is not on the true boundary. Further it is certainly not a fence that would be erected to comply with modern building standards. (I accept recent changes to planning laws that recognise the inherent dangers of brush fences – particularly fences located within 3 m of dwellings). The defendant may well hold the genuine opinion that a brush fence has a better outlook than a Colorbond fence, but her opinion may be subjective.
[98] Reasons for Decision.
This finding, and the Magistrate’s order, was well within his Honour’s discretion pursuant to s 12(2)(a) to make any finding, determination or order in relation to the erection of a fence, and the nature of the fence to be erected. The appellant has not demonstrated that the Magistrate erred in this regard.
The orders for contribution
The appellant complains that the Magistrate erred in ordering that the appellant pay one-third of the cost of removing and replacing the Retaining Wall and the Fence. She also asserts that the Magistrate erred in ordering that the respondents should not be compelled to contribute to the costs of restoring garden features in her land or in re-routing any electrical wiring or water pipes.
I consider that the Magistrate’s orders for contribution were within his discretion to determine the cost of fencing work and the persons by whom and the proportions in which the cost is to be borne pursuant to s 12(2)(i). His Honour’s order that the appellant and the respondents should bear in equal shares any additional costs in shoring up the earth-wall while work occurs was also within this discretion. I find that the appellant has identified no error in the Magistrate’s orders, and that the orders for contribution were appropriate in the circumstances.
The directions to the parties
The appellant also takes issue with the Magistrate’s direction that the appellant, prior to the date of the commencement of works, ensure that any fixtures or fittings on the Fence or likely to be affected by the removal of the fence are removed or redirected. This direction, and the directions to the respondents about giving notice of the commencement of the works and instructing the contractors to take care, were within the Magistrate’s discretion to make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of fencing work, pursuant to s 12(2)(j). The Magistrate also gave liberty to the parties to apply for additional or incidental orders in certain circumstances[99] which was particularly apposite in this case for the avoidance of injustice to the appellant.
[99] Reasons for Decision [141].
I find that the appellant has demonstrated no error in the exercise of the Magistrate’s discretion under s 12(2), Fences Act 1975. Each of the orders were appropriate and tailored to the facts of the case.
The Magistrate erred in his disposition of the appellant’s counterclaim (grounds 4-10, 45 of appeal)
The appellant complains of the Magistrate’s refusal to make any of the orders sought by the appellant by way of counterclaim at trial. Ground 45 of appeal is as follows:
45.The learned Magistrate erred in his characterisation of the appellant’s counterclaim at [120], [122] and [126] in that:
45.1. the counterclaim did not seek orders by way of specific performance, being a remedy relating to the performance of a contractual obligation;
45.2. the counterclaim did not seek orders by way of permanent injunctive relief to prevent the removal of the wall and fence, but rather sought declaratory relief under the Encroachments Act to the effect that it was just in all the circumstances that the retaining wall not be removed;
45.3. the counterclaim only sought damages in the event that the excavation carried out by the respondents caused any damage to the retaining wall (which damages were not sought at trial, as no such damages had arisen at that point in time);
45.4. the learned Magistrate failed to find or take into account adequately or at all that the experts reports of Mr Whelan established that the respondents or their contractors had (via the excavation) compromised the retaining wall, thereby giving rise to a basis for the interim injunction sought in paragraph 10.1 of the counterclaim (with respect to which the appellant had sought to be heard prior to the delivery of the learned Magistrate’s decision).
Claim for declaratory relief
I accept the appellant’s submission that her Amended Defence and Counterclaim does not seek orders of specific performance or orders for permanent injunctive relief. However, this does not advance the appellant’s case on appeal; to the extent that the Magistrate did mischaracterise the appellant’s request for declaratory relief under the Encroachments Act 1944, the complaint concerning such mischaracterisation is rendered redundant by my conclusion above that the Magistrate did not err in exercising his discretion to order the removal of the encroachment.
Damages claim
The appellant’s further complaint that the Magistrate mischaracterised her claim for damages is misconceived. A claim for damages can only ever be made on the basis that damage is proved to have been suffered. The appellant’s counterclaim pleads: “Damages in the event that the Excavation causes any damage to the Stone Wall”. That pleading requests that the Court assess at some future time whether and to what extent damage has occurred. As indicated above, Mr Whelan’s evidence was equivocal on this topic; his reports, and that of Mr Robinson, note that there simply exists a risk that damage might occur to the Retaining Wall. The Magistrate approached this claim correctly and noted the paucity of evidence in this regard. His Honour determined that it had not been proven on the balance of probabilities that damage had been caused. This finding was open to him and no error has been demonstrated in this regard. In any event, the matter of possible or potential damage to the “stone wall” (the Retaining Wall) is rendered redundant by my conclusion above that the Magistrate did not err in ordering the removal and replacement of that Retaining Wall.
I further note the appellant’s asserted reliance on a suggested breach of s 60(1), Development Act 1993 and reg 75(2)(a), Development Regulations 2008 by the respondents.[100] A finding of a breach of s 60(1) may have serious consequences, being an offence punishable by a fine of up to $10,000 pursuant to s 60(2). In those circumstances, much more solid evidence was required than the mere assertion of Mr Whelan that “the ground appears to have been excessively excavated beyond what is likely permitted by the Act” based on “[a] rough tape measurement”.[101] Once again, this matter has been rendered redundant by my conclusion above that the Magistrate did not err in ordering the removal and replacement of the retaining wall.
[100] I do not take the appellant to have asserted a claim for relief pursuant to s 85, Development Act 1993.
[101] Exhibit D2, 22 (Emphasis added).
Urgent interlocutory injunction
Finally, the appellant complains that the Magistrate erred in not granting an interlocutory injunction pending determination of the matter at trial; she asserts that in refusing that application, his Honour failed to take adequately into account the two reports of Mr Whelan concerning the effect of the excavation on the Retaining Wall. The Magistrate’s reason for refusing to order such an injunction was that its only purpose would be to preserve the status quo until there had been a final determination of the matter. His Honour considered that purpose unnecessary. The appellant has not demonstrated error by the Magistrate in this regard.
Accordingly, I find that the appellant has not established that the Magistrate erred in refusing to make the orders sought on the counterclaim.
Disposition of the appeal
I now consider the effect of two blemishes on the Magistrate’s judgment I have identified above: first, the incorrect factual finding of prior knowledge of the encroachment by the appellant; and second, the minor confusion in the Magistrate’s reference to the evidence of Mr Robinson and Mr Whelan.
In Norbis v Norbis, Mason and Deane JJ referred to the familiar passage in House v The King[102] and stated: [103]
The sense in which the terms “discretion” and “principle” are used in these remarks needs some explanation. “Discretion” signifies a number of different legal concepts: see, eg, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp 3-10. Here the order is discretionary because it depends on the application of a very general standard — what is “just and equitable” — which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal. [Footnotes omitted]
[102] (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[103] (1986) 161 CLR 513, 518-519.
Obviously an error of fact may lead to the need for a discretion to be freshly exercised on appeal. However, I do not consider that any error of fact must inevitably lead to this result; some analysis of the nature and seriousness of the particular error(s) needs to be made.
In this area, at least for South Australia, the locus classicus remains the judgment of Bray CJ in Churchill v Badenochs Transport Ltd (Churchill).[104] His Honour there stated:[105]
[104] (1971) 1 SASR 63.
[105] Churchill v Badenochs Transport Ltd (1971) 1 SASR 63, 64-65.
But it may be clear that the trial court has misapprehended the evidence or that its reasoning contains a non sequitur. If this relates merely to a peripheral or incidental matter which could have had no effect on the final result, once again it may be ignored. If it relates to a matter vital to the conclusion reached, then that conclusion cannot stand. What, however, if the mistake played some part in the reasoning leading to the conclusion but, nevertheless, the same conclusion might well have been reached without it?
…
… I discussed the matter in R v Ireland (No 1), when I cited the test laid down by the Court of Criminal Appeal in England in R v Ellsom when the Court said, at p 12:—
The question here, therefore, is whether if properly directed the jury would have returned the same verdict. We feel it impossible to say with any certainty that they would. The only judgment, therefore, that we can give is that the appeal must be allowed.
However this may be, I think that some such test is to be applied in a trial by a judge alone, where, of course, it cannot be thought that the judge as a juror can correct himself for a mistake made by him as a judge. Perhaps in such a case “certainty” goes too far. Perhaps “probability” should be substituted in a civil case.
…
I think that in a case like this we have to interfere once we are satisfied that there are errors of fact or reasoning in the reasons for judgment of the learned Special Magistrate which could have affected the result, unless we think that substantial justice has nevertheless been done. …
It may be that some questions remain as to exactly how “substantial justice” is to be determined in the area of civil litigation. I note that in the later decision of Nikolettos v Johnston,[106] an appeal against a decision of a Magistrate in a civil case which “essentially revolved about just who it was that went through a red light at a junction”,[107] Legoe J applied the “same result must have or would have been achieved” test. There the Magistrate attended at the accident scene during his lunch break and took into account his observed movements of the traffic at the subject intersection. Legoe J found that this was an impermissible course to take but nevertheless dismissed the appeal. His Honour stated:[108]
[8]… The question remains in this case whether the same result would have been arrived at even if the matters referred to by the learned Special Magistrate which were not in evidence had not been part of his decision, cf Pope v Ewendt (1977) 17 SASR 45 at 50-51. For the reasons I have mentioned in relation to grounds 1 and 2, particularly the findings accepting the evidence of the respondent Mrs Johnston, I am satisfied and in my judgment it is clear that the same result must have or would have been achieved even if the observations of the learned Special Magistrate at his view had been excluded. …
[106] [1991] SASC 2912.
[107] Nikolettos v Johnston [1991] SASC 2912 [2] (Legoe J).
[108] Nikolettos v Johnston [1991] SASC 2912.
I note that Legoe J refers to the well known decision of Bray CJ in Pope v Ewendt,[109] although that was an appeal against a criminal conviction and, as Bray CJ noted in Churchill, different considerations may there apply.[110]
[109] (1977) 17 SASR 45, 50.
[110] See generally Theophilus v Police (2011) 110 SASR 420, 438-440 [50]-[56].
Be that as it may, the Federal Court has on several occasions applied the decision in Churchill. In Golden Editions Pty Limited v Polygram Pty Ltd, Kiefel J (with whom Burchett and Tamberlin JJ agreed) stated:[111]
That there be shown to be an error at one point in the judgment does not mean that the appeal will succeed, even though it concerns a matter vital to the ultimate conclusion. For what needs be considered is what part, if any, it played in the process of reasoning to the conclusion, and even if it be found to have played some part, whether the same conclusion should have been reached without it, so that “substantial justice has nevertheless been done”: Churchill v Badenochs TransportLtd (1971) 1 SASR 63 at 64-65, referred to with approval in Westpac Banking Corporation v Spice (1990) ATPR 41-024 at 51,399. …
[111] (1996) 61 FCR 479, 483.
In Cordelia Holdings Pty Ltd v Newkey Investments Pty Ltd, the Federal Court (Black CJ, French and Tamberlin JJ) stated:[112]
[60]This review of the inconsistencies in Mr Saffron’s evidence found by the trial judge shows that in every instance except one the challenge to the judge’s findings must fail. The one instance in which his Honour does appear to have been in error concerned a relatively minor matter. Moreover, the matter in question was taken by his Honour as no more than additional support for a conclusion as to credibility that his Honour had reached on other grounds. The error did not concern some matter of central logical importance to the finding about credibility. It was not an error about some fact vital to the resolution of the case nor was it of a nature such as to have a cascading effect upon the judge’s resolution of the larger issues in the case (see Rosenberg v Percival at 448 [43] per McHugh J; Churchill v Badenochs Transport Ltd (1971) 1 SASR 63 at 64 per Bray CJ).
[61]It certainly cannot be said that his Honour “failed to use or palpably misused his advantage” in this context or in placing some weight on the other inconsistencies in Mr Saffron’s evidence, nor can it be said that no advantage which his Honour enjoyed “by reason of having seen and heard the witnesses” could be sufficient to explain or justify his conclusions. In light of our conclusion no case has been made out for this Court to interfere with his Honour’s general approach to assessing Mr Saffron’s credibility and the fact that the appellant has not demonstrated that his Honour made any error in his inconsistency findings sufficient to put in question his overall findings, the challenge to his Honour’s conclusion that Mr Saffron’s evidence was generally not safe to rely upon must fail.
[112] [2004] FCAFC 48.
In the present case, I consider that it will do no harm to the interests of the appellant if I take the approach adumbrated by Bray CJ in Churchill and recognise a high obligation on the respondent to satisfy me that “the same result must have or would have been achieved”.
As to the incorrect factual finding of prior knowledge of the encroachment by the appellant, clearly this finding did not affect the Magistrate’s approach to central issues such as the extent of the encroachment, the degree of loss of amenity by the appellant, the relative degrees of prejudice or inconvenience to the parties, the respective efficacy and expense of various remedial courses, and so on. Nor did the incorrect finding against Mrs Hogarth lead to the Magistrate rejecting her evidence in any other important area. In the circumstances of the present case, the effect of the finding was limited to a minor factor in the ultimate exercise of discretion. Importantly, it is quite apparent that this factor was not influential upon the ultimate result; that result would have been the same if the finding had not been made. Thus, his Honour stated:[113]
[91]In my view neither party was entirely frank in their approach to the matter in the outlined circumstances. I agree that it is preferable to look beyond personality and consider the underlying principles.
[113] Reasons for Decision.
A consideration of the balance of the judgment confirms that his Honour did not rely on this matter in making any subsequent finding of fact or in making any discretionary decision.
The addition of the more minor matter of some confusion in the Magistrate’s reference to the evidence of Mr Robinson and Mr Whelan makes no appreciable difference to the situation. As noted above, his Honour’s comment was factually not incorrect and there was no prejudice to the appellant.
I find that the respondents have here established that the combination of the two identified blemishes could have had no effect upon the result of the case and the same result would have been achieved irrespective of those errors.
Exercising the discretion de novo
If the above errors do require me to exercise the discretion afresh, then on the basis that it is assumed that neither the appellant nor her husband had prior notice of the encroachment and that the confusion as between the evidence of Mr Robinson and Mr Whelan is rectified, I hereby exercise the discretion afresh and do so in the same fashion as the Magistrate.
Orders
The appeal is dismissed.
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