Mehra v Paynter (No 2) - [2022] SADC 106

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
MEHRA AND ANOR v PAYNTER (No 2)
[2022] SADC 106
Judgment of his Honour Judge Slattery (ex tempore)
16 August 2022
MAGISTRATES - APPEAL AND REVIEW
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS
On the encroachment issue, I vary the orders made by the learned Magistrate and give judgment on the cross-appeal in favour of the respondent, Mr Paynter.
Due to the reasonable offers made by the respondent, Mr Paynter, which were not considered by the applicants, the respondent shall have both his Magistrates Court costs and District Court costs.
Encroachments Act 1944 (SA) s 3, s 5, s 6, s 7, s 8, s 11; Magistrates Court Act 1991 (SA) s 38; Fences Act 1975 (SA) s 12, referred to.

MEHRA AND ANOR v PAYNTER (No 2)
[2022] SADC 106

In my first judgment in this matter, I affirmed the decision of the learned Magistrate made on 25 February 2022, that the existing fence was to be replaced with a Good Neighbour Superdek fence 1.8 metres in height, about 30 metres in length and in a slate grey colour. Subject to order 3, the boundary between the properties was set in accordance with the surveyor's certificate of Peter Mark Gilbert of 18 February 2020. The third order made by the learned Magistrate was that at the front of the property, the new fence was to commence alongside of the respondents’ front pillar, notwithstanding that the front pillar encroaches onto the applicant's land.
I made other orders such that at their own cost, the respondents must remove tree stumps next to the respondents’ shed within 35 days and that the $4,998 quote by C&J Fencing Construction was to be paid equally by the applicant and the respondents. Mr Paynter has already made payment of his portion of this cost.
An issue has arisen on the cross-review grounds filed before me. They relate to [57]-[70] of the judgment of the learned Magistrate. That portion of the judgment dealt with the pillar at the front of number 16 and the encroachment onto the property of the applicant, Mr Paynter.
There was a survey tendered but there was criticism of the survey. Mr Hopkins, who was an expert, informed the learned Magistrate at an inspection in the company of Mr Hopkins, that the respondents had a pillar to accommodate their driveway gate and that pillar slightly encroached onto the applicant's property. If the fence was to be put onto the boundary then that pillar would have to be removed.
Mr Hopkins gave evidence that the pillar encroached approximately 0.22 mm onto the applicant's land; that evidence was incorrect. The encroachment is 0.22 metres onto the applicant's land, or better expressed some 220 mm onto the land.
Before the learned Magistrate the applicant, Mr Paynter, maintained his request that the pillar be moved at the respondents' cost and that the proposed fence be installed on the correct boundary. The learned Magistrate reviewed s 11 of the Encroachments Act 1944. Section 11(1) of the Encroachments Act 1944 provides that in any proceeding before a court, however it originated, the court may, if it sees fit, exercise any of the powers conferred by this Act and may stay proceedings on such terms as it deems proper. I consider this to be a slightly unusual provision for a number of reasons. Section 3 of the Encroachments Act 1944 provides that the jurisdiction with which a court is invested under and pursuant to the Act will, subject to s 11, be exercised by the Supreme Court.
There is a carveout in s 11(1) and it appears that s 11(1) operates to enable a court such as this Court to exercise any of the powers conferred by the Act. The powers conferred by the Act include for compensation (s 5), for a charge on land (s 6), for compensation and conveyance (s 7), and for further compensation and conveyance by the adjacent owner (s 8).
After considering s 11 of the Encroachments Act 1944, the learned Magistrate then found that he had the power to determine the issue of the disposition of claims about the encroachment matter in such a matter as he considered just. He found at [70]:
Given the respondents evidence concerning the pillar and the minor nature of the encroachment, I do not consider it warranting the relocation of the pillar at the respondents expense.
That was a decision that was open to the learned Magistrate upon a proper assessment of the facts. However, the learned Magistrate did not have before him all of the correct evidence. The pillar encroaches approximately 220 mm and not 22 mm. It appears that the minor nature of the 22 mm encroachment, as was understood by the learned Magistrate, influenced his decision in the matter. It is necessary that I revisit that finding under the powers provided to me pursuant to s 38(7) of the Magistrates Court Act 1991.
In the notice of cross-review, Mr Paynter complains of the incorrect recording of the encroachment by the learned Magistrate and asserts that the encroachment is not minor in nature and that the pillar measuring some 300 by 300 mm means that the majority of the pillar is on his land. He complains that the pillar has no structural integrity, although it is known from the photographic evidence before the Court that there are gates attached to the pillar. It is asserted, but there is no evidence on the topic, that the gates have remained open at all times.
There is attached to the pillar a wooden slatted fence running along a portion of the common boundary. The concern of the cross-applicant is that if the slatted fence is removed, then it will be necessary to cause damage to the pillar. This is because there is an upright piece attached to the pillar, to which the slatted pieces of timber are attached.
There is also a concern that in order to erect the fence, the contractor is required to dig holes close to the pillar in order to concrete in the fenceposts. That in turn raises concerns about the stability of the pillar. Mr Paynter also intends to erect a front fence as soon as this side fence is resolved, and the two fences would meet at the corner, but the pillar is obstructing that fence-work for both fences.
Mr Paynter seeks an order that, pursuant to s 12(2)(j) of the Fences Act 1975, I make an order that the pillar be removed. Under that provision, I may make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of fencing work. In my view, no such order could be made unless it was also allied to an exercise of power and discretion under the Encroachments Act 1944.
The alternative order sought by Mr Paynter was that the respondents remove the wooden section of the fence prior to the fencing work commencing, and if the pillar stability should be compromised, the pillar would not be repaired or replaced but be removed. In the event that the respondents do not remove the wooden slatted fencing, then the fencing contractor be authorised to remove it, exercising as much care as is reasonably possible.
I have received today a further exhibit, which I have marked Exhibit CA5. It is page numbered. The first page is a letter from C&J Fencing, addressed to Mr Paynter, which describes the pillar. The writer expresses an opinion that the pillar appears to be poorly built and suggests that it was not designed to hold the gate which is attached to it.
The writer also says that it will be necessary to remove the wooden part of the old fence attached to the pillar, and there will be damage. The render behind that section of the timber attached to the pillar, which holds the horizontal wooden slats, may come away with the attached timber piece and inevitably there may be holes left in the pillar. There may also be some further attachment of this wooden section to the galvanised iron fence.
The writer also suggests that the pillar's stability may be further compromised during the construction of the new fence, as there will need to be a new concrete footing alongside of it to hold the posts, so that the panel will sit next to the pillar. There may be a small gap. That same issue will arise when the front fence is constructed, because a post will need to sit next to the pillar which is the encroachment on the land. The alternative was to put the fence across 22 cm of the face of the front pillar, which obviously would be unsatisfactory to Mr Paynter.
The writer then suggests that there is a risk that the front pillar will be able to lean against the new fence and cause damage in the future. The preferred position would be that the pillar is removed.
In the materials before the Court, particularly at Exhibit RA1, photographs 32 and 33, it is apparent that there is an existing substantial front fence along the front of the property owned by the Mehras. It consists of a base and upright pillars. Looking at the photos and though there may be some doubt about accuracy, there appears to be at least nine upright pillars along that fence line. There is then a base, and in the space between the pillars there is a wooden slatted attachment giving privacy. The fence therefore comprises the pillars, the base and the wooden slatted arrangement.
The driveway gates are attached to the last two pillars, including the pillar which is adjacent to the land of Mr Paynter. These are shown in the photographs as open gates. The attachment mechanism of the gates as seen in photograph number two on Exhibit CA5 shows the substantial attachment to the pillar, and there is no cracking around that attachment. It is not for me to make any assumptions about the construction of that pillar or about appropriate evidence on that topic.
In the circumstances, I am able to identify that the learned Magistrate appears to have proceeded upon a wrong assumption. The encroachment is not 22 mm, but 220 mm on the land of Mr Paynter. I am therefore required to reconsider the Encroachment Act 1944, and the question of the exercise of the discretion. I have the ability to exercise all of the powers under s 4, including that I make such orders as I deem just, with respect to the payment of compensation, conveyance or removal; and I may grant or refuse relief or any part thereof as I deem proper in the circumstances of the case, and in the exercise of my discretion (see s 4(1)(2)(3) of the Encroachments Act 1944). It is noteworthy that s 4 of the Encroachments Act 1944 leaves entirely open the question of the exercise of my discretion.
I have already made orders for the contribution to a fence made by each owner of the adjoining properties, of a fence of the type that I have described; namely, a 1.8 metre high, 30 metres long Good Neighbour Superdek fence, in slate grey colour.
I have earlier indicated the detail of the fence involved and the encroachment of the pillar of 220 mm into the property of Mr Paynter. In the construction of the new fence, it will be necessary for the slatted timber fence running along the common boundary to be removed as well as the existing fence, for the removal of the tree stumps that exist in the ground and in the way of the fence along the boundary and other orders.
It is not in contest and I find that an encroachment exists and that there is an entitlement to relief in favour of Mr Paynter. In making my decision, I bear in mind the significance of the pillar, the nature of the dispute, the consistency of the other portions of the Mehras’ front fence and the continuation of the fence line on the land of Mr and Mrs Mehra. I have taken all of those matters into consideration in reaching my decision not to exercise my discretion to require the removal of the pillar. There are other reasons. There is a timber gate attached to the pillar and it would become necessary for costs to be incurred for the creation of a new pillar point for that gate, which would require building an upright column of significant strength to which the date could be attached. The second is that there is no current information before this Court about the costs to be incurred in the creation of a new pillar. I accept that this is largely the fault of the Mehras but it is a fact I must weigh in the balance. This was the fence that existed at the time that Mr and Mrs Mehra purchased their home and notwithstanding that I accept that an encroachment exists, for all of those reasons I would refuse relief under the Encroachments Act 1944 for the removal of the encroachment. However, that is not the end of the breadth of my discretion.
In Exhibit CA5 is a document marked number 6. It is dated 10 May 2022. It follows the letter of advice received from C&J Fencing. It deals with the cost of labour required and I will assume the costs of supply of a post to be installed at the front of the block adjacent to the pillar. The labour part of the quote is valid for 30 days and the materials costs may increase. In fixing this post (next to the pillar), which I accept requires extra work over and above that which would otherwise be required, further costs will be incurred. This cost is quoted at $80.55. In my opinion, the proper exercise of my discretion is to require the Mehras to pay the sum of $80.55 as a further cost of the installation of the post adjacent to the pillar.
In those circumstances, I would not order the removal of the pillar but I order that there be a judgment on this cross-appeal in favour of Mr Paynter for the sum of $80.55, as the cost of the installation of the post at the point of the pillar after the removal of the wooden slatted fence and the remaining portions of the corrugated iron fence.
I refuse to make any other order for the repair of the pillar bearing in mind that the work may be done in circumstances where, for example, the current attachment to the pillar which supports the horizontal wooden slats running down the common boundary, may be left in situ and not removed. I am able to make that judgment based upon the fact that there is an encroachment of some 220 mm and it is apparent that that portion of the fence sits at the very outer edge of the pillar and not at a point beyond the amount of 220 mm into the pillar towards the home of the cross-respondents. I refer in particular to the photograph that I am referring to marked (2) in Exhibit CA5.
In those circumstances, I would vary the orders made by the Magistrate only to the extent that in the exercise of my discretion under the Encroachments Act 1944. I further order that the Mehras pay to Mr Paynter the sum of $80.55 as the cost of a further post adjacent to the front pillar of their property.
On the issue of costs, I have before me evidence of offers made by Mr Paynter to resolve this fencing issue. Those offers were not bettered by the Mehras in their defence of this claim. They are reasonable and to an extent more generous than the orders that I have made. The offers were made at a time when the Mehras had sufficient opportunity to give them proper consideration. Mr Paynter should have the benefit of the offers on the question of costs.
In the circumstances, I think it is appropriate that in light of all of the very reasonable offers that have been made by him, Mr Paynter should have his Magistrates Court costs of $267 and his District Court costs of $177. I order accordingly.