Mehra v Paynter (No 1) - [2022] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
MEHRA AND ANOR v PAYNTER (No 1)
[2022] SADC 105
Judgment of his Honour Judge Slattery (ex tempore)
11 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
In substitution for [94] of the orders made by the learned Magistrate, I make orders as found in [37] of this judgment.
I will further consider the issues of encroachment and costs.
Magistrates Court Act 1991 (SA) s 38; Fences Act 1975 (SA) s 4, s 12, s 16; Encroachments Act 1944 (SA) s 11; Uniform Civil Rules 2020 (SA) R 214.1(1), R 214.2(1), referred to.

MEHRA AND ANOR v PAYNTER (No 1)
[2022] SADC 105

This is an application for review under s 38 of the Magistrates Court Act 1991 (MCA) of a decision in a minor civil action. That decision was made by Magistrate Fotheringham on 25 February 2022.
In such a review under s 38 of the MCA, s 38(7) has application. It provides as follows:
(7) The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the 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;
(d)in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A) substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(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.
In hearing and determining this review I must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In the conduct of this review, there were some difficulties in relation to the attendance of the applicant, Mr Mehra. I made arrangements for Mr Mehra to attend by telephone. I also made arrangements for there to be an interpreter for Mr Mehra to be present in Court. Prior to the commencement of this review, the Court received a medical report in letter form from his General Practitioner asking that the hearing be delayed as Mr Mehra has experienced considerable amounts of stress and anxiety on account of these proceedings. No estimated date or timeframe was provided in this letter as to when Mr Mehra may become available for this hearing. That is an unsatisfactory situation where, as here, this is a review of a minor civil claim initiated by Mr Mehra and his wife about their common fence line with Mr Paynter. After asking some questions of Mr Mehra, I was satisfied that he was more than capable, physically and mentally to proceed with the hearing. He was alert, loquacious and demonstrated to me that he was aware of and was across the issues. Although this aspect carried little, if any, weight in the exercise of my discretion, it is to be recalled that Mr Mehra and his wife are the applicants here and Mr Paynter wishes to have the application heard and determined, as he held the benefit of a judgment at first instance. I will hereafter refer to the applicants as Mr Mehra for the sake of convenience and brevity.
I decided to proceed to hear the application and to give to Mr Mehra as much assistance as I thought reasonable. Part of that assistance was the provision of a court appointed interpreter. The interpreter has interpreted each of the exchanges between the applicants, the respondent and the Court and I am satisfied that Mr Mehra completely understood the whole proceeding in which he was involved as an applicant on the review. I am grateful to the interpreter for the task that he has undertaken.
This dispute is a neighbour dispute concerning fences. The parties are owners of adjoining properties at Oaklands Park and they share a common boundary. There is a fence on that boundary which was constructed generally of corrugated iron with timber posts and rails. There are some portions of the fence which may differ from that description.
Mr Paynter, the respondent before me and the applicant on the application before the learned Magistrate formed the view that the fence needed to be replaced. He had prepared a quotation to replace the existing fence by the erection of a 1.8 high metre Colourbond slate grey fence, called a Good Neighbour Superdek fence.
The fence was to be about 30 metres in length between the properties. In accordance with the Fences Act 1975, Mr Paynter served on the Mehras personally a Form 2 dated 27 March 2021 containing a quote from C & J Fencing Construction Pty Ltd to replace the existing fence. The quote was in the amount of $4,632.52.
Mr and Mrs Mehra objected to that proposal and filed a Form 3 dated 23 April 2021 in response. They proposed the repair of the existing fence and they had obtained a quotation for $1,100 for those repairs. There was no resolution of the dispute. It was then necessary for Mr Paynter to issue his originating application which he did on 28 April 2021. He sought orders that the fence be replaced as per the quotation of C & J Fencing and that the fence be aligned on the boundary as per the survey. He also sought orders that an encroaching pillar owned by the respondents be removed and any other construction restricting the fence being installed by the boundary also be removed.
The learned Magistrate refused to make orders in relation to the encroaching pillar, however he did make an order that the respondents at their costs were to remove tree stumps next to the respondent's shed within 35 days of the order.
There was a trial before the learned Magistrate on 3 February 2022 and the parties were not represented. His Honour identified the evidence which he accepted, which consisted of affidavits from the respondent and the applicant and other evidence including bundles of documents in Exhibit A4. The respondents, Mr and Mrs Mehra, tendered a bundle of documents Exhibit R3 and after the trial the applicant, on the request of the court, provided an earlier quotation from Adelaide Fence Centre dated 19 October 2020 for fencing work in the amount of $14,367.11. For obvious reasons, the learned Magistrate has given no further consideration to that quotation.
Also accepted into evidence by the learned Magistrate was an expert’s report document called the Hopkins report. That report was prepared at the request of the Court as an appraisal regarding the dispute between the parties. I have read the report thoroughly. It is dated 8 November 2021 and I have taken it into account in making my decision here.
The learned Magistrate then considered the powers given to the Court under the Fences Act 1975 in relation to a fencing dispute. The learned Magistrate correctly recorded that he may make any findings or determination in relation to: the performance of maintenance work or the replacement of a fence, who should perform the fencing work, the time when it is to be performed and any orders in relation to access to the property for that purpose. The Court is also in a position where it may determine the costs of the fencing work and the proportions for payment of that fencing work, as well as giving directions necessary to overcome any difficulties in allowing fencing work to be performed.
His Honour then considered s 4, s 12 and s 16 of the Fences Act1975. Those were the principles which he applied in the determination of the matter.
His Honour first turned his attention to the question of the adequacy of the fence. His Honour reviewed all of the evidence concerning the adequacy of the fence. This included the length of the boundary, other buildings currently being built on adjacent properties, the evidence concerning what had been occurring in relation to the repair of the existing fence, and the content of the report of Mr Hopkins. That report indicated incorrectly that the respondent's property had a 2 metre high Good Neighbour fence. That was not correct because it was only a 1.8 metre high fence and it was a post and rail fence and not a 2 metre high Good Neighbour fence. There were some criticisms of the Hopkins report and although his Honour accepted some of those criticisms he did not reject the report notwithstanding some inconsistencies. That was open to his Honour in the circumstances.
His Honour also rejected any suggestion that C & J Fencing were not properly licensed to do the work. This submission was put but only faintly.
His Honour gave consideration to all of the fences in the area after having made an inspection of the property and he inspected the surrounding areas and noted a number of Good Neighbour fences in the area. On the basis of all of the evidence and material before him, his Honour found that the proposed fence by the applicants is an appropriate fence in the area. The proposed fence is 1.8 m high. In evidence before me today Mr Mehra accepted that that was an appropriate fence in the area.
His Honour then turned his attention to the question of a survey and in that context his Honour considered the question of an alleged encroachment of the pillar at the front of the Mehras’ house which served as the pillar on which a heavy driveway gate swung. After giving consideration to s 11 of the Encroachments Act 1944 his Honour decided that the evidence concerning the pillar and the minor nature of the encroachment meant that he would not make an order for the relocation of the pillar at the respondent's expense. There is an error in his Honour’s judgment in that he considered that the encroachment was only 22 mm; it is 220 mm.
His Honour then gave consideration to the operation of s 16(3) of the FencesAct 1975 which provides as follows:
(3)An adjoining owner shall not be entitled to recover contribution for any fencing work under this Act in so far as that fencing work consists in the repair of damage resulting from his own wrongful act or default.
His Honour considered the evidence concerning the removal of trees on the applicant’s side and the effect this would have. Based upon site visits and the photographs his Honour decided that the structure of the fence posts on the existing fence had been compromised in a number of areas and not merely where trees or plants had been removed. He found that the removal of the trees and plants by the applicant did not materially damage the fence and, therefore, s 16(3) of the Fences Act1975 was not relevant. Nothing has been put to me today to indicate anything inconsistent with that finding.
Finally, his Honour then gave consideration to the cost of the fence. His Honour confirmed that the existing fence was inadequate and, therefore, the final issue for his determination is the respective contributions to the costs of replacing that proposed fence. In the usual course that cost would be borne equally but the Court has power under the Fences Act 1975 to apportion the costs of the erection of the fence based upon benefit.
His Honour considered the benefit to be taken by each of the parties to the fence. His Honour found that having made a finding that the proposed fence was an adequate fence, there should be an equal liability for the costs of the construction of the fence because each owner was taking an equal benefit from the fence. His Honour then considered the question of whether or not the delay by the respondents should lead to an order by the court of an increase in the contribution by the respondents of $365. His Honour found that having regard to all of the evidence before him and, in particular, the importance of the inspection made by his Honour of the area, that he did not consider that he should depart from the ordinary principle of equality that the costs should be borne equally by both parties. His Honour confirmed that both parties would have privacy, security and enjoyment of the benefits of the fence and, therefore, the costs of the replacement fence should be borne equally by them in the amount of $2,499.
His Honour then made a series of orders at [94], that paragraph provides as follows:
Orders
[94] Accordingly, I make the following orders:-
1. The existing fence is to be replaced with approximately 30m long Good Neighbour Superdek fence 1.8 metres in height in Slate Grey.
2. Subject to Order 3 the boundary between the properties is to be set in accordance with the surveyors certificate of Peter Mark Gilbert of Gilbert Surveyors Pty Ltd, dated 18 February 2020.
3. At the front of the Applicant’s and Respondents’ property, the new fence is to commence alongside the Respondents’ front pillar (and the new fence is not to damage or remove that front pillar) notwithstanding the front pillar is on the Applicant’s boundary.
4. Any damage to the Respondents’ front pillar is to be made good by the Applicant and/or the Applicant’s contractors.
5. The Respondents, at their cost, are to remove the tree stumps next to the Respondents’ shed within 35 days of this order.
6. The Applicant is to provide a copy of the survey and this order to C&J Fencing and the Applicant is to, in writing, advise C&J Fencing of Order 3 and 4 herein.
7. Subject to Order 10 herein, the Applicant is to instruct C&J Fencing within 28 days, and, subject to C&J Fencing & Construction’s availability, the work is to be commenced within 42 days.
8. The cost of $4,998.00 quoted by C&J Fencing & Construction is to be paid equally by the Applicant and by the Respondents.
9. In the event the Respondents fail to pay the sum referred to in Order 8 herein, the Applicant is at liberty to apply for summary judgment in his favour for the amount due and payable.
10. No order as to costs of the litigation herein.
11. The Applicant cannot commence any of the work authorised in these orders until the expiration of 21 days from the day of this order.
12. A copy of today’s order is to be sent by the Registry to both parties.
Before proceeding further, it is necessary that I identify a number of matters that were raised with me by Mr Mehra in evidence. He suggested that threats had been made by Mr Paynter and his mother Mrs Paynter concerning the attempt by him to obtain another quotation. He said that he had made arrangements for the procuring of another quotation but because of the behaviour of the Paynters that had not been provided.
Evidence given by Mr Paynter and his mother Mrs Paynter before me indicate that there is no substance in that allegation. I am satisfied that there was an exchange at the time that Mr Paynter was attempting to serve documents upon Mr Mehra, that at the time a contractor was present and the contractor was the person who asked Mr Paynter and Mrs Paynter about what was happening. There was no threat.
Mr Mehra also alleged that there were more documents delivered to the learned Magistrate by Mr Paynter which had not been delivered to him and so were delivered late. Those documents were those which were given to the learned Magistrate on his request. I have earlier referred to them and they are described at [15] of the judgment of the learned Magistrate. This concerns the quotation from Adelaide Fence Centre.
I reject the assertion of Mr Mehra that these documents were provided late. As I have said, they were provided at the request of the learned Magistrate. In any event, they came to the attention of Mr Mehra and although he said these were put in late by Mr Paynter, I think that assertion cannot be supported. In my opinion the documents were delivered by Mr Paynter at the request of the Magistrate.
It was then suggested that on a particular quotation there was handwriting of Mr Paynter and, therefore, the document was handwritten by Mr Paynter. In his evidence Mr Paynter satisfied me that there was a handwritten reference on the document in accordance with an email correspondence from the fencing contractor. There is no substance in this assertion and it is not that clear what difference it makes that there was handwriting on the document.
It was then suggested that the fence involved only 15 metres rather than 30 metres. I am satisfied from the evidence that that is an incorrect assertion. Mr Mehra then suggested that the only reason a survey was needed was because there was not a pin put there by an earlier survey. I am satisfied on the evidence that the pin is present and that, therefore, the further survey to be done can be done simply and cheaply.
Next, Mr Mehra suggested that rather than the 1.8 metre high fence being slate grey that it should be a cream colour to match another fence on another boundary of his property which is also 1.8 metres high. In giving this evidence Mr Mehra agreed that a 1.8 metre fence was okay; that is, that he would agree to a 1.8 metre fence but that it should not be a slate grey colour and that a cream colour was preferred. He also said that if there was no survey the new fence could merely be installed on the place of the existing fence and he then suggested that the parties had agreed that they could fix the existing fence between them. I am satisfied from the evidence that the fence could not be fixed by agreement between the parties and the need for determination of this matter in the way in which it has occurred is proof positive of that fact.
In relation to the colour of the fence Mr Paynter has informed me in evidence that he has ordered a slate grey fence and has paid a deposit in accordance with the terms of the order to the contractor C & J Fencing for a slate grey fence. If it was necessary for him to change the colour of that fence it would come only with a cost penalty for the change. That is important because if there was to be a change to a cream colour, in accordance with the concession made only now by Mr Mehra, it would come at additional cost that Mr Mehra was not prepared to pay.
I am satisfied from the evidence of Mr Paynter that a deposit of $2,500 has been paid by him to C & J Fencing in accordance with the terms of the orders made by the learned Magistrate. I am not prepared to make any orders here that would increase the cost of that fence and so the amount sought from Mr Mehra. I refuse to make the order sought by him about the colour of the fence.
There is a particular point to be made about those orders. There is a note at the bottom of the orders under [12] that any unsuccessful party has the right to apply for a review which must be filed within 21 days of the date of the judgment in accordance with rule 214.1(1) and 214.2(1) of the Uniform Civil Rules 2020. Paragraph 11 of the orders states that the applicant may not commence any of the work authorised in the orders until the expiration of 21 days from the date of the order.
The application for review was commenced by the Mehras on the twenty first day but it was not served until 12 days later. There is no evidence to satisfy me as to why a neighbour could not have served a notice of application for review upon their own neighbour forthwith upon its commencement. There is also no evidence before me to satisfy me why there was a delay of 12 days or any time for that matter in the delivery up by service of the notice for review. That leads to other matters.

Mr Paynter in his submissions referred to [5] of the orders made by the learned Magistrate which requires the respondents, at their cost, to remove the tree stumps next to the respondents’ shed within 35 days of this order. The difficulty caused by the tree stumps concerns the placement of the fence and the ease of access and availability of a clear building site for the building contractors to construct the fence.
Mr Paynter was concerned that in the event that this work of removing these stumps was not done by the Mehras then someone would have to do that work. He also sought an amendment to the orders for payment so that the Mehras would be obligated to pay, under the orders of the Court, directly to C & J Fencing and that they were to indemnify him in relation to any further costs payable, particularly in relation to the tree stumps.
I think it is appropriate in those circumstances to make an amendment to the orders that are being made by the learned Magistrate only to take into account what is apparent from the evidence before me today and in light of everything that I have heard today. In substitution for [94] of the orders of the learned Magistrate I would make the following orders:
1.The existing fence is to be replaced with approximately 30 metres of long Good Neighbour Superdek fence 1.8 metres in height in slate grey.
2.Subject to order 3, the boundary between the properties is to be set in accordance with the surveyor's certificate of Peter Mark Gilbert of Gilbert Surveyors dated 18 February 2020.
3.At the front of the applicant’s and respondents' properties the new fence is to commence alongside the respondents' front pillar, notwithstanding the front pillar is on the applicant’s boundary.
4. The respondents, at their own cost, are to remove the tree stumps next to the respondents' shed within 35 days of this order.
5.In the event of the failure of the respondents to remove the tree stumps in accordance with para [5], the applicant be at liberty to arrange for the removal of those tree stumps and the cost of the removal of those stumps shall be at the cost of the respondent; the applicant, Mr Paynter, has liberty to apply to the Court to seek orders for payments of these costs if they remain unpaid for a period of seven days after being demanded.
6.The applicant is to provide a copy of the survey and this order to C & J Fencing and the applicant is, in writing, to advise C & J Fencing of orders 3, 4 and 5 herein.
7.Subject to order 11 herein, the applicant is to instruct C & J Fencing within 28 days and subject to C & J Fencing and Construction's availability, the work is to be commenced within 42 days.
8.The cost of $4,998 quoted by C & J Fencing Construction is to be paid equally by the applicant and the respondents and the court notes that the respondent, Mr Paynter, has already paid his 50 percent share.
9.In the event that the respondents fail to pay the sum referred to in order 9 herein the applicant is at liberty to apply for summary judgment in his favour for the amount due and payable.
10.The applicant is at liberty to commence the work authorised in these orders.
11.I will hear the parties further in relation to the costs.
12.A copy of today's order is to be sent by the registry to both parties.
13. Liberty to apply.
14.Matter is adjourned to Tuesday 16 August 2022 at 2.00 pm to continue to hear the application on the cross review.
I will deliver a second judgment on the issue of the encroachment and costs.