Larney v Johannson - [2012] NSWSC 1297

Supreme Court

New South Wales

Medium Neutral Citation: Larney v Johannson [2012] NSWSC 1297
Hearing dates: 14 August 2012
Decision date: 14 August 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
1. Appeal dismissed.
2. Indemnity costs in favour of the defendant.

Legislation Cited: Dividing Fences Act 1991
Uniform Civil Procedure Rules 2005
Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333
Alwiah v Watts [2004] NSWSC 948
Brown v Doyle [2010] NSWSC 1269
Category: Principal judgment
Parties: Ismail Larney (Plaintiff)
Angela Johannson (First Defendant)
New South Wales Local Land Board (Second Defendant)
Representation: L Doust (Plaintiff)
A Davis (First Defendant)
Griffiths Delaney & Co (Plaintiff)
Fox O'Brien Solicitors & Conveyancers (First Defendant)
I V Knight, Crown Solicitor (Second Defendant)

File Number(s): 2012/72116

EX TEMPORE Judgment

Introduction

Two neighbours were in conflict over a dividing fence. Their dispute came before a Local Land Board pursuant to the Dividing Fences Act 1991 (the Act). The Board, constituted by Senior Chairman Boyce, heard the matter on 6 February 2012 and issued a determination on the same day. The Senior Chairman, in addition to hearing from the parties, who were unrepresented, also visited the site.

The chronology of events

On about 17 October 2011, the Defendant gave the Plaintiff notice that she required the Plaintiff to contribute towards the construction of a fence on the boundary between the properties. The notice stated that the fence proposed to be constructed was "wire fencing". A further notice from the Defendant dated 6 November 2011, in similar form but nominating "black PVC wire" as the form of fencing and attaching a quote for works, was also served on the Plaintiff. The Plaintiff wrote to the Defendant on 9 November 2011 in which he confirmed a letter dated 7 November 2011, his objection to the proposed fence on the following grounds -

(a) the type of fencing proposed was out of keeping with that in the local area; and

(b) the location of the proposed fence, in particular, his concern that there would be damage to a rocky outcrop and grass trees.

The Plaintiff indicated he would make application to the Local Land Board in respect of the proposed fencing (for the fence to be rebuilt and any damage to natural features be restored) at the expiration of one month.

On 11 November 2011, a contractor engaged by the Defendant erected a fence of the type she had foreshadowed in her notice, and which had been objected to by the Plaintiff. The fence was described by the Local Land Board in its reasons (at [7]) as being -

"... built mostly within the Respondent's [Defendant's] land, splaying on to the Applicant's [Plaintiffs] land to join up with the end of a paling fence next to a sandstone rock outcrop."

The Plaintiff's application of 11 December 2011 to the Local Land Board to deal with the matter was accompanied by a letter dated 10 December 2011 asking the Board to "determine the manner in which fencing work…

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 Larney v Johannson

Details

AGLC: Larney v Johannson [2012] NSWSC 1297
Case: [2012] NSWSC 1297
Decision Date: 14 August 2012

CaseChat Overview and Summary

Ismail Larney, the plaintiff, appealed against the decision of the Local Land Board, which was constituted by Senior Chairman Boyce, regarding a dispute over a dividing fence between his property and that of Angela Johannson, the first defendant. The Local Land Board determined that the fence built by Johannson was sufficient under the Dividing Fences Act 1991. The New South Wales Local Land Board, the second defendant, was also a party to the proceedings. The appeal was heard on 14 August 2012, and the decision was delivered on the same day. The key legal issues were whether the Local Land Board had the jurisdiction to determine the appropriateness of the fence when it had already determined that the fence was sufficient and whether the plaintiff's arguments about the sufficiency of the fence should have been considered.

The court considered the language of the Dividing Fences Act 1991 and previous cases such as Alwiah v Watts and Brown v Doyle, which suggested that the board's jurisdiction to make orders under section 14 of the Act was contingent upon a finding that the existing fence was insufficient. The court also noted the public interest in avoiding unnecessary litigation over matters of aesthetics and taste when a sufficient dividing fence already exists. While the arguments presented by both parties had merit, the court adhered to the precedent established in this jurisdiction, applying the principle of judicial comity. Consequently, the appeal was dismissed, and indemnity costs were awarded in favour of the defendant.

The final orders of the court were as follows: (1) The appeal is dismissed, and (2) Indemnity costs in favour of the defendant.

Orders