Richard Pitt & Sons Pty Ltd v Gellibrand
[1990] TASSC 79
•17 January 1990
Serial No B2/1990
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Richard Pitt & Sons Pty Ltd v Gellibrand [1990] TASSC 79; B2/1990
PARTIES: RICHARD PITT & SONS PTY LTD
v
GELLIBRAND, Helen MacCullum
GELLIBRAND, Vanessa May
FILE NO/S: M417/1989
DELIVERED ON: 17 January 1990
JUDGMENT OF: Nettlefold J
Judgment Number: B2/1990
Number of paragraphs: 29
Serial No B2/1990
List "B"
File No M417/1989
RICHARD PITT & SONS PTY LTD
v HELEN MacCULLUM GELLIBRAND
AND VANESSA MAY GELLIBRAND
REASONS FOR JUDGMENT NETTLEFOLD J
17 January 1990
Vendor – Purchaser Summons for resolution of the following questions arising out of or connected with a contract between the applicant as purchaser and the respondents as vendors:
"1As to whether the final subdivision plan which the respondents have lodged with the Land Titles Office ('the Respondents' Plan') is or is not in accordance with the Respondents' obligations under the contract in the following particulars :
A SOUTH EAST BOUNDARY
Whether the Respondents' Plan so far as relates to the South East Boundary is in accordance with the plan attached to the contract and the Respondents' obligations under the contract or whether the final subdivision plan should be in accordance with a plan and written report by registered surveyor T N Woolford dated 18th April 1989.
B NORTH EAST BOUNDARY
Whether the Respondents' Plan so far as relates to the North East Boundary is in accordance with the plan attached to the contract and the Respondents' obligations under the contract or whether the final subdivision plan should be in accordance with a plan and written report of registered surveyor T N Woolford dated 2nd June 1989."
On 16 July 1987 the applicant purchased the land the subject of this dispute at an auction. The land purchased was to be subdivided out of the respondents' property known as "Lachlan Vale", Ouse. Immediately after the auction a director of the applicant was required to sign the Conditions of Sale with plan annexed.
The respondents are proceeding with registration of a plan of survey in purported compliance with their obligations under the contract of sale but the applicant contends that there are two significant discrepancies between the sale plan and the plan of survey being registered by the respondents. Hence these questions.
The land to be sold was described in the Conditions of Sale as "All that piece of land shown approximately on the attached proposal plan and surrounded by red boundary lines the exact dimensions of which are to be determined by actual survey the same forming portion of the property known as 'Lachlan Vale' at Ouse".
The "attached proposal plan" carries in its heading data, some of which is relevant to the resolution of this dispute. The portions of the heading to which reference is made are "Proposed subdivision", "All measurements subject to final survey", "Scale 1:7,500".
The respondents' surveyor Mr Leary stated in his affidavit that the plan attached to the Conditions of Sale was a proposed subdivision plan with all measurements subject to final survey. His affidavit continues with the following words:
"This is because the subdivision in principal (sic) had to be approved by the relevant Council and it would not be cost efficient to do a final survey accurately detailing all measurements and angles until such approval was obtained owing to the fact that the Council may require alterations or additions or even disallow the subdivision."
The applicant's surveyor, Mr Woolford during cross–examination agreed that the plan was headed "Proposed Subdivision" and accepted that such an initial plan does not have the same "accuracy" as a final plan which was to be a title plan. He agreed that in practice you prepare a proposed subdivision plan to get the reaction of the Council to the subdivision proposal.
It is helpful to trace the history of the proposal plan, in so far as it relates to the disputed boundaries, then to trace the history of the final plan in relation to those boundaries.
The first respondent met Mr Leary and the real estate agent, Mr Hand on the property on 19 May 1987. The first respondent requested Mr Leary to draw up a proposed subdivision plan of approximately 220 hectares of the property for sale by auction.
Together with the first respondent and Mr Hand, Mr Leary drove around the property identifying the boundaries of the land to be sold. The proposed subdivision plan was drawn from the instructions received at that meeting. The proposed subdivision plan was derived from the plan shown on the Certificate of Title to "Lachlan Vale" and Lands Department aerial photograph numbered 1043–161 M595. Mr Leary marked out the agreed boundaries on the aerial photograph. He then scaled down these boundaries to the same scale as the title plan and superimposed the boundaries on to a copy of the title plan.
Unfortunately, this process of producing a proposed subdivision plan resulted in two errors namely:
1The site of the pump house is incorrectly shown. That came about because the title plan did not depict accurately the pipeline easement in the vicinity of the location of the pump house and thus shows the pump house to be to the west of the boundary line rather than to the east of the boundary line.
2The north–western point of the land, point "C" on the proposed subdivision plan, was located on the ground at the inspection on 19 May 1987 and its general position evidenced by markings made on nearby trees. The line C – B on that plan was also evidenced by markings in the close vicinity of that line. The point "A" shown on the plan was established by a line from "B" touching the corner of the reservoir site and then through to the existing fence line shown on the proposed subdivision plan. But, when the located, agreed and roughly identified point "C" was positioned on the aerial photograph it was incorrectly positioned. That was an understandable error because that north–west boundary is an open boundary and locating "C" on the aerial photograph was very difficult because the boundary went through a wooded area with no physical features on the land near to agreed and roughly located point "C" which was apparent on looking at the aerial photograph. Once that error was made the process of scaling down from the aerial photograph markings to the proposed subdivision plan markings produced an error in relation to the position of point "C", an "error" because the surveyor's instructions, made tolerably clear physically on the ground, were erroneously expressed in the proposed subdivision plan.
There appears to be some conflict between the evidence of Mr Hand and that of Mr Leary concerning the first respondent's instructions to Mr Leary on the subject of the hedge, whether it was to remain part of the respondents' property or was to be part of the property to be sold. On that point I accept Mr Leary's evidence. From the day of the inspection his instructions were that the respondents were to retain ownership of the hedge. Hence the boundary was to be to the west of the hedge. Mr Leary's instructions were that the south–eastern boundary running from the River Derwent was to be a straight or nearly straight line following the existing fence, the pump house being to the east of the boundary. It will be noted that the proposed subdivision plan has the abbreviated form of the word "fence", ie "FCE", written beside this line. The "O SH Nail in post" shown at the south–eastern end of a line said to be 282.67 metres and shown on Mr Woolford's drawing 9041–1 was not chosen as the end of that disputed boundary running roughly north from the River Derwent. That nail in a post was never intended to show a boundary terminus. The measurement 282.67 metres taken from draft preliminary plan P2 was in fact incorrect. The final plan does not show a measurement of 282.67 metres although the draft plan did. But, before the final plan was completed, a check of field notes disclosed that the true distance was 289.67 metres.
In fact the "O SH Nail in post" represented a reference point to ascertaining, among other things, the eastern boundary of the right of way 7 metres away which was also the point where the boundary measuring 289.67 metres and the boundary line running to the River Derwent intersected.
With the exception of the one point of conflict previously mentioned, Mr Hand's evidence confirms Mr Leary's evidence concerning the boundaries of the land intended to be auctioned by Mr Hand's company.
After Council approval of the sale plan was obtained Mr Leary did a final survey of the land, a copy of which appears as exhibit "B" to Mr Woolford's affidavit. To fix the northern point of the boundary shown on that plan as 198 40' 20" and distance of 256.49 metres Mr Leary adopted the intersection of the eastern side of the right of way and the fence line running in an approximate south easterly direction. To establish the boundary line and the position of the eastern boundary of the right of way Mr Leary placed a spring head nail in a fence post on the fence line as a reference point. He believed the eastern boundary of the right of way to be slightly east of the existing gate post at that point on the property. To confirm the boundaries of the right of way Mr Leary referred to survey diagram 896, annexure "B" to Mr Leary's affidavit. That survey diagram 896 clearly shows a post and wire fence 30 years old running in a south–south westerly direction towards the River Derwent. Mr Leary swears that the northern end of that boundary line dissects the right of way at a point on the eastern edge of the right of way identical to that illustrated on the proposed subdivision plan and the final survey plan.
The points on the ground, referred to in the proposed subdivision plan as A, B, and C, having been located in an approximate way on the inspection on 19 May 1987, were reproduced in the final survey plan in the same positions. Because of the three fixed points the length of these boundaries in the final survey plan reflects what was marked out on the ground on 19 May 1987. The final passage in the transcript of Mr Leary's evidence reads as follows:
"QThe final survey plan that you presented for the titles to issue did that accord with your instructions from the respondents?
AYes. It followed the line that we marked out on the ground on that original site meeting with Mr Hand and Miss Gellibrand.
QYes. And it accords with what was shown on the proposed subdivision plan which became the sale plan?
AYes."
But the Applicant's surveyor, Mr Woolford strongly joins issue with that last answer. He makes the following points:
1He contends that the proposed subdivision plan shows the hedge on the western side of the boundary and not the eastern side of the boundary as alleged by Mr Leary.
2He contends that the proposed subdivision plan shows the pump house at least 100 metres to the west of the boundary but Mr Leary places it to the east of the boundary.
3That, taking a purely objective approach to the interpretation of the proposed subdivision plan, the north–east boundary in the final survey should be of a length which reflects the proportion between the line A – B on the plan which is part of exhibit D to his affidavit and the total distance from point A on that plan to the Lyell Highway.
4He contends that the angle at point "C" on his plan which is part of exhibit D to his affidavit is greater by about 11o 45' on the final survey plan compared with the proposed subdivision plan.
5Consequently, on the final survey plan being registered by the respondents, the north–western boundary is short by about 50 metres, the line which corresponds with line C – B on the proposed subdivision plan is short by about 55 metres and the line B – A is short by about 25 metres.
6Consequently, for these reasons, he produces two plans showing proposed amendments to the final survey plan which appear as part of exhibits C and D to his affidavit.
The cross–examination of Mr Woolford on his assertion that the proposed subdivision plan shows the hedge to the west of the true boundary shows that the rough indications on the proposed subdivision plan of the intended position of the hedge in relation to the final boundary are more ambiguous than Mr Woolford suggests.
Mr Woolford agreed that there was an error in the proposed subdivision plan in relation to the location of the pump house, an error which was obvious to him.
Mr Woolford's approach in fixing what he alleges should be the south–eastern boundary in the final survey plan is made clear by the following passage in the cross–examination:
"QSo, in fact you've rejected an existing fence that is shown in the sale plan where it says 'FCE', you've rejected that?
AYes.
QAnd you've picked up a piece of fence which is shown at the point where the hedge runs up that part of the boundary?
AThat's correct, yes.
QWhy did you do that when the sale plan said 'FCE'?
AWell, as I said previously it was just a matter of assessing the sale plan and the features on the ground, the hedge, the pump house and the fence and there was no way – you can't satisfy the three things that are shown in the sale plan so it had to be a compromise."
Earlier in the cross–examination he was pressed about this fence shown in the proposed subdivision plan and he said, "Well, it's a feature. As I just stated I assessed the three features that are shown on the sale plan – you couldn't get an agreement to agree with the three of them and so I – the two dominant ones which is a hedge and a pump house I accepted the two."
Discussing his method of fixing the north–eastern boundary of the land during cross–examination Mr Woolford said, "If you don't know those (referring to the physical position on the ground of each of the points A, B, and C on the proposed subdivision plan) then you've got to take the cruder method of doing apportionment exercises in relation to various points on the sale plan."
It will be noted that the applicant has chosen, apparently with the acquiescence of the respondents, to frame the questions concerning the disputed boundaries so as, in effect, to seek a choice between the final survey plan of Mr Leary on the one hand, and that final survey plan amended as indicated in Mr Woolford's plans on the other. No half way house is contemplated.
My conclusion is that Mr Leary's final survey plan should be accepted and Mr Woolford's proposed amendments rejected.
The argument for the applicant correctly emphasises that we must look for the intention of the parties to the contract expressed in the words of the contract and the plan attached to it. It is not a matter of looking for the subjective intention of the respondents concerning the relevant boundaries. It is an objective question which must be answered and one which relates to the common intention of the parties to be ascertained by construing the contract.
The "attached proposal plan" is correctly emphasised by the applicant as the primary source. But the argument of the applicant proceeds as if "the attached proposal plan" was an attached, completed and final plan. But both the surveyors agree, in effect, that there is a deal of difference in practice between a completed and final plan and a proposal plan with all measurements subject to final survey.
Mr Woolford's approach to the question which arises in relation to each disputed boundary unrealistically ignores the history of the proposal plan and final plan and the physical indications on the ground of what the proposal plan is indicating in a general way without measured distances or measured angles which relate to the disputed boundaries. If his argument about the north–eastern boundary was accepted it would, in effect, give the applicant the advantage of an understandable error in the locating of point "C" on the aerial photograph. That would not be a just result and it is not a result which the law requires. The law does not require an exclusive reliance on the "crude" proportionality concept which Mr Woolford propounds. It is a proposal plan and not a final plan. Like all contracts this contract falls to be considered not in a vacuum but in an established context and in the light of a known history.
In relation to the south–eastern boundary again there is an excessive reliance on an objective approach. A very important indication of the boundary there is the straight line running roughly north from the River Derwent with "FCE" written beside it. Mr Woolford gives no weight to that indicator at all. He treats the indications on the proposal plan of the position of the hedge in relation to the disputed boundary as clear when the cross–examination shows that, considered in a detached way, those indications are ambiguous. He relied greatly on those ambiguous indications and on the location of the pump house on the proposal plan despite the fact that he concedes that the pump house is located on the proposal plan erroneously. His adoption of these indicators and his rejection of the fence indicator is made in vacuo ignoring the obvious fact that in preparing the proposed subdivision plan Mr Leary was guided by his instructions. There is no rule of law which requires one, when considering what Mr Leary indicated on the proposed subdivision plan, to ignore what he set out to indicate on that plan. That must be so in the case of a proposal plan like this one which is so, understandably lacking in clear details.
For these reasons the questions in the summons are answered as follows:
1 A Yes.
1 B Yes.
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