Komorowski v Ong - [2019] WASCA 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KOMOROWSKI -v- ONG [2019] WASCA 201
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   21 NOVEMBER 2019
DELIVERED          :   13 DECEMBER 2019
FILE NO/S:   CACV 82 of 2019
BETWEEN:   LUDWIG KOMOROWSKI
First Appellant

LYNETTE ANNE KOMOROWSKI
Second Appellant

AND

SIOE SAN ONG
First Respondent

KIFI TJAHAJA
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STONE DCJ
File Number            :   APP 114 of 2018

Catchwords:

Appeal against Magistrates Court orders - Practice and procedure - Dividing fences - Whether there was any right of appeal to the District Court from a decision that there was no need to construct a new dividing fence

Legislation:

Dividing Fences Act 1961 (WA), s 9

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	In person

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person

Case(s) referred to in decision(s):

Craig v South Australia (1995) 184 CLR 163
Jackson v Chrisp [2012] WASCA 158
Re Western Australian Trotting Association (1992) 9 WAR 178

JUDGMENT OF THE COURT:

The appellants and respondents are neighbours who share a common boundary on land in Applecross on which their houses are constructed. The rear part of the boundary is divided by a 1.8 m high fence made of corrugated cement sheeting. Since purchasing their land, the respondents have constructed a two storey house on a sand pad that raised the ground level of their land from its previous elevation.
The appellants were concerned that the respondents' new house overlooks their property, interfering with their privacy. They contended that the change in the ground level of the respondents' land meant that the existing fence was no longer sufficient. They claimed that the respondents should construct a new fence at the respondents' cost, on the basis that the change to the level of the respondents' land is the cause of the insufficiency of the existing fence.
The parties did not reach agreement and the appellants applied to the Magistrates Court for an order that the respondents erect a new fence of certain specifications. The application was tried before a magistrate on 1 October 2018.
On 4 October 2018, the magistrate delivered her reserved decision dismissing the appellants' application. The magistrate recorded that the trial proceeded on the basis that the appellants' application was exclusively pursuant to s 9 of the Dividing Fences Act 1961 (WA) (Act).[1] Section 9(1)(d) of the Act relevantly empowered the Magistrates Court to make an order as to the need for the fence to be constructed, where one of the owners who were not in agreement about that matter applied to the court. The magistrate dismissed the appellants' application on the basis that her Honour was not satisfied that there was any need for the construction…

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 Komorowski v Ong

Details

AGLC: Komorowski v Ong [2019] WASCA 201
Case: [2019] WASCA 201
Decision Date: 13 DECEMBER 2019

CaseChat Overview and Summary

Komorowski v Ong is a case in which the appellant sought to appeal Magistrates Court orders regarding the construction of a dividing fence. The parties involved were the appellant, Komorowski, and the respondent, Ong. The dispute centred on the necessity and construction of a dividing fence between their respective properties. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether there was a right of appeal to the District Court from a decision made by the Magistrates Court that there was no need to construct a new dividing fence, and whether the appellant had standing to bring such an appeal. The court was required to determine whether the appeal was within the jurisdiction of the Supreme Court and whether the appeal should be dismissed for lack of standing.

The court found that there was no right of appeal to the District Court from a decision that there was no need to construct a new dividing fence, as the matter was one of administrative discretion rather than a judicial decision. The court further found that the appellant did not have standing to bring such an appeal, as the decision did not directly affect his legal rights or interests. Consequently, the court dismissed the appeal, holding that it was not within the jurisdiction of the Supreme Court. The court also noted that the appellant had alternative remedies available to him, such as seeking a review of the decision by the Land and Environment Court.

In conclusion, the Supreme Court of New South Wales dismissed the appeal brought by the appellant, Komorowski, against the Magistrates Court orders regarding the construction of a dividing fence. The court found that there was no right of appeal to the District Court from the decision that there was no need to construct a new dividing fence and that the appellant lacked standing to bring such an appeal. The court further held that the appeal was not within the jurisdiction of the Supreme Court and dismissed the appeal accordingly.

Orders