Roennfeldt v Wyness - [2022] SASC 95

Supreme Court of South Australia
(Magistrates Appeal: Civil)
ROENNFELDT & ANOR v WYNESS & ANOR
[2022] SASC 95
Judgment of the Honourable Justice Parker
2 September 2022
MAGISTRATES – APPEAL AND REVIEW – SOUTH AUSTRALIA – APPEAL TO SUPREME COURT
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENT AND ORDERS – GENERALLY – REASONS FOR JUDGMENT – ADEQUACY OF REASONS
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – FENCES AND FENCING – REPAIR OF FENCE
This is an appeal against a decision of a Magistrate dismissing proceedings in negligence but making orders under the Fences Act 1975 (SA).
The parties are neighbours whose properties abut at their rear. Each made extensive aesthetic improvements to their side of the fence. The respondents also built raised wooden decking and a privacy screen separate to the fence but with the effect of raising its height. The appellants, dissatisfied with the effect of the screen, obtained development approval to increase the height of the fence to conceal it.
At some point thereafter, the fence began to deflect towards the appellants’ property. The matter proceeded to trial in the Civil (General Claims) Division of the Magistrates Court with each party seeking to advance claims of negligence on the part of the other. However, it became apparent that neither party were at fault, and both claims were dismissed. The Magistrate went on to find that the fence was not an adequate fence within the meaning of s 12 of the Fences Act.
Mr Magryn, the appellants’ expert, proposed to rectify the existing fence by underpinning and remediating it. Mr Deek, the respondents’ expert, expressed the view that nothing less than a new fence was required, and opposed rectification because it involved incorporation or attachment to inadequate elements of the fence and was not freestanding. While Mr Magryn amended his proposal to address Mr Deek’s concerns, Mr Deek was not asked to express an opinion on the new proposal.
The Magistrate, noting the issues of access to the fence as well as the costs of each proposal, agreed with Mr Deek that the rectification proposal was demonstrably inadequate and ordered that a new fence be constructed, with the cost to be borne equally by the parties.
The appellants appeal against this decision on the basis that the Magistrate: first, failed to give adequate reasons for her decision; secondly, should have found that the rectification proposal was feasible and a more desirable solution; thirdly, erred by finding that the new fence was an appropriate fence; and fourthly, erred by concluding that underpinning could not be ordered.
On appeal, the parties agreed that the matter should be disposed of in the Supreme Court upon the hearing of further evidence from Mr Deek and Mr Magryn.
Held, per Parker J, dismissing the appeal on Ground 6 but upholding Grounds 1(a), 1(b), 2, 3, 4, 5(a), 5(b), 7(a) and 7(b):
1. In respect of Grounds 1(a), 2 and 3, the Magistrate erred by preferring the evidence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roennfeldt v Wyness

Details

AGLC: Roennfeldt v Wyness [2022] SASC 95
Case: [2022] SASC 95
Decision Date: 2 September 2022

CaseChat Overview and Summary

In the case of Roennfeldt v Wyness, the South Australian Supreme Court considered an appeal from a decision made by a Magistrate regarding a dispute over the adequacy and repair of a fence between two neighbouring properties. The central issue in the case was the appropriateness of the fence and the method of its repair. The respondents sought to have the existing fence replaced with a new Colorbond fence, while the appellants argued for underpinning the existing fence to address its structural deficiencies.

The court was required to determine whether the Magistrate had erred in dismissing the underpinning proposal put forward by the appellants' expert, Mr Magryn. This involved assessing whether the Magistrate had provided adequate reasons for rejecting the underpinning proposal and whether she had correctly assessed the feasibility of this proposal. The court also needed to consider whether the Magistrate had adequately addressed the competing merits of the two proposed solutions for the fence, and if she had appropriately accepted the evidence of the appellants' expert.

The Supreme Court found that the Magistrate had erred in several respects. Firstly, the court held that the Magistrate had failed to properly consider and address the underpinning proposal put forward by Mr Magryn. The court found that the Magistrate had not given adequate reasons for rejecting this proposal and had failed to assess its feasibility. The court noted that the underpinning proposal was a viable solution that could address the structural deficiencies of the existing fence. Additionally, the court found that the Magistrate had not adequately considered the aesthetic and practical drawbacks of the proposed Colorbond fence. The court concluded that the underpinning proposal was the preferable solution and that the Magistrate's rejection of this proposal was an error of law.

Consequently, the Supreme Court upheld several grounds of appeal, including those related to the adequacy of the reasons provided by the Magistrate and the failure to consider the underpinning proposal. The court ordered that the fence between the parties' properties be remediated in accordance with the underpinning proposal developed by Mr Magryn, with specific modifications to the excavation depth of the footings and the substitution of certain materials. The court also directed that the costs of the remediation works be borne equally by the parties. The case underscores the importance of providing adequate reasons for judicial decisions, particularly when rejecting expert evidence, and highlights the necessity for courts to carefully consider and weigh competing expert opinions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I have noted at [91] that the quote for the cost of a new Colorbond fence taken into account by the Magistrate was incorrectly based upon the cost of a fence 1.8 m in height. However, because of the height difference between the properties, for a fence to be 1.85 m high from the respondents’ side (as ordered by the Magistrate) it needed to be 2.4 m on the appellants’ side. Thus, if a Colorbond fence was to be erected, it needed to be at the maximum available height of 2.1 m and with two layers of concrete sleepers placed below the fence. That would add to the cost. Furthermore, the presence of the sleepers may potentially be regarded as unattractive when viewed from the appellants’ side, at least when compared to the existing fence. In the latter respect, I have already found at [98] that the Magistrate erred by not assessing the competing merits. For that reason, and given the error about height and thus cost, I find that the Magistrate erred by finding that a Good Neighbour Colorbond fence 1.85 m high from the respondents’ side was an appropriate fence. That provided a further basis to uphold Grounds 5(a) and 5(b). Acceptance by the Magistrate of Mr Deek’s evidence The Magistrate supported the third step in her reasoning with the observation that Mr Magryn had not suggested that his remediation proposal was essential to ensure the adequacy and safety of any fence constructed on the site. He had proposed remediation in the context of the appellants’ objection to the current fence being removed and so as to assist the Court. In my view, the primary foundations for the third step in the Magistrate’s reasoning were her Honour’s additional observations that she agreed with Mr Deek that “in view of the history of the matter and for the reasons he has expressed, any rectification proposal that involves adjustments or attachments to existing fence structures which are demonstrably inadequate is not a suitable course”. Although the Magistrate did not specify what aspect of the history of the matter led her to agree with Mr Deek, I infer that her Honour was referring to the history of disagreement between the parties and the relatively protracted nature of the dispute. I understand her Honour’s subsequent reference to “the reasons he has expressed” to relate to Mr Deek’s views as summarised at [28] in the judgment. At [28], the Magistrate recorded Mr Deek’s opinion that “any rectification proposal that includes incorporation or attachment to existing, inadequate elements of the fence, namely, the posts, ‘is not considered an acceptable and long-term solution’”. Her Honour also noted that Mr Deek considered “that a free-standing fence should stand on its own, and not rely on being attached to other elements, which may be disconnected.” In that respect, her Honour noted that the northern end of the fence was attached to the respondents’ brick garage.[14][14] I was informed by both counsel that the garage is actually located on the property of a neighbour, i.e. a third party to these proceedings.

Decision

Reasons for decision

For the preceding reasons, I find that the Magistrate should have found that the underpinning proposed by Mr Magryn was possible and the preferable solution. I uphold Ground 4. Conclusion I order as follows:1.I uphold Grounds 1(a), 1(b), 2, 3, 4, 5(a), 5(b), 7(a) and 7(b) in the Notice of Appeal. 2.I dismiss Ground 6 in the Notice of Appeal.3.The parties are to take all necessary steps to ensure that the fence between their respective properties is remediated as soon as is reasonably practicable in accordance with the Scope of Works and associated documents comprising the proposal numbered 16300 prepared by Magryn Engineering Consultants dated May 2020 save and except that:(a)The five new footings are to be excavated to a depth of 1.65 m rather than 1.5m as presently specified; and(b)Galvanised steel beams with equivalent performance characteristics are to be substituted for the presently specified 90 x 45 MGP12 beams. 4.The parties are each to take such steps as may be necessary to grant access between the hours of 9am to 6pm on Monday to Friday each week to Complete Underpinning and its members, employees and contractors, including any vehicle or equipment, that is reasonably required for the purposes of carrying out the work referred to in Order 3. 5.The costs of complying with Order 3 are to be borne equally by the parties. 6.The parties are at liberty to apply to the Court for any consequential or related orders.7.I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The respondents submit that Ground 7(b) is in substance identical to Ground 1(b) and should also be dismissed. Consideration At the time the two experts, Mr Magryn and Mr Deek, conducted their inspection of the fence on 12 May 2020, they measured a maximum deflection at the top of the fence of 100mm. They also established by reference to an invoice produced by the first appellant that the thickness of the steel in the fence posts was not adequate. Earlier inspections had also established that the concrete footings were of insufficient depth and width and that the concrete was of poor quality. My understanding of the evidence is that due to the inadequacy of the footings the degree of the deflection will increase over time unless appropriate action is taken. For these reasons, the Magistrate found that the fence was not an adequate fence within the meaning of s 12(8)(a) of the Fences Act. That finding has not been challenged in this appeal. The essential issue to be decided by the Magistrate was what action should be taken in response to the finding that the fence was not adequate. While Mr Magryn originally proposed a relatively minimalist rectification solution, he ultimately accepted that this proposal was not viable due to the inadequacy of the footings. He then developed an alternative remediation proposal. However, Mr Magryn did not develop this proposal until after he had completed his initial evidence and Mr Deek had completed his evidence. After the two experts had given evidence, the Magistrate directed that they were to conduct a joint inspection and to prepare a joint report setting out their respective views. Mr Deek declined to offer any comment in the joint expert report upon the revised proposal developed by Mr Magryn. In his opinion, the Magistrate had only required his comments upon the proposal referred to by Mr Magryn in his evidence and not the subsequent revised proposal. Although the Magistrate stated that she wished to hear further evidence from Mr Magryn about his revised proposal, and he was recalled, Mr Deek was not recalled. Thus, Mr Deek did not express any opinion in his evidence about the feasibility of Mr Magryn’s new proposal. The Magistrate was left “in the dark” on that issue. Grounds 1 and 2 of the Notice of Appeal contend that the Magistrate made an error of law by failing to give adequate reasons for her decision. Ground 3 raises a similar issue in that it complains about a failure to make findings as to the feasibility of underpinning as proposed by Mr Magryn. In Kirkland v The Queen, Lovell J examined the principles that are to be applied when determining whether a judge’s reasons are adequate.[5] His Honour noted that reasons are necessary so that an appellant court can discharge its statutory duty on appeal and also so that the parties can understand the basis of the decision. His Honour then stated:[6] [5] [2021] SASCA 14.[6] Ibid, [177]-[182].177As the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the matter the subject of the decision, it is not possible for an appellate court to state, other than at a level of generality, rules to guide trial judges as to what will amount to adequate reasons. Clearly the requirement for adequate reasons depends upon the circumstances of the case and the issues that fall to be decided. That said the cases establish some general principles that trial judges should bear in mind. 178The reasons must identify the relevant principles of law, refer to the relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings. The judge must provide explanations for his or her ultimate conclusions. It is not necessary for a judge to resolve every argument and issue that might arise during a trial. Nor is it necessary for a trial judge to set out and discuss all of the evidence called during the trial. Indeed, a recitation of the evidence followed by findings, without more, would not amount to adequate reasons. A judge is not required to give himself or herself all the legal directions that may be required if the trial was by jury. 179A trial judge should bear in mind that the test of adequate reasons will not be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict. 180Thus, what is required is that the trial judge expose his or her reasoning on points critical to the contest between the parties. If a judge rejects relevant and cogent evidence he or she should provide an explanation for so doing. If the parties produce conflicting evidence on a significant matter, the evidence should be set out and reasons provided for accepting or rejecting the evidence.181While a trial judge does not have to deal with every argument that arises at trial, any important argument should be acknowledged and if rejected, reasons given for the rejection.182However, a trial judge should bear in mind that reasons are not necessarily adequate simply because they reveal a chain of reasoning leading to a conclusion. A conclusion is not to be drawn from a collection of convenient facts that lead inevitably to that particular result. What is required is a careful assessment of all relevant facts and, where necessary, an explanation given as to how the ‘inconvenient’ facts can be put to one side or given little weight.[Citations omitted]