Nikou v Phillipson - [2009] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
NIKOU v PHILLIPSON
[2009] SADC 101
Judgment of Her Honour Judge McIntyre
29 September 2009
MAGISTRATES - APPEALS AND REVIEW
Application pursuant to s38 of the Magistrates Court Act 1991 to review a minor civil decision on a fencing dispute. Application for review dismissed.
Fences Act 1975 s12(6), s12(7), s126; Magistrates Court Act 1991 s38, referred to.

NIKOU v PHILLIPSON
[2009] SADC 101
Introduction

This is an application pursuant to section 38 of the Magistrates Court Act 1991 (the “MCA”) to review a minor civil decision made on 28 August 2009 by Mr K A Millard SM in which he ruled on a fencing dispute.
Magistrates Court Hearing
Ms Nikou sought a determination of a dispute in relation to a proposed fence along the boundary between her property at 27 Strathcona Avenue, Panorama and the adjoining property at 29 Strathcona Avenue owned by Mr Phillipson. Both parties appeared in person. The learned Magistrate received evidence including bundles of photographs, affidavit material and annexed documents. He also undertook a site visit.
His Honour reached the conclusion that the appropriate fence was a “Good Neighbour” fence constructed in line with specifications provided by Mr Phillipson in document A6 annexed to his affidavit sworn on 12 August 2009. His Honour directed that Mr Phillipson be permitted to engage his contractor to commence construction of the Good Neighbour fence no earlier than 21 days from the date of his orders. He found it appropriate that each party bear 50% of the cost of construction of the fence. His Honour reserved for further consideration the quantum of contribution given the quotation may not now be current having regard to possible adjustments in the price of steel and other components of the fence since the quotation was obtained.
The matter was adjourned to Thursday 15 October 2009 at 9.30 am and the question of costs reserved.
District Court Review
My powers on applications for review are found in section 38(7) of the MCA. In particular I may inform myself as I think fit and I am not bound by the rules of evidence. I must act in accordance with equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. Further, there is a power to rehear evidence taken before the Magistrates Court should the court determine to do so. Whilst it is not spelt out it seems clear that my powers also include the ability to receive fresh evidence. I received some additional evidence in the form of an affidavit from Ms Nikou and some photographs.
I was initially concerned as to whether I had jurisdiction to hear this matter given that it was not a final judgment and the fact that formal orders had not been made by the learned Magistrate. The definition of judgment in s3 of the MCA is as follows:
“A judgment or decision and includes an Interlocutory Judgment or order”.
Having carefully considered the reasons for decision of the learned Magistrate and the orders made on 28 August 2009 it is my view that the judgment finally disposes of the rights of the parties as to the nature of the fence to be erected and the proportion of costs for construction of the fence. That being the case I consider I do have power to conduct a minor civil review in relation to those two issues.
Ms Nikou’s application does not take issue with the finding as to the appropriate fence but seeks orders as follows:
1. That the respondent bear 100% of the cost of the construction of the fence ordered by the learned Magistrate; and
2. That construction of the fence be completed within 21 days of the date of this order.
It is my view that I have jurisdiction to deal with the first of the orders sought but not the second. If there is an issue as to the time frame for construction of the fence that matter is more properly dealt with by the learned Magistrate. It appears however that the parties are both keen to have the new fence constructed as soon as possible. There is no impediment to this other than the cost issue.
Accordingly, I will deal only with the proportion of the costs of construction of the fence.
Background
The parties live in adjoining properties. Mr Phillipson determined to demolish his house and to construct a new house. As part of that process he also wished to remove and replace the existing fence between the properties. The existing fence was partly galvanised steel and partly brush. There is some dispute about its condition.
On 9 May 2009 Ms Nikou signed a piece of paper acknowledging that Mr Phillipson had her permission to take down the fence. There is some dispute as to an agreement that Ms Nikou says was reached before signing that document.
The fence was demolished on or about 15 May 2009, the parties were unable to reach agreement as to the type and costs associated with the erection of the new fence. Ms Nikou issued an application in the Magistrates Court on 23 July 2009.
Hearing Before Me
It was plain that both parties are reconciled to the order requiring a Good Neighbour fence although Ms Nikou does not consider it to be as aesthetically pleasing as some alternatives and Mr Phillipson considers it to be a more costly option than a post and rail fence of the type he is erecting on other boundaries. I consider that this is a sensible position for both parties. It is my view that the findings made by the learned Magistrate on that topic were open to him on the evidence. I would have been unlikely to displace them given that he undertook a view of the site and was in a superior position to consider that issue.
The sole issue was the contribution to the cost. Mr Phillipson contends that the learned Magistrate’s orders should be confirmed and Ms Nikou seeks orders that Mr Phillipson pay the whole cost of the fence.
Applicant’s case
Ms Nikou contends that the order she bear 50% of the cost of the fence is unjust, unreasonable and contrary to sections 12(6) and 12(7) of the Fences Act 1975 (the Act). Those sections provide as follows:
(6) Subject to subsection (7) of this section, any dispute as to the relative proportion in which the cost of fencing work is to be borne as between adjoining owners shall be determined according to the benefit that each of the adjoining owners derives from the performance of the fencing work, and, in the absence of proof to the contrary it shall be presumed that the adjoining owners derive equal benefit from the performance of the fencing work.
(7) If fencing work consists in the erection of an adequate fence or a fence of better quality than an adequate fence, or the conversion of an existing fence into an adequate fence or a fence of better quality than an adequate fence, then, in the absence of agreement between the adjoining owners, the contribution for which an adjoining owner is liable shall be one half of the minimum cost of erecting an adequate fence, or converting the existing fence into an adequate fence.
Ms Nikou argues that the use of the word “conversion” of an existing fence into an adequate fence in section 12(7) of the Act implies that the existing fence required some alteration to become an adequate fence. She contends that the existing fence was in good condition and that reason for removal of the fence was the fact that Mr Phillipson’s development plans required the erection of a retaining wall on the boundary. Ms Nikou further argues that the weight of evidence before the learned Magistrate was that there was an agreement that she would pay only $300 towards the cost of replacing the fence with a fence of similar style and that the learned Magistrate made no finding as to whether there was an existing agreement between the parties as envisioned by section 12(7).
Ms Nikou says that in conversation in late April 2009 Mr Phillipson told her that he wished to take down the common fence. She says she was reluctant to agree to this as the fence was in good condition and the process was likely to cause inconvenience and exposure. After some discussion she says that it was agreed that the fence could be removed provided it was replaced with a fence of the same type and quality. Ms Nikou says she agreed to contribute the sum of $300.00. She says that she only gave that permission to remove the fence in light of that verbal agreement.
Finally, Ms Nikou argues that the presumption in section 12(6) of the Act that adjoining owners derive equal benefit from the performance of the fencing work was displaced. She contends that the Good Neighbour fence is of a lesser aesthetic benefit to her and that the cost of the Good Neighbour fence is a significantly greater financial benefit to Mr Phillipson than other fencing options.
Respondent’s case
Mr Phillipson disputes that there was an agreement that Ms Nikou pay $300 towards the construction of a new fence. He says that they discussed a resolution that included that he would pay the cost of materials only and would construct the fence himself. The cost of the brush section was to be shared equally and was estimated to be around $300 each. It was subsequently discovered that council regulations prevented the construction of a brush fence and subsequent disagreements as to the method of construction of the new fence ensued.
Mr Phillipson also disputes that the existing fence was in good repair. He says that the learned Magistrate attended a view. He further pointed to photographs that he said showed the fence to be in poor condition.
Mr Phillipson says that Ms Nikou agreed to the existing fence being taken down. She was notified of the need for this by him, and by the council on two occasions through the planning process for his new house. He says that he has maintained throughout the proceedings, including his Form 1 Notice of Intention to Erect a Fence, that the parties should pay half the cost of the fence. Both parties will obtain equal benefit from the new fence and in his view it is fair that the learned Magistrate’s order be confirmed.
Conclusion
I have carefully considered the reasons for the learned magistrate’s decision and the parties’ written and oral submissions. Ms Nikou contends that the existing fence was adequate and that the learned Magistrate failed to make a finding as to its adequacy. Mr Phillipson says that the fence was plainly inadequate and in a poor condition.
I do not consider that the learned Magistrate was required to make a finding about the adequacy of the existing fence. Ms Nikou’s submission is based upon Section 12(7) of the Act and specifically her contention that the learned Magistrate had to consider the “conversion of” an existing fence into an adequate fence. That submission overlooks the fact that section 12(7) also deals with the “erection of” an adequate fence. The Macquarie Dictionary defines “convert” as follows:
to change into something of different form or properties; transmute; transform.
This situation was not a situation where the existing fence was to be transformed or altered. Regardless of the adequacy or otherwise of the existing fence, a new fence was plainly required once Mr Phillipson obtained planning approval to build his new house. That approval meant first, that a new retaining wall was required and second, that the brush fencing had to be replaced under council regulations. Accordingly the question to be determined by the learned Magistrate related to the erection of an adequate fence rather than conversion of an existing fence.
The learned Magistrate turned his mind to the issue of adequacy as required under section 12(8)(a) when considering the issue of the new fence to be constructed. In particular he had regard to general standards of good fencing in the Panorama area and the suitability of the proposed fence for use in a back yard. He made a finding, which is not disputed before me, that the Good Neighbour fence was an adequate, or appropriate, fence.
The learned Magistrate did not make an explicit finding as to whether the parties reached an agreement as to contribution. I do not consider that they did. I accept Mr Phillipson’s contention that any agreement as to the payment of $300 was subject to other conditions. That this was the case appears clear from Ms Nikou’s affidavit sworn on 23 July 2009 where she stated:
The defendant assured us that the fence would be replaced with a fence of the same type and quality so I verbally agreed that I would give permission for the removal of the fence provided that it was replaced with a fence of the same type and quality (“the verbal agreement”). Being of the assumption that the fence was to be professionally build I agreed that I would contribute e the sum of $300 towards the brush fencing. This sum was mutually agreed upon.[1]
[1] Paragraph 5
The condition that the fence be replaced, in part, by brush fencing could not be met due to council regulations. Accordingly that agreement could not proceed and the parties have plainly failed to reach a further agreement. In those circumstances the learned Magistrate correctly applied the provisions of section 12(7) in finding that each party bear 50% of the cost of erecting the Good Neighbour fence. The provisions of section 12(6) are subject to section 12(7) and therefore the issue of the respective benefits accruing to the parties by reason of the erection of the fence is irrelevant.
In summary therefore I dismiss the application for review and I affirm the judgment and orders made by the learned Magistrate dated 28 August 2009.