Mills v Banks
[2022] VMC 9
•29 MARCH 2022 and 19 APRIL 2022
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
CIVIL DIVISION OF COURT
Case No. K11041146
| JAN ELIZABETH MILLS | Plaintiff |
| v | |
| WAYNE & MELISSA BANKS | Defendants |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 5 FEBRUARY 2021 & 7 DECEMBER 2021 |
DATE OF DECISION: | 29 MARCH 2022 and 19 APRIL 2022 |
CASE MAY BE CITED AS: | MILLS V BANKS |
MEDIUM NEUTRAL CITATION | [2022] VMC 9 |
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CATCHWORDS – FENCING DISPUTE.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Campbell | Hibbert & Hodges |
| For the Defendant | Mr Bingham | Falcone & Adams |
HIS HONOUR:
This matter proceeded before the court on 5 February 2021 and 7 December 2021.
Subsequent to oral evidence being given by the parties on 7 December, written submissions were filed by Ms Mills on 11 February 2022, Mr & Mrs Banks on 18 February 2022 and submissions in response by Ms Mills on 23 February 2022.
The facts, not in dispute are;
a. Ms Mills was the owner of both No.94 and No.96 Capes Rd Lakes Entrance;
b. On 10 October 2017, the Banks purchased No.94 from Ms Mills and entered into a Contract with a settlement date of 29 November 2017;
c. The Contract entered into included special conditions which are the subject of a dispute between the parties, and which has resulted in litigation in this court issued by Ms Mills on 29 March 2019 and by the Banks in the County Court on 10 July 2019 with all proceedings being initially resolved by virtue of a Deed of Settlement dated 29 May 2020.
d. The ongoing dispute relates to;
i. The interpretation and application of a ‘special condition’ in the Contract of Sale; and
ii. The interpretation of Clause 3 (a) (iii) of the Deed of Settlement dated 29 May 2020.
Following the Hearing on 5 February 2021, the Court determined that;
a. In accordance with Clause 6 of the Deed of Settlement dated 29 May 2020, the defendants were permitted to apply for a right of re-instatement of the Magistrates Court proceedings;
b. That an injunction be granted preventing the construction of the proposed fence; and
c. Costs were reserved.
On 10 March 2021, the Court approved the construction of 2 panels of fencing on the boundary of the properties in order to enable the defendants to have the opportunity to ascertain how restricted their ‘views’ of the North Arm Waters would be if the proposed fence was to be constructed. The defendants subsequently opposed the construction of the fence.
In support of their respective positions, prior to and subsequent to the initial Hearing on 5 February 2021, the parties filed Amended Pleadings, Affidavits and Exhibits as follows:
a. An Amended Complaint filed 12 May 2021;
b. An Amended Defence filed 21 May 2021;
c. A Further Amended Summons filed by the Defendants on 1 November 2021;
d. Affidavits of Ms Mills dated 28 January 2021, 18 October 2021 and 1 December 2021;
e. Affidavits of Mark Stephenson (Fencing Contractor) dated 18 October 2021, 27 October 2021 and 3 December 2021;
f. Affidavits of Wayne Banks 23 December 2020 and 23 September 2021 and Melissa Banks dated 27 January 2021;
g. Affidavits of Ashley Hermanus (Fencing Contractor) 28 September 2021 and 1 November 2021;
At the Hearing on 7 December 2021, sworn evidence was given by Ms Mills, Mr Stephenson, Mr & Mrs Banks and Mr Hermanus.
When determining the dispute, the Court is required to have regard to not only the agreement between the parties, but the provisions of the Fencing Act 1968 and in particular s 6, s 12 and s 30C. In relation this proceeding, the relevant provisions are;
a. S 6c – the reasonable privacy concerns of the owners of the adjoining lands;
b. S 6d – the types of dividing fences used in the locality;
c. S 6h – the existence of any agreements or covenants that are relevant to the adjoining lands;
d. S 12(1)(d) – an owner of land must not undertake fencing works, or any subsidiary works unless the works are carried out – in accordance with another agreement between the owners of the adjoining lands;
e. S 30C(1)(d) – the Court may make an order as to – the nature of the fence that constitutes a sufficient dividing fence for the adjoining lands.
The relevant conditions of the Deed of Settlement entered between the parties on 29 May 2020 included a Condition that any building works or improvements built on Ms Mills property would not interfere with the current views from the dwelling of the Banks property, and in particular, so far as it relates to fencing, Condition 3a (iii) provided; “the balance commencing at 52.05 metres to the rear of the properties in the style of a fence that consists of columns and blades to be first approved by the Banks, such approval not to be unreasonably withheld”.
The central issue in the dispute between the parties relates to the interpretation and effect of this condition.
The court has considered the Affidavit material filed, the sworn evidence given, and the written submissions filed by the parties. I do not intend to repeat or summarise the evidence or the submissions made. In the court’s opinion, the fundamental issue relates to the meaning and application of Condition 3 a (iii) of the Deed of Settlement signed by the parties on 29 May 2020. The evidence presented to the court indicates that there are a number of possible fencing alternatives.
Mr Stephenson, who gave evidence on behalf of Ms Mills told the court that the most appropriate material for the contemplated fence is timber as it is the most cost-effective option (estimated cost approximately $2,350), is more readily available than other materials and at lower prices. He did give evidence that an aluminium fence is impervious to oxidation and rust from the salt air and is therefore particularly beneficial for construction around Lakes Entrance compared with other metals but is considerably more expensive. He anticipated that the cost of such a fence would be approximately $15,000. Mr Stephenson also told the court that a Colourbond fence or powder coded steel fence would be inappropriate in that area.
Mr Hermanus gave evidence on behalf of the Banks. He agreed with Mr Stephenson that a Colourbond fence would be unsuitable and that the construction of an aluminium fence would be the most appropriate type of fence for the reasons given by Mr Stephenson and that it would provide for greater visibility. Mr Hermanus told the court that he would be concerned if a timber fence was constructed as it would reduce visibility, would bow and twist over a period which would also impact on visibility.
In my opinion, it is relevant and highly significant that at the time of entering into the Deed of Settlement on 29 May 2020 the parties had viewed the proposed style of fence as depicted in Exhibit WNB (2) notwithstanding that the actual photo of the proposed Fence was not incorporated into the Agreement. As stated, both Fencing contractors gave evidence that an aluminium fence would be the most suitable to construct in the area. It appears that such a fence with blades 65mm wide, on a 68-degree angle and 5-8mm thickness would allow for the views of the North Arm Waters to be maintained whilst at the same time providing a degree of privacy for Ms Mills. In my opinion, the wooden fence constructed by Ms Mills subsequent to the Court hearing on 10 March 2021 reduces visibility and despite the costs of installing such a fence being significantly less than the proposed aluminium fence, it appears from the evidence of Mr Hermanus (and not disputed by Mr Stephenson) that the structure of a wooden fence will deteriorate over a short period of time notwithstanding the undertaking given by Ms Mills that she would regularly re-paint the fence when required.
The decision of this court, after considering the evidence given by the parties and the written submissions filed is ultimately dependent on the meaning and effect of Clause 3 (a) (iii) of the Deed of Settlement entered into by the parties on 29 May 2020. As indicated, the parties agreed that insofar as the rear fencing was concerned, it was to consist of ‘columns and blades’ which was firstly to be approved by the Banks, with such approval not to be unreasonably withheld.
The Deed of Settlement was entered into after all parties had seen and approved of the construction of the proposed fence as illustrated in the photo provided by Ms Mills. The style of the fence depicted in that photo led to the agreement being entered into although it did not form part of the agreement.
The basis on which the agreement was signed by the Banks on 29 May 2020 was their understanding that the construction of that type of fence, being columns and blades, would preserve their views of the North Arm Waters from their property.
The appropriate fence to be constructed in accordance with the Deed of Settlement is an aluminium fence consisting of columns and blades as is recommended and supported by both Mr Hermanus and Mr Stephenson. This type of fence as agreed to between the parties on 29 May 2020 will allow the Banks to have views of the North Arm Waters providing it consists of thin angled blades with thin columns and rails. It will also provide some privacy to Ms Mills.
Accordingly, I find that the Banks refusal to approve the construction of a wooden fence was not unreasonable and is in accordance with the Agreement entered into between the parties.
I will not grant the Application filed by the Banks dated 1 November 2021 seeking that the proceedings be re-instated as it was re-instated on 17 February 2021. Furthermore, the Orders sought to be made in the Amended Summons dated 1 November 2021 relate to a Pool Fence and Hedge plants on Ms Mills property. These are separate issues of contention between the parties which do not form part of these proceedings and which if unresolved will require separate proceedings to be issued and litigated.
Subsequent to delivering the decision on 29 March 2022, the court considered the oral and written submissions of the parties concerning the appropriate Costs Order to be made. The defendant made oral submissions and filed written submissions on 29 March and the plaintiff filed written submissions on 8 April 2022.
After considering the oral and written submissions made by the parties, the court has determined that the plaintiff is to pay the defendants costs on Scale (G) of the Magistrate’s Court Costs Rules and in the absence of agreement the Costs are to be assessed by the Costs Court with liberty to apply.
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