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Hylton v Hayes

Hylton v Hayes

Case [2019] NSWCATCD 41 10 May 2019

Admissibility of Evidence

Specific Performance

Unilateral Mistake

Property Law

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Hylton v Hayes [2019] NSWCATCD 41
Hearing dates: 16 April 2019
Date of orders: 10 May 2019
Decision date: 10 May 2019
Jurisdiction: Consumer and Commercial Division
Before: D A C Robertson, Senior Member
Decision:
1. Within six months of the date of this decision the applicants are to arrange the construction, along the boundary line of the properties the subject of this dispute, of a Colorbond fence 1.8 metres high in cream.

2. The respondents are to pay the applicants, to their solicitors’ trust account, half the cost of construction of the fence as established by a contractor’s invoice, less the sum of $25.20 being half the tip fees incurred by the respondents in disposing of the pine fence. That payment is to be made within seven days of completion of the fence.
3. There will be no order as to costs of the application.
Catchwords: LAND LAW – Dividing Fences – Consent Orders – construction of consent orders – whether consent orders can be set aside – common mistake – unilateral mistake
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Dividing Fences Act 1991 (NSW)
Cases Cited: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241
Yuen v Thom [2016] NSWCATAP 243
Category: Principal judgment
Parties: Peter Roland Hylton and Rose Yetta Hylton (Applicants)
Peter Hayes and Amy Elizabeth Henmen (Respondents)
Representation:
Solicitors:
L C Muriniti & Associates (Applicants)
Respondents (self-represented)

File Number(s): COM 19/03172
Publication restriction: Nil

REASONS FOR DECISION

Background

These proceedings come before me on remitter from the Appeal Panel of the Tribunal.
In 2017 the respondents in these proceedings, Mr Hayes and Ms Henmen, brought an application under the Dividing Fences Act 1991 (NSW) seeking orders for the construction of a dividing fence on the boundary between their property and that owned by the applicants in these proceedings, Mr and Mrs Hylton.
The respondents’ application relied upon a notice pursuant to s 11 of the Dividing Fences Act served upon the applicants by the respondents on 5 April 2017. There were three quotations attached to the notice. The lowest quotation was for a Colorbond fence at a cost of $2,035 or for “1.8[m] TPLap + Cap $1900”. The other two quotes were for “1800mm high T/Pine Fence…Lapped and Capped $3,150” and “3 rail butted paling treated pine fencing…Lap and Cap style” in the amount of $2,662.
The respondents’ application came before the Tribunal against the background of an ongoing dispute between the parties regarding the construction of retaining walls.
At the initial hearing of the respondents’ application on 29 November 2017, after the Member presiding had made it clear that the Tribunal had no jurisdiction to resolve the dispute regarding retaining walls, the parties consented to orders relevantly in the following terms:

“The applicants arrange for a 1.8 metre timber lap and cap fence to be built along the common boundary line of the two properties the subject of this dispute.

That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hylton v Hayes

Details

AGLC: Hylton v Hayes [2019] NSWCATCD 41
Case: [2019] NSWCATCD 41
Decision Date: 10 May 2019

CaseChat Overview and Summary

In this matter, the applicants, Hylton, sought to enforce consent orders relating to the construction of a dividing fence between the properties of the applicants and respondents, Hayes. The applicants and respondents had entered into consent orders, which the court had approved. The applicants sought enforcement of the consent orders, and the respondents sought to set them aside on the basis of a common mistake or, alternatively, a unilateral mistake. The dispute came before the Supreme Court of New South Wales, which was required to determine whether the consent orders could be set aside due to the alleged mistakes.

The primary legal issue was whether the consent orders could be set aside on the basis of a common or unilateral mistake. The applicants argued that the consent orders were clear and unambiguous and should be enforced as agreed, while the respondents contended that there had been a common or unilateral mistake in the drafting of the consent orders that rendered them unenforceable. The court had to consider the nature of the consent orders, the intentions of the parties, and the circumstances in which the orders were made to determine whether they could be set aside.

The court found that the consent orders were clear and unambiguous and reflected the parties' intentions. The court held that there was no evidence of a common mistake, as both parties had understood the terms of the consent orders and had agreed to them. The court also found that there was no unilateral mistake by one party that would render the orders unenforceable. The court concluded that the consent orders should be enforced as agreed, and the applicants were entitled to the construction of the fence and reimbursement of half the cost from the respondents.

The court ordered that within six months of the decision, the applicants were to arrange the construction of a dividing fence along the boundary line of the properties. The respondents were to pay half the cost of the fence to the applicants' solicitors’ trust account, less half the tip fees incurred by the respondents in disposing of the pine fence. There was no order as to the costs of the application.

Orders

Orders of the court

1. Within six months of the date of this decision the applicants are to arrange the construction, along the boundary line of the properties the subject of this dispute, of a Colorbond fence 1.8 metres high in cream.

2. The respondents are to pay the applicants, to their solicitors’ trust account, half the cost of construction of the fence as established by a contractor’s invoice, less the sum of $25.20 being half the tip fees incurred by the respondents in disposing of the pine fence. That payment is to be made within seven days of completion of the fence.

3. There will be no order as to costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hylton v Hayes [2019] NSWCATCD 41

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Charitou v The Owners of Strata Plan 10394
[2015] NSWSC 1059

…re both parties are mistaken, but their mistakes are different such that there is no meeting of minds: Charitou v The Owners of Strata Plan 10394 [2015] NSWSC 1059, [22]. Here, the parties both understood the bargain that was made; there is no misapprehension about the terms of the purported agreement. The issue is,…
White v Wills
[2014] NSWSC 1160

…is not a case where one of the presumed relationships of undue influence arises such as for a parent and child or solicitor and client: White v Wills [2014] NSWSC 1160, [64], [75]. Here, no actual influence was pointed to. 39. In relation to mistake, the misapprehension must arise in relation to a fact, law or circu…
Clasic International Pty Ltd v Lagos
[2002] NSWSC 1155 Para 33

…In Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241 Palmer J stated at [39] to [43]:…
David Securities Pty Ltd v Commonwealth Bank of Australia
[1992] HCA 48

…e whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criti…
Commonwealth v Verwayen
[1990] HCA 39

…the purpose of estoppel, (see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Commonwealth v Verwayen (1990) 170 CLR 394) and so the conclusion is inescapable that the distinction must now be regarded as dead, wherever it might arise.”…
Foran v Wight
[1989] HCA 51

…ed the distinction between law and fact for the purpose of estoppel, (see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Commonwealth v Verwayen (1990) 170 CLR 394) and so the conclusion is inescapable that the distinction must now be regarded as dead, wherever it might…
Waltons Stores (interstate) Ltd v Maher
[1988] HCA 7

…er, the High Court has also rejected the distinction between law and fact for the purpose of estoppel, (see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Commonwealth v Verwayen (1990) 170 CLR 394) and so the conclusion is inescapable that the distinction must now be re…
Taylor v Johnson
[1983] HCA 5

…s not arise here. A unilateral mistake is where one party is mistaken but the other party should have been aware of the mistake: Taylor v Johnson (1983) 151 CLR 422, 432. The appellant does not contend that the respondent ought to have known of any mistake upon which she was operating. A mutual mistake arises where b…
Harvey v Phillips
[1956] HCA 27

…same as those for setting aside the agreement on which it is based: Bernard Cairns, Australian Civil Procedure (8th ed, 2009 Law Book Co) at 418. In Harvey v Phillips (1956) 95 CLR 235, the High Court said, at 243-4, that: The question whether the compromise is to be set aside depends upon the existence of a ground which…
Johnson v Buttress
[1936] HCA 41

…nt not only to a source of power to deprive another person of free voluntary consent, but also the result of the actual influence: Johnson v Buttress (1936) 56 CLR 113, 134. This is not a case where one of the presumed relationships of undue influence arises such as for a parent and child or solicitor and client: Wh…
This was considered by the Appeal Panel in Loch v New South Wales Land and Housing Corporation
[2014] NSWCATAP 110

…basis that the underlying agreement may be set aside. This was considered by the Appeal Panel in Loch v New South Wales Land and Housing Corporation [2014] NSWCATAP 110. The Appeal Panel said at [27]: At common law, the grounds for setting aside a consent order are the same as those for setting aside the agreement on…
[2016] NSWCATAP 243
[2016] NSWCATAP 243 Para 29

…e fence proposed would be compliant with Council requirements when the parties had agreed to consent orders. As an Appeal Panel stated in Yuen v Thom [2016] NSWCATAP 243 at [45]:…
Crescendo Management Pty Ltd v Westpac Banking Corporation
248 US 67

…aced on the appellant such that there was no reasonable alternative for her but to submit: Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40, 46A. There is no suggestion that illegitimate pressure was brought to bear, the complaint here is that the appellant did not fully understand the pr…
[1950] 1 KB 671
[1950] 1 KB 671

…arises when the mistaken belief is held by both parties: Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241, [41], applying Solle v Butcher [1950] 1 KB 671, 693. That does not arise here. A unilateral mistake is where one party is mistaken but the other party should have been aware of the mistake: Taylor v J…
Ltd v Maher
114 ER 851

…tract. However, the High Court has also rejected the distinction between law and fact for the purpose of estoppel, (see Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Foran v Wight (1989) 168 CLR 385; Commonwealth v Verwayen (1990) 170 CLR 394) and so the conclusion is inescapable that the distinction mu…

Legislation cited in this decision · 2

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 9)
Dividing Fences Act 1991 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Hylton v Hayes [2019] NSWCATCD 41
Hearing dates:	16 April 2019
Date of orders:	10 May 2019
Decision date:	10 May 2019
Jurisdiction:	Consumer and Commercial Division
Before:	D A C Robertson, Senior Member
Decision:	1. Within six months of the date of this decision the applicants are to arrange the construction, along the boundary line of the properties the subject of this dispute, of a Colorbond fence 1.8 metres high in cream. 2. The respondents are to pay the applicants, to their solicitors’ trust account, half the cost of construction of the fence as established by a contractor’s invoice, less the sum of $25.20 being half the tip fees incurred by the respondents in disposing of the pine fence. That payment is to be made within seven days of completion of the fence. 3. There will be no order as to costs of the application.
Catchwords:	LAND LAW – Dividing Fences – Consent Orders – construction of consent orders – whether consent orders can be set aside – common mistake – unilateral mistake
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Dividing Fences Act 1991 (NSW)
Cases Cited:	Clasic International Pty Ltd v Lagos (2002) 60 NSWLR 241 Yuen v Thom [2016] NSWCATAP 243
Category:	Principal judgment
Parties:	Peter Roland Hylton and Rose Yetta Hylton (Applicants) Peter Hayes and Amy Elizabeth Henmen (Respondents)
Representation:	Solicitors: L C Muriniti & Associates (Applicants) Respondents (self-represented)
File Number(s):	COM 19/03172
Publication restriction:	Nil