Kitson v Lim & Liu - [2024] SADC 134

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
KITSON v LIM & LIU
[2024] SADC 134
Judgment of his Honour Chief Judge Evans
18 October 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Minor Civil Review
Application for review is dismissed. Orders of judicial registrar affirmed subject to varying the orders of the judicial registrar by including a new order, 1A.
Magistrates Act 1983 (SA); Fences Act 1975 (SA), referred to.
Fennell v Wright [2006] SADC 88; Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; Harradine v District Court of South Australia (2012) 280 LSJS 572, considered.

KITSON v LIM & LIU
[2024] SADC 134
[CIV-23-008275]
Introduction

In 2017, Michelle Lim and Nengye Liu (‘the respondents’) purchased a property at 26 Grenfell Street, Kent Town, South Australia.
Janine Kitson (‘the applicant’) owned the adjoining property at 1A Dew Street, Kent Town.
The two properties are part of a community plan.
Leaving aside the common property, which is designated ‘(C1)’ on the primary plan on the title documents, the relevant community plan, ‘CP20008’ comprised two lots made up of three pieces of land, (separately numbered on the plan). The pieces numbered 1 and 3 made up one lot, which was owned by the respondents. The piece numbered 2 was itself a lot, ‘Lot 2’, which was owned by the applicant.
For ease of reference and to be consistent with the way the parties and the judicial registrar referred to the land, although the respondents only owned the one lot, which comprised pieces 1 and 3, I will refer to piece 1 as ‘Lot 1’ and piece 3 as ‘Lot 3’.
Lot 1, comprising a residential dwelling, fronts onto Grenfell Street. Lot 2, comprising a residential dwelling and a carport, fronts onto Dew Street. Lot 3, comprising a carport, adjoins the carport of Lot 2, backs on to a part of the southern wall of the residential building on Lot 2 and fronts onto Dew Street.
Common property running down the eastern side[1] of Lot 1 and part of Lot 2 enables access from the Lot 1 residence to its carport in Dew Street, being Lot 3.
[1] Rather than referring to the exact compass directions, I will refer to north, south, east and west rather than, for example, north-west and south-east.
The northern edge of the Lot 3 carport is the southern masonry wall (‘the masonry wall’) of the Lot 2 residence.
The western boundary of Lot 3 adjoins that part of the eastern boundary of Lot 2 which is the Lot 2 carport.
The carports are accessed from Dew Street and run across Lots 2 and 3 but are set back approximately 1.2 metres from the southern boundary of Lots 2 and 3.
There is no dispute that the roof of the carport is supported in part by two posts which, in proceedings, were sometimes referred to as ‘post A’ and ‘post B’. I will refer to them in that way.[2]
[2] See ‘JK-1C’ Henning & Co Pty Ltd plan dated 27 May 2022. The western boundary of Lot 3 where it adjoins Lot 2 runs from the ‘spike on boundary’ to ‘face of wall on boundary’ and shows two posts, both with the notation ‘face of post on boundary’. The post closest to Dew Street is ‘post A’ and the post closest to the masonry wall is ‘post B’. The plan is to scale, and the approximate distances referred to in paragraphs [14] and [15] are calculated by reference to that scale, but are not precise; the exact distances can be obtained from the plan.
Post A is closest to Dew Street and Post B is closest to the masonry wall.
There is no dispute that the eastern face of both posts A and B are right on the boundary between Lot 2 and Lot 3. The western boundary of Lot 3 is a straight line along the eastern face of posts A and B and continues until it hits, at right angles, the face of the masonry wall of Lot 2.
Post A is located approximately 5.2 metres in from the northern boundary of Lots 2 and 3, but, apart from the metal base, the eastern edge of which is approximately 30 mm within the boundary of Lot 3, the post is entirely within the boundary of Lot 2.
Post B is located approximately 1.7 metres to the north of post A and apart from approximately 30 mm of the metal base, is also entirely within the boundary of Lot 2. Post B is approximately 3.3 metres from the face of the masonry wall of the Lot 2 residence.
The respondents commenced a minor civil action in the Magistrates court.
The main dispute between the applicant and the respondents arises out of whether a previous structure that was erected between post A and post B and extended from post B to the face of the masonry wall was a dividing fence at the time that it was removed by the applicant and whether a new proposed dividing fence could be fixed to posts A and B.[3]
[3] At the time of the minor civil action before the judicial registrar, the new structure was a proposed structure. Following the orders of the judicial registrar, the structure has now been erected.
The applicant says that the old structure was not a fence, and in particular, it was not a dividing fence, and therefore the Fences Act 1975 (Fences Act) did not apply and the judicial registrar did not have jurisdiction to hear that part of the dispute.
In the Magistrates court the now respondents were primarily seeking relief pursuant to the Fences Act and relief from the applicant’s ‘continuous and repeated acts of trespass, in particular, illegal parking’.[4] The respondents sought an order in relation to the installation of a new dividing fence and relief for the costs of replacing what they described as a dividing fence which had been ‘unilaterally removed’[5] by the applicant.
[4] T10.15-16.
[5] T10.7.
The minor civil action was heard by a judicial registrar.
Magistrates Court Jurisdiction – Minor Civil Action
A minor civil action is defined in the Magistrates Court Act1991 (Magistrates Court Act) relevantly to mean:
Section 3
(2)     … an action founded on‑
(a)     a small claim; or
(b)     a claim for relief in relation to a neighbourhood dispute; or
(c)     a minor statutory proceeding.
A small claim is defined to mean:
Section 3
(1)     a monetary claim for $12,000 or less.
A neighbourhood dispute is defined to mean:
Section 3
(1)     a dispute between neighbours, or the occupiers of properties in close proximity, based on allegations of trespass or nuisance.
A minor statutory proceeding is, relevant to these proceedings, defined to mean:
Section 3
(1)     (a)     an application under the Fences Act 1975.
The Fences Act 1975 has the following relevant definitions in s 4:
4—Interpretation
(1)     In this Act, unless the contrary intention appears—
adjoining owners means the owners of contiguous land;
dividing fence means a fence dividing contiguous land of adjoining owners;
fencing work means the erection of a new dividing fence, or replacement, repair or maintenance work in relation to an existing dividing fence;
owner—
(a)      … means the proprietor at law or in equity of—
(i)    an estate of fee simple in the land; or …
proponent and adjoining owner mean, respectively—
(a) the owner of land who proposes to erect a fence dividing his land from contiguous land, or to perform replacement, repair, or maintenance work in relation to such a fence; and
(b)     the owner of that contiguous land;
(2)     For the purposes of this Act land is contiguous with other land if—
(a)     there is a common boundary between that land and the other land; or
(b)that land is separated from the other land by a right of way of no more than one metre in width
The Fences Act 1975 also relevantly provides in s 12 and s 16:
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
…
(f)determine the time at which fencing work is to be performed and the manner of its performance; 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;
16—Damage to or destruction of dividing fence
(2)     Where a dividing fence is damaged or destroyed as a result of a wrongful act or default on the part of any person, an adjoining owner who has properly incurred any cost or expense in repairing or restoring the fence (whether in pursuance of this Act or otherwise) may recover from that person, as a debt, the cost or expense so incurred.
The Fences Act contemplates that while a dividing fence must be dividing contiguous land of adjoining owners, it does not necessarily need to be right on the boundary of the contiguous land; see eg Fences Act 1975 s 5(2)(e), s 12(2)(a), (h), s 17.
Orders of Judicial Registrar
Following the trial of the action, the judicial registrar found in favour of the respondents and made the following orders:[6]
1.The applicants are permitted to engage a contractor to install a Colorbond post and rail fence, in the same colour and sheet style as the existing fence on the eastern boundary of Lot 3. The fence is to be situated on the boundary of Lots 2 and 3, or if the applicants prefer, within Lot 3. The fence can extend from Post A to the Masonry Wall (as defined in the judgment delivered with these orders). The posts and rails are to be situated on the respondent’s side of the fence. The applicants are to engage a fencing contractor as soon as practicable and are to instruct the contractor to complete the fencing work as soon as practicable.
2. If the cost of the works described in order 1 do not exceed $1,500, the respondent is to pay that cost to the applicants within seven days of completion of the works or the applicants providing a copy of the contractor’s invoice to the respondent, CIV-22-005323 05 July 2023 27 Form128 CIV-22-005323 2 of 2 whichever is the latter. If the cost of the works referred to in order 1 exceeds $1,500, the applicants have permission to apply to the Court to seek an order increasing the respondent’s liability.
3. The respondent is, until further order, restrained from entering Lot 3 without first obtaining the applicants’ permission or by following her obligations pursuant to the Planning, Development and Infrastructure Act 2016 (SA) and the Planning, Development and Infrastructure General Regulations 2017 (SA).
4. The respondent is to pay the applicants $3,463 in respect of the ancillary costs.
5. The respondent is to pay the applicants’ costs of this action fixed at $442.
[6] The reference to ‘applicants’ in the orders of the judicial registrar is a reference to the respondents in this review and a reference to the respondent in the judicial registrar’s orders is a reference to the applicant in this review.
The judicial registrar effectively:
a)permitted the respondents to engage a contractor to install a Colorbond post and rail fence on the boundary of Lots 2 and 3 from post A to the masonry wall and to recover from the applicant the cost of the fencing work up to $1,500 with liberty to apply to the court to increase that amount if the actual cost exceeded $1,500;
b)restrained the applicant from entering Lot 3 without the respondents’ permission;
c)required the applicant to pay the respondents $3,463 for ancillary costs; and
d) required the applicant to pay the respondents’ costs of action of $442.
Application for review
The applicant was dissatisfied with the judgment of the judicial registrar and applied to this court to review the matter..
The review is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA).
I do not set out in full the review grounds which the applicant sets out in her Notice of Review, however, they can effectively be grouped as follows:
1.The structure removed by the applicant was not a dividing fence within the meaning of the Fences Act and the judicial registrar had no jurisdiction to hear the matter. Associated with that, the judicial registrar failed to:
1.1    recognise the importance of an earlier authority of Judge Tilmouth;
1.2    appreciate the carport covering Lot 2 and Lot 3, and the Lot 2 masonry wall were the subject of council approval pursuant to the Development Act and the carport came within the definition of a building under the Development Act; and
1.3    take into account orders made on 4 October 2016 by Magistrate Fahey in relation to painting the fence such that there are now conflicting orders.
2.The judicial registrar erred in awarding damages in relation to restoring the carport to the desired appearance as a result of alterations made by the applicant.
3.The judicial registrar failed to place any weight, or give any credit for costs incurred in costly urgent restoration works which the applicant had carried out to Lot 3.
4.The applicant claims that she was denied natural justice in relation to procedural fairness:
4.1    by the judicial registrar’s use of Google street view;
4.2    by the judicial registrar refusing to reconvene the proceedings to have the building expert attend to give evidence.
Nature and Conduct of Review
The review is conducted pursuant to s 38(6)-s 38(9) of the Magistrates Court Act. Relevantly, s 38(7) provides:
(7)     The following provisions apply to such a review by the District Court:
…
(b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
…
(e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
As is apparent from s 38(6) the District Court is conducting a review of the matter and not a review of the judgment.
To understand the nature of the review, it is necessary to have regard to the provisions set out in s 38(1) of the Magistrates Court Act which are applicable to the trial of a minor civil action, namely:
(1)     …
(a)     the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)     the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In conducting a review, the conduct of the minor civil action must be considered in the context that the role of the magistrate in such an action is that of an enquirer rather than conducting an adversarial contest between the parties.[7]
[7] Harradine v District Court of South Australia (2012) 280 LSJS 572, per Blue J.
I also refer to the discussion of Peek J as to the meaning of the phrase ‘equity, good conscience and the substantial merits of the case’ in Gillott v District Court of South Australia.[8]
[8] [2019] SASC 132 at [40]-[46].
Pursuant to s 38(8) of the Magistrates Court Act, the decision of this court on review is final and is not subject to appeal. Relevantly, pursuant to s 38(7)(d), on this review this court may affirm the judgment or rescind the judgment and substitute a judgment that the court considers appropriate.
In Harradine v District Court of South Australia, Blue J set out the following principles that apply to a review by a District Court Judge of a minor civil action:
1. The review is not in the nature of an appeal stricto sensu.
2.The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6.To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.[9]
[9] (2012) 280 LSJS 572; [2012] SASC 96 at [53]. See also Wilczynski & Anor v District Court of South Australia & Ors [2016] SASC 51; and on appeal [2017] SASCFC 102.
At Review
Over opposition from the respondents, I permitted the applicant to be represented by a legal practitioner, initially at the hearing of an interlocutory application, and then at the hearing of the review.
At the hearing of the review, the applicant tendered a copy of the community corporation by-laws[10] and a book of photographs containing 19 tabs.[11] The applicant also called Mr Kent Hopkins to give evidence. Mr Hopkins was the author of the building expert’s appraisal report dated 26 September 2022 which was before the judicial registrar at the hearing of the minor civil action.[12]
[10] Exhibit MCR-A1.
[11] Exhibit MCR-A2.
[12] A copy of which appears at pages 36-39 of the applicant’s tender book (Exhibit A1 in the minor civil action); see also FDN 18 in the Magistrates court.
During his evidence at the review, Mr Hopkins produced two photographs of the property which were tendered by Mr O’Dea.[13]
[13] Exhibit MCR-A3.

Apart from calling Mr Hopkins, neither party sought to call any further witness or to give further evidence themselves and relied on the evidence and material before the judicial registrar in the Magistrates court.
On review, Mr O’Dea submitted that a review of the material would show that the ‘fence’ was not a dividing fence in part as it was constructed wholly inside the applicant’s land, and it was a party wall. Further, it was not a dividing fence because it was submitted posts A and B were a party wall, it was for that reason in part that Mr O’Dea wanted to call Mr Hopkins to confirm that posts A and B were a party or boundary wall and that the fence structure had been affixed to a party or boundary wall and that any attachment to posts A and B did not come within the Fences Act, but came within the Planning, Development and Infrastructure Act 2016. He further submitted that this was consistent with the decision of Judge Tilmouth in Fennell v Wright.[14] He submitted that the structural nature of the posts made them a party wall and therefore using them to attach a structure did not engage the Fences Act.
[14] [2006] SADC 88.
Mr Hopkins
Mr Hopkins, a self‑employed building consultant, was engaged at the trial of the action by the Magistrates court to attend at site and to prepare a report.[15] The parties were provided with his report and a copy was before the judicial registrar.[16]
[15] A copy of which appears at pages 36-39 of the applicant’s tender book (Exhibit A1 in the minor civil action); see also FDN 18 in the Magistrates court.
[16] Exhibit A1, pages 36-39.
During the course of a further hearing before the judicial registrar,[17] the applicant indicated she wanted to subpoena Mr Hopkins to attend and give oral evidence in relation to his report, including the structure being a party or boundary wall.
[17] This was called on after the Google street view image had been provided to the parties.
To the extent there may have been any unfairness to the applicant in not having the opportunity to re‑open her case and to call Mr Hopkins to give oral evidence for the purpose of questioning him as to his report, I am satisfied that any unfairness that might have been claimed was remedied by the applicant calling Mr Hopkins to give evidence on the review and by her legal representative examining him in relation to his report and the matter, including the status of the previous fence and posts A and B.
Mr Hopkins gave evidence on the review and on being shown the plan of Hennig and Co Pty Ltd, the licensed surveyors,[18] he expressed the view that the eastern face of the two carport posts (posts A and B) were on the boundary[19] that is one edge of the 90 x 90 posts form the boundary.
[18] Attached to the written submissions of the applicant in the Magistrates court as JK‑1C.
[19] T39.4.
Mr Hopkins also gave evidence that the brackets at the foot of carport posts A and B extend over the boundary into Lot 3 by about 30mm.[20]
[20] T44.12.
Mr Hopkins said that generally parties will agree whether the boundary is in the middle of the fence and which side the posts are on and whether the fence is off the boundary.[21]
[21] T45.27.
He said that there is no reason why the fence could not be attached to posts A and B and notwithstanding his evidence as to posts A and B, he gave evidence that the old fence, which was fixed between those posts could be a dividing fence even if the posts were structural and even if the fence itself was not on the boundary line.[22]
[22] T50-51; and see also T46.33-35.
The fact that this particular structure[23] was attached to the posts and the wall, each of which are structural and supports for the carport or residence, does not in this case change the nature of the structure from a fence to a party wall or a boundary wall.
[23] For a photograph of the old structure see Exhibit A1, page 7, figure 3 (from Magistrates court), and Exhibit MCR A-3 the top photograph.
Fennel v Wright
The applicant claimed on review that the judicial registrar had failed to recognise the definition of a fence in Fennell v Wright.[24]
[24] [2006] SADC 88, Judge Tilmouth, 2 August 2006.
In Fennell v Wright, one of the issues Judge Tilmouth considered was the jurisdiction of the Magistrates court to resolve disputes arising under the Fences Act and the meaning of the word fence and the definitions of dividing fence and fencing work. Having found that certain structures erected on the boundary in that matter were fences, he went on to consider whether the wall of the garage itself was a fence. He found, for the purpose of that matter, that the wall of the garage itself was not a fence. He said:[25]
The garage wall itself forms an integral part of the structure of the garage – in no sense could it be described as a fence. The plans submitted to Council related to a ‘proposed residence’, and they depicted the garage as part of the entire structure, containing a ‘limestone parapet wall to the boundary’.
[25] Fennell v Wright [34], [35].
His Honour then considered the garage wall fell within the definition of a building under the Act and that any difficulty with that wall was to be ventilated in the planning and development process.
The facts in Fennell v Wright are distinguishable.
Whilst it might be accepted that the two carport posts of themselves may not be a fence and removal of those posts may require planning approval, that does not necessarily mean that a fence‑like structure dividing the two Lots, which structure was attached to the two posts, was itself not a dividing fence.
On reviewing the evidence, including the photographs and the plans that were tendered, I am satisfied that the structure that was removed by the applicant was a dividing fence and the structure that was sought to be erected by the respondents was also a dividing fence.
I do not consider that the decision of Judge Tilmouth determines otherwise.
The old structure did not extend the entire length of the boundary between Lots 2 and 3 in the carport. It ran from the masonry wall to post A. As was observed by the judicial registrar, it was not surprising that it did not extend beyond post A to the end of the boundary on Dew Street, as that would have restricted the vision of drivers exiting the properties into Dew Street. On review, the expert confirmed by reference to the photo books that the new structure did not extend to the edge of the properties either.
It was suggested by the applicant that the fact the structure did not extend the entire length of that boundary was consistent with the structure not being a fence. I agree with the judicial registrar’s determination that that factor does not stop a structure from being a fence within the meaning of the Fences Act.
I am satisfied that the structure that was removed was a dividing fence within the meaning of the Fences Act. I am also satisfied that nothing in the Development Act took away from the section of the structure from the masonry wall to post B, or the section of the structure between post A and post B, from being a fence, and in particular a dividing fence.
Orders – Magistrate Fahey
The structure which was affixed to and supported by post A and post B and extended to the masonry wall had been the subject of an earlier dispute in 2016 between the applicant and the then owner of Lots 1 and 3, Ms Honner. That dispute was resolved in principle before Magistrate Fahey on 4 October 2016.[26]
[26] Honner v Douglas-Kitson File No ELCCI-16-2813.
Two of the terms of the resolution that Magistrate Fahey set out were that:
3.The respondent [Kitson] may within 28 days paint both sides of the fence adjoining Lots 2 and 3 on the plan in a colour consistent with the colour of the building.
4.The respondent [Kitson] shall remove the lattice presently situated above the dividing fence.
The lattice had been removed from above ‘the dividing fence’ prior to the respondents either viewing or purchasing Lot 3.[27]
[27] T20.11.
At the time of the orders of Magistrate Fahey the applicant and her then next door neighbour both treated the structure dividing Lot 2 and Lot 3 under the carport as a dividing fence. Further, the orders reflect an ‘in principle’ resolution of the dispute by the parties and part of that resolution was that the parties agree that the applicant ‘may’ within 28 days paint both sides of the fence.
There is no inconsistency of the type submitted by the applicant between the order of Magistrate Fahey on 4 October 2016 and the orders of the judicial registrar.
I do not accept that ground of review is made out, in the sense that the terms of the resolution before Magistrate Fahey, and the subject orders, do not support a finding either that the structure that was removed was not a dividing fence, nor that the structure that has now been built is not a dividing fence.
The respondents had served a notice of intention to erect a fence under the Fences Act[28] prior to commencing the minor civil action which was heard by the judicial registrar.
[28] Exhibit A1, pages 34-35.
In the applicant’s Form 3 Cross-Notice, objecting to the fencing notice, the applicant referred to the old fence as ‘the original dividing fence’.[29]
[29] Attached to originating application (CIV-22-005323).
I am satisfied that the old structure that had divided Lot 2 and Lot 3 under the carport (leaving aside posts A and B that support the carport) was a dividing fence and the removal of that dividing fence was fencing work undertaken without approval of the previous owner, Ms Honner, or of the respondents.
Date of removal of old fence
At the hearing before the judicial registrar, the date at which the old fence was removed was in issue.
The date of removal of the sections of the fence is important. If the sections of the fence were removed prior to the execution of the contract of sale and purchase of Lots 1 and 3, then the respondents were not the owners of the contiguous land.
The evidence supports a finding that both the first section (one panel) and the second section (two panels) of the fence were removed at a time which cannot be precisely identified, but was at least after the respondents had contracted to purchase Lots 1 and 3 from Ms Honner.
The applicant did not ask for the permission of the previous owner or the permission of the respondents before taking down the dividing fence.
The applicant did not have a clear recollection as to precisely when the old fence was removed. She acknowledged that she removed it in at least two sections and that she did not commence removing it until after she had noticed Lot 3 was up for sale. Initially she suggested that the whole of the fence was gone by September 2017.[30]
[30] T43.16.
The applicant said ‘I removed the first panel closest to the street with a friend. The panels closest to the walls I also removed with a friend, but I just can’t remember the exact date that was done. They were done at different times’.[31]
[31] T42.10; T74-76.
The applicant had seen a for sale sign go up and she gave evidence that she thought that was her opportunity to take it down.[32]
[32] T42.17; T78.22-25; T79.27. The applicant took the first panel down after the for sale sign had gone up.
An email from Ms Honner, the previous owner of the property, in part says:
At the time of the property sale in August 2017, the dividing fence was intact – however, I noticed Janine [Kitson] had removed the panel closest to the road without consultation during our settlement period.[33]
[33] Exhibit A1, page 7, Magistrates court; T22.
The respondents settled on the property on 27 October 2017[34] and the respondents, although they could not be precise in relation to dates, gave evidence that the first panel of the fence was removed during the settlement period, that being between the time the contract was fully executed and settlement, and that the second section of the fence was removed in 2019.[35]
[34] T22.30.
[35] T12, l1; T23, l5-14.
Google Search
One of the grounds of review relates to an alleged denial of natural justice by the judicial registrar using Google street view in the way he set out in paragraphs 25‑27 of his judgment.
The judicial registrar, after the initial hearing of the minor civil action, and whilst preparing his judgment, used Google street view. He observed an image dated February 2018 which showed the first section of the fence having been removed, but the second section of the old fence still being there. The judicial registrar had the court forward a copy of the Google image to the parties and called the matter back on for further submissions in relation to the date of the removal of the second section of the fence and the Google image.
On review, the applicant complained about the judicial registrar conducting a Google search, and then calling the matter back on and questioning the applicant as to the date she removed the second section of the fence by reference to the Google image dated February 2018.
In any contested court hearing, it is important that the parties are aware of all of the evidentiary material that the trier of fact may have had regard to in that matter. Whilst a minor civil action is conducted in accordance with the specific legislative regime, as set out above, it does not remove the need for the hearing to be open and transparent. It is one thing if, at the hearing of the matter, the magistrate or judicial registrar accesses a website or the internet in real time while discussing what is being viewed with the parties. For example, it appears from the transcript in this matter at the hearing of the minor civil action the judicial registrar accessed and viewed realestate.com and scrolled through a limited part of that site at the same time as the parties had access to that view.[36]
[36] T18.30.
However, undertaking a specific web search after the close of the hearing and whilst preparing judgment without first informing the parties and giving them an opportunity to either object, or to at least be fully informed as to the websites that are being accessed and having an opportunity to comment or make submissions in relation to them, is problematic.
It appears that the judicial registrar only had regard to the Google street view search and the image that the court provided to the parties and was the subject of further submissions and, having done so, informed the parties and called the matter back on for a further hearing. It was during that further hearing, and in light of the Google street view image and the answers of the applicant to questions asked by the judicial registrar, that the judicial registrar concluded the applicant ultimately made a concession that the second section of the fence was still in place in February 2018.
I do not necessarily accept that the applicant made an unconditional concession that the date on the Google street view meant that the second section of the fence was still in place as at 2018. Properly understood, the applicant indicated that on the assumption that the image on the Google street view was taken on that date, then she would accept that the second section of that structure was still in place as at 2018. However, she asked if it was known whether that date in fact was the date that the image was taken or whether that was the date the image was uploaded to the internet.
Having reviewed the matter, including the conduct of the matter, and having regard to the submissions of the applicant, I am satisfied that there was no denial of natural justice in the conduct of the minor civil action by the judicial registrar having conducted the Google street view search. The judicial registrar, having accessed the Google street view, then informed the parties of his search, provided them with the image obtained and called the matter back on for further submissions.
However, as I am not satisfied that the applicant made the unconditional concession as found by the judicial registrar, I have put aside the evidence of the Google street view and the suggested concession made by the applicant. I have reviewed all of the material and considered the additional matters raised on review and in doing so I have not relied on the Google street view, or any concessions by the applicant that the old structure was still in place as at 2018.
In any event, there was no dispute that the first section of the old fence was taken down on a date earlier than the second section. The Google street view showed the first section having already been removed. Whatever date the second section was removed, it must have been after the date of the removal of the first section.
I find that:
1.Without the consent of Ms Honner or the respondents, the applicant removed both sections (being three panels) of the dividing fence.
2.The applicant took the opportunity of removing those sections at some time after she had seen a for sale sign on the adjoining properties.
3.The first of those sections was removed by the applicant during the ‘settlement period’ after the contract for sale and purchase of Lots 1 and 3 had been executed.
4.The second of those sections of the fence (being two panels) were removed at a later date.
5.Both of the sections of the fence, being all three panels, were removed by the applicant at a time that the respondents were the proprietors at law or in equity of an estate of fee simple in the land, and they came within the definition of ‘owner’ in s 4(1) of the Fences Act.
6.The respondents, as owners of Lot 3, were the owners of contiguous land to Lot 2 and came within the definition of adjoining owners under s 4(1) of the Fences Act, 1975.
7.The sections of fence which had been erected between carport posts A and B, and between carport post B and the masonry wall of Lot 2 were a fence dividing contiguous land of adjoining owners and came within the definition of dividing fence in s 4(1) of the Fences Act.
8.The fact that the sections of the fence were attached to the carport posts and were wholly within Lot 2 does not, on all of the evidence, take those sections of the fence outside of the definition of a dividing fence within the Fences Act.
9.The removal of the sections amounted to the wrongful destruction of a dividing fence within the meaning of s 16(2) of the Fences Act.
New Dividing Fence
The applicant gave evidence before the judicial registrar that she did not know the history of the old ‘dividing fence’ that she removed. It was there when she purchased the property, at that time there were tenants in the property and the owners of the property were overseas. The applicant said that she had no way of finding out the history of the structure as the previous owners of Lot 2 may not have any prior knowledge.[37]
[37] T84.
The new dividing fence that was to be erected, was not to be attached to the masonry wall of Lot 2. A stand‑alone post, not affixed to the masonry wall was to be erected just next to the masonry wall.[38].
[38] T33.23-33 and 35.1.
The intention in relation to the new fence was to install it to the east of the two carport posts, noting that the posts were entirely in Lot 2 except for the metal footpads which went partly into Lot 3.[39]
[39] T63.
The fence was to be on the boundary line. The base straddles the boundary line.[40]
[40] T65.1.
By the time of the review hearing, the new fence had been erected. Photographs of the new fence were contained in the folder of photographs.[41]
[41] Exhibit MCR A-2.
The evidence of Mr Hopkins and the photographs supported the view that the new fence which was attached to carport posts A and B was continued in a straight line to the edge of the masonry wall of Lot 2. A post was erected immediately adjacent to the masonry wall but not attached to it. The post, together with a further post between post B and the masonry wall, were erected in such a way that the railings and the fence could be attached to the posts and enable the railings and the fence to form a straight line from carport posts A to B to the new posts. The new post adjacent to the masonry wall was erected in such a way that it was wholly within the boundary of Lot 2 apart from a bracket support bolted into the cement of the driveway within the boundary of Lot 3, and the other new post was entirely within the boundary of Lot 2.

The fence itself (leaving aside the new posts) was erected entirely within the boundary of Lot 3 in the sense that the fence was in a straight line and it was attached to the eastern edge of carport posts A and B, the face of which was right on the boundary between Lots 2 and 3. The western edge of the railings and the attachment to the carport posts could be said to be right on the boundary and the balance of the railings and fence were entirely within the boundary of Lot 3.
Notwithstanding the new posts, including the post adjacent to the masonry wall, were erected inside the boundary of Lot 2, I accept Mr Hopkins’s evidence on looking at the photographs of the new fence and the new posts that:
T47.24 – T49.8:
Q.So, that's that fence, which is dividing lot 2 and lot 3. The whole of the fence appears to be a straight line on the eastern face of the white posts, in effect, or a bit further out if we look back at the - maybe not, it's a bit hard to tell. But basically it runs past in front of the second white post, if you look at the bottom of p.2, so it's clearly - the fence itself is clearly - if one then goes back to the surveyor's plan that you've looked at, the fence itself is pretty much right on the boundary.
…
A.The whole of the fence is actually on the eastern side of the major post except for that black post.
Q.    Yes.
A.    I think that's probably in lot 2 a little bit.
Q.Yes, all right. So the whole of the fence, it's - yes, I see, and so to keep, maintain the straightness it has followed the control - it's lined up with the white posts.
A.    Yes, yes.
Q.    Otherwise there would be a dog leg or a bend or something.
A.    That's correct.
XN
Q.Couldn't the posts be placed on the boundary. I think I've already asked you whether it could be either side, but it could be placed on the survey mark line.
A.Well, it could be. It depends - because the Hennig survey indicates that the eastern face of the white posts is the boundary, I'm surmising that the fencing contractor has affixed the horizontal rails of the fence to that face of the white posts and they have continued this line through with the rail being the actual boundary, but then they have put these metal - these black posts to suit.
HIS HONOUR
Q.Because there is no white posts back there. If there was a white post there, it would be exactly the same.
A.    Yep.
Q.    And it would just be attached.
A.    Yes.
Q.    And the posts of a dividing fence have to be on one side or the other.
A.    Correct.
Q.And not all of any fence is going to be completely on one property, otherwise there would be - it would be impossible.
A.    Correct.
Q.    So as far as doing a dividing fence there, that meets the criteria.
A.    It appears to be correct.
The judicial registrar acted on the basis that there was no need for the new fence to be, and it would not be, attached to the masonry wall.[42]
[42] T26.1.
Given the location of the old dividing fence and the fact that there is no evidence available as to the circumstances in which it was erected, it is a reasonable inference that it was erected between the carport posts with the agreement of the then owner of Lot 2.
Even if I am wrong in drawing that inference, the carport posts were structural and they were required to be there. The easiest way to erect a dividing fence without taking up more room from either of the two carports was for the fence to be connected to each of the posts and then continued in a straight line to the masonry wall. That is what appears to have happened.
Having removed the dividing fence without the permission or consent of the owners of Lot 3, it is reasonable for any replacement fence to also be attached to the carport posts A and B. As the eastern face of each post is the actual boundary, and if the new fence is not to be attached to the masonry wall, it is reasonable that a post or posts necessary to support the new dividing fence between post B and the masonry wall be erected to enable the railings and the fence to continue in a straight line from post A and post B through to the masonry wall. In those circumstances, it would be necessary for the new post or posts to be just within the boundary of Lot 2 to enable the railings and the fence to be erected in a straight line.
I am satisfied that the powers of the Court under s 12 of the Fences Act 1975 are such that an order for the fence to be erected to enable it to be in a straight line with the new posts being erected where they are shown to be erected in the book of photographs[43] would be an appropriate order and I consider that would be a just way to determine this aspect of the matter. To the extent the order made by the judicial registrar may not achieve this or may not be clear, I consider it would be just and appropriate to vary the orders to reflect that by adding a new order in the following terms:
‘Notwithstanding order 1, any posts installed between post B and the masonry wall may be installed within the boundary of Lot 2 to enable the railings and the fence to run in a straight line from post A all the way to the masonry wall.’
[43] Exhibit MCR-A2.
Ancillary Costs - $3,463
I find the sum of $3,463 ordered to be paid in respect of the ancillary costs was fair, reasonable and appropriate. I accept that a survey was reasonably required for the purposes of the fencing work and that the evidence supports the reasonableness of the respondents engaging a surveyor and the incurring of those costs. In the circumstances of this matter, I am satisfied that the cost of planning approval was reasonably required to facilitate the performance of the fencing work.
I am also satisfied that the finding of the judicial registrar in relation to the unauthorised alterations were in accordance with the evidence before him.
The applicant asserts as a ground of review that in making the monetary orders, the judicial registrar failed to take into account that the applicant had spent $1,318.04 for restoration work for the benefit of what she describes as the common property and Lot 3.
The respondents say that they expressly objected to the applicant doing that work or painting Lot 3 but the applicant went ahead anyway.[44]
[44] T12.
The respondents said that the work was being performed on Lot 3, it was not common property, and they had indicated to the applicant that it was their property and they did not want the work done.
I am satisfied that the expenses incurred by the applicant were at her own instigation and the work performed on Lot 3 was not at the request of, or with the consent of, the respondents and that the judicial registrar was correct in not off‑setting that cost and I will not offset that cost either.[45]
[45] See also T30-31 and Exhibit A1, pages 10-12.
Conclusion
The judicial registrar had jurisdiction to deal with the fencing dispute and to determine whether the applicant should pay for the costs of erecting the new dividing fence. In making that determination, it was open for the judicial registrar to find that the structure that had been removed by the applicant was a dividing fence and that, in all of the circumstances, it was reasonable and appropriate for the applicant to pay the costs of work as ordered by the judicial registrar.
For the reasons I have expressed and having reviewed the matter and all of the matters raised by the applicant, and subject to making an additional order as set out above, I agree with the orders that were made by the judicial registrar.
The application for review is dismissed, and subject to varying the orders of the judicial registrar by including new order 1A, I affirm the orders of the judicial registrar.[46]
[46] Orders dated 5 July 2023, FDN 27 Magistrates Court Minor Civil Action CIV-22-005323 - Lim & Liu v Kitson.
New Order 1A
1ANotwithstanding order 1 of the judicial registrar dated 5 July 2023, any posts installed between post B and the masonry wall may be installed within the boundary of Lot 2 to enable the railings and the fence to run in a straight line from post A all the way to the masonry wall.