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 Mr Deek without him having given evidence upon Mr Magryn’s proposal.
2.      In respect of Ground 4, the Magistrate should have found that the rectification proposed by Mr Magryn was possible and the preferable solution.
3.      In respect of Grounds 1(b), 5(a) and 5(b), the Magistrate failed to give adequate reasons for declining to order rectification, and instead ordering the installation of a new fence, by not referring to and balancing certain matters favourable to the rectification proposal.
4. In respect of Ground 6, the Magistrate did not err in finding that rectification would result in a fence of better quality than an adequate fence on the basis that s 12(7) relates only to an order for a new fence. That section expressly includes the words ‘or the conversion’ which contemplate the rectification, modification, or repair of an inadequate fence.
5. In respect of Ground 7(a), the Magistrate erred in holding that she could not order deconstruction of the respondent’s deck to enable the rectification work. Her Honour was empowered to do so under ss 12(2)(a) and (b) of the Fences Act.
6.      In respect of Ground 7(b), the Magistrate failed to give adequate reasons for her decision that the erection of the new fence should be undertaken from the appellants’ property rather than the respondents’ side.
7.      The parties are to take all necessary steps to ensure that the fence between their respective properties is remediated in accordance with the rectification proposal, with the cost to be borne equally by the parties.
Fences Act 1975 (SA) ss 8, 12, 18; Magistrates Court Act 1991 (SA) s 40; Planning, Development and Infrastructure Act 2016 (SA) s 118, referred to.
Fox v Percy (2003) 214 CLR 118; Kirkland v The Queen [2021] SASCA 14; Wyness v Roennfeldt [2021] SAMC 59; State of South Australia v Dolan [2021] SASCFC 30, considered.

ROENNFELDT & ANOR v WYNESS & ANOR
[2022] SASC 95
Magistrates Appeal
PARKER J:
Introduction

This is an appeal from a decision of a Magistrate. The Magistrate dismissed proceedings in negligence but made orders under the Fences Act 1975 (SA). Because the action in negligence and the proceedings under the Fences Act were brought in the same claim, the action did not proceed in the Magistrates Court as a minor civil action as is ordinarily required for proceedings under the Fences Act. As the trial was conducted in the Civil (General Claims) Division, there was a right of appeal to this Court under s 40 of the Magistrates Court Act 1991 (SA) rather than a right to seek review by the District Court under s 38(6) of that Act.
The grounds of appeal
The appellants appeal on the following grounds:
1.   The Magistrate erred in failing to give adequate reasons for her decision, including in particular as to:
(a)the differences between Mr Magryn and Mr Deek as experts including as to whether it was feasible to rectify the existing fence through underpinning;
(b)why the appellants’ concerns that a new Colorbond fence with new footings would result in damage to their garden bed and loss of amenity of a rendered fence was of less importance than the applicants’ concerns about the temporary removal of some decking boards to give access to the alternative option of underpinning the existing fence.
2.   The Magistrate erred in failing to give adequate reasons for her finding in the last sentence of paragraph [30] of her reasons.
3.   The Magistrate erred in failing to make findings as to whether underpinning was a feasible solution from an engineering perspective. The finding in the last sentence of paragraph [30] did not deal with the evidence of Mr Magryn as to why underpinning was a feasible solution and why the concerns raised by Mr Deek could all be overcome.
4.   The Magistrate ought to have found that underpinning was both possible from an engineering perspective and the more desirable solution.
5.   The Magistrate erred in finding that a Colorbond ‘good neighbour fence’ of 1.85m high from the applicants’ side was an appropriate fence as:
(a)Such a fence when regard is had to the costs of demolition of existing fence and installation of new footings costs more than underpinning the existing fence but will result in a significant loss of amenity for the appellants as well as damage to their planter box;
(b)The applicants (respondents on appeal) had not submitted any evidence as to the costs of such a fence. The Slade quotation referred to by the Magistrate at [25] was for a fence of 1.8 height in total, but to get a fence with a height of 1.85m from the applicant’s side required a fence height of 2.5m. The Slade quotation was not for a 2.5m high fence and did not include footings for a 2.5m high fence.
6. The Magistrate erred in finding that underpinning could not be ordered as this would result in a fence of ‘better quality than an adequate fence’ (s12(7) of the Fences Act). Section 12(7) relates to an order for a new fence, whereas s12(2)(b) did authorise the Magistrate to make orders for the repair of the existing fence.
7.   The Magistrate erred in finding that there was no basis on which the Court order underpinning to be performed which would require the temporary removal of some of the applicant’s decking as:
(a)As a matter of law the Court has the power under s12(2)(a), (j) and (l) to make such orders; and
(b)If orders were to be made for the demolition of the existing fence and erection of a new fence with new footings then work would need to be done from the appellants side of the fence with damage to their planter box and mature plants. The Magistrate gave no reasons as to why this would be a preferable course than temporary work to on the applicants’ side.
The Fences Act 1975 (SA)
The following provisions of the Fences Act are relevant to this appeal:
12—Powers of court
(1) Where any difference or dispute arises in relation to fencing work, or any liability arising under this Act, any person affected by the difference or dispute may by application to the court seek a determination of the matter.
(2) Upon the hearing of an application under subsection (1) of this section the court may determine the matter in such manner as it considers just and may—
(a)     make any finding, determination or order in relation to the erection of a fence, the nature of the fence to be erected, the line of fence to be adopted and the amount of compensation (if any) to be paid for loss of occupation of land as a result of the erection of a fence otherwise than upon the boundary of contiguous land; and
(b)     make any finding, determination or order in relation to the performance of replacement, repair or maintenance work in relation to a dividing fence; and
(c)     determine the person or persons by whom any fencing work is to be performed, and where it is to be performed by different persons, the part of the work to be performed by each; and
(d)     re-open and correct or vary any agreement arrived at under this Act (including an agreement that is, by virtue of section 7 of this Act, deemed to have been made) upon such terms as the court considers just; and
(e)     re-consider and vary upon such terms as the court considers just an order under section 9 or section 10 of this Act; and
(f)      determine the time at which fencing work is to be performed and the manner of its performance; and
(g)     make any order that may be necessary or expedient in relation to entry upon or access to land for the purposes of performing fencing work; and
(h)     order the removal of a fence or any portion of a fence not erected upon the proper boundary; and
(i)      determine the cost of fencing work and the persons by whom and the proportions in which the cost is to be borne; and
(j)      make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of fencing work; and
(k)     determine, and order payment of, compensation for any damage for which compensation is payable under this Act, or any other Act or law; and
(l)      make such order for costs as the court considers just.
…
(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.
(8) For the purposes of this section—
(aa)    in the case of a fence dividing land, of not less than 0.8 hectare in area, used for primary production purposes from land used for residential or other purposes—an adequate fence is a fence that is adequate for the primary production purposes or a fence that is adequate for the residential or other purposes, whichever would cost less; and
(a)     in any other case—an adequate fence is a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought; and
(b)     a fence may be an adequate fence notwithstanding that it is discontinuous where any vegetation, watercourse, ditch or other geographical configuration serves as a fence or portion thereof.
…
Background
The appellants, Mr and Mrs Roennfeldt, own and live in a property at Marlborough Street, Brighton. The respondents, Mr and Mrs Wyness, own and live in a neighbouring property located in Seaview Terrace, Brighton.
The respondents have resided in their property since 2010. The appellants bought their property in 2011 and subsequently erected a new home on the land. That was completed in early 2015.
In April 2015, the parties agreed to construct a new Good Neighbour Colorbond boundary fence between their properties. The fence was installed by a contractor and consisted of blue board attached to a metal framework, secured in concrete footings. Soon thereafter, the appellants rendered and painted the blue board on their side of the fence. The respondents removed the blue board from their side and replaced it with a foam material that was subsequently rendered.
The respondents also installed wooden decking between their newly built house and the fence. A spa bath was set into the decking and a brick planter box built adjacent to the fence. The respondents also erected a privacy screen consisting of white metal slats supported on a framework separate from the fence but immediately adjacent to it. The purpose of the screen was to effectively increase the height of the fence as the installation of the decking had, in practice, lowered the fence from the respondents’ side. For that reason, they were concerned about the safety of their children.
The appellants were dissatisfied with the effect of the privacy screen on the amenity of their property. They were concerned that there was considerable reflected sunlight from the screen that restricted their use of the garden at certain times of the day. They also perceived that Mr Wyness would observe them through the slats in the privacy screen. For those reasons, the appellants sought and obtained development approval from the City of Holdfast Bay to increase the height of the fence to 2.5 m so as to shield the privacy screen installed by the respondents.
At some point thereafter it became apparent that the fence was deflecting eastward away from the land of the respondents towards the land of the appellants. The respondents instituted proceedings in negligence in the Magistrates Court in which they pleaded, amongst other matters, that the appellants had acted negligently by providing incorrect details to the Council about the fence footings when they sought approval to increase the height of the fence. The appellants denied that they had been negligent. They contended that the fence was stable. If there was any instability it had been caused by the respondents negligently modifying their side of the fence and undertaking other works on their property. On that basis, the appellants sought remedies pursuant to a counterclaim.
The Magistrate dismissed the action in negligence and also the counterclaim. Those decisions have not been appealed. In essence, the Magistrate found that a contractor was responsible for the defective footings and neither party was aware of that defect. The evidence also did not establish that the actions of the appellants in relation to the increased height of the fence or its surface treatment was negligent. The respondents had also not negligently caused any instability in the fence.
The Magistrate’s reasons concerning the claim under the Fences Act
The Magistrate noted that each of the engineering experts, Mr Magryn for the appellants and Mr Deek for the respondents, was present while the other gave evidence. They subsequently prepared another joint report as directed by her Honour. The Magistrate noted that while in the joint report there was more accord between them than previously, they still disagreed in significant respects. The Magistrate noted that the experts agreed that there was deflection in the fence to the extent and at the locations that had been specified in the joint report. The extent of the deflection towards the east had increased since the installation of the fence. On that basis, her Honour found that the fence was not an adequate fence within the meaning of s 12 of the Fences Act. Both experts also agreed that the footings had not been constructed in accordance with the quote provided by the contractor in April 2015. At least some of the footings were not 300 mm in diameter as recorded by the contractor but were approximately 150 – 200 mm in diameter. The evidence also indicated that all of the footings had most likely not been installed to the quoted depth of 600 – 700 mm. The experts agreed that from an engineering perspective the footings were inadequate, even for the original fence.
The Magistrate noted several areas of disagreement between Mr Magryn and Mr Deek. The Magistrate then stated:[1]
Beyond making findings about those matters about which the experts agree, I consider I am unable to make other conclusive findings about the cause of its current instability. There is little objective evidence about the state of the fence immediately prior to the respondents increasing its height in order to cover the applicants’ screen, which was within a relatively short time frame of between construction in April 2015 and the fence height being increased in November 2015. Both experts have comprehensively explained why they maintain their views, and why they have not altered them even though they have each heard the other’s evidence.
In my opinion, I cannot make conclusive findings that go beyond experts’ agreement that the footings are inadequate for the fence as currently constructed, in terms of their diameters and depths. However, I consider that I do not need to go beyond this finding for the purposes of these proceedings.
[1] Wyness v Roennfeldt [2021] SAMC 59 at [22]-[23].
The Magistrate went on to discuss what action should be taken to deal with the inadequate fence. Mr Deek held the opinion that the fence must be removed and replaced. The respondents opposed any order other than the removal and replacement of the fence. They also objected to any proposal that would involve removing some or all of the decking in order to undertake that rectification work.
The Magistrate noted that the respondents had submitted a quote in the sum of $21,994 for the cost of removing and replacing the fence with one of the same or a similar construction of 1.8 m in height. The quoted price for such a fence of 2.4 m in height was $25,974. The Magistrate also noted that the respondents were willing to accept a 1.8 m high Good Neighbour Colorbond fence in the alternative. They had provided a quote for supply and installation of such a fence in the sum of $1,650 with a further cost of $7,250 for removal of the existing fence on the side of the privacy screen facing the appellants’ property.

The Magistrate further noted that Mr Magryn considered that steps could be taken to rectify the fence so as to stop further movement. Her Honour also observed that both Mr Magryn and Mr Deek agreed that the existing fence posts were inadequate for the original rectification proposal suggested by Mr Magryn.
Under the alternative rectification proposal advanced by Mr Magryn, five alternate posts would be remediated with beams installed along the top of the original fence so as to transfer the load from the tops of the un-remediated posts to the remediated posts. The selected posts would be remediated by welding lengths of steel to them and then set in new concrete footings. This would require that the slat sections of the respondents’ privacy screen and also their decking would need to be temporarily removed to enable the work to be performed. The estimated cost was said to be $16,000 (inclusive of GST) although the Magistrate noted that it was unclear whether this price included the cost of the decking removal. The respondents had obtained a quote of $4,500 for the work involved in lifting the decking and the pool fence.
Mr Deek had expressed the opinion that any rectification proposal that involved incorporation or attachment to existing inadequate elements of the fence, that being the posts, was “not considered an acceptable and safe long-term solution”. He also considered that a freestanding fence should stand on its own and not rely on attachments to other elements which may be disconnected. In that context the Magistrate noted that the northern end of the fence was attached to the respondents’ garage wall.
The Magistrate noted that the appellants did not necessarily agree that anything needed to be done. However, they were prepared to proceed as recommended by Mr Magryn. Although they considered the cost of this proposal to be excessive, it was cheaper than the cost of $30,000 that the respondents had advanced in their claim. The appellants also wished to retain the decorative effect and amenity of the current fence, and were concerned about damage being caused to the mature garden in the bed adjacent to the fence. They had already spent money on the alterations to the fence and the rectification proposal would preserve this work. They considered that the installation of a 1.8 m Good Neighbour fence to be unacceptable as it would have a negative impact on their amenity and the value of their property. They also objected to a fence of that height because of the privacy concerns that had caused them to increase the height of the fence in the first place.
The Magistrate stated the reasons for her decision at [30]. Because the submissions advanced by counsel for the appellants consisted in substantial part of a detailed analysis of that paragraph, it is necessary to set it out in full. Her Honour stated:[2]
The current fence being inadequate, the matter is to be determined by what is an ‘adequate fence’ for the purposes of the Fences Act. An adequate fence is a fence that conforms with general standards of good fencing existing in the local area, taking into consideration how the parties use their land, and the purpose for which the fence is sought. A Colorbond ‘Good Neighbour’ fence is an adequate fence in this case. Indeed, that is what the parties had initially installed, albeit that they also agreed that it would be clad. The fencing work in the form of rectification proposed by the respondents would result in a fence ‘of better quality than an adequate fence’. In view of their opposition, and as rectification would require access to the applicants’ property and deconstruction of the deck, I consider there is no basis upon which I may or ought to compel the applicants to participate in a process that has that result. Mr Magryn does not suggest that the proposed remediation must be done to ensure that any fence constructed on the site is adequate and safe. He offered that remediation proposal in the context of the respondents’ objection to the current fence being removed, and to assist the Court. Indeed, with respect, I agree 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.
[citations omitted].
[2] Wyness v Roennfeldt [2021] SAMC 59 at [30].
The Magistrate then noted that the appellants were entitled to choose to erect a fence of better quality than an adequate fence, but in the absence of agreement with their neighbours, the latter would only be liable to contribute half of the minimum cost of erecting an adequate fence. Her Honour also noted that the parties would be entitled to modify their side of the fence after it was erected provided that did not result in damage, for which they would be liable.
The Magistrate then ordered that the current fence be removed and a Good Neighbour Colorbond fence be erected in the same location. That fence was to have an overall height of 1.85 m on the respondents’ side so as to accommodate the raised timber deck. The fence was to be freestanding and not attached to other elements. As it was not clear on the evidence whether a plinth under the fence was required, the parties should explore that matter further. The costs of demolition and removal of the existing fence and the supply and installation of a new fence were to be borne equally by the parties.
The appellants’ submissions
In broad terms, the appellants raise the following four matters. First, they contend that the Magistrate failed to give adequate reasons for her decision. Secondly, the appellants contend that the Magistrate should have found that underpinning of the fence was feasible and a more desirable solution from an engineering perspective as opposed to the construction of a new fence. Thirdly, they contend that the Magistrate erred by finding that a Good Neighbour Colorbond fence of 1.85 m in height was an appropriate fence. Fourthly, the appellants contend that the Magistrate erred by concluding that underpinning could not be ordered.
Grounds 1 to 3 – failure to give adequate reasons and to make findings
The appellants note that a failure to give adequate reasons constitutes an error of law.[3] The appellants submit that the engineering evidence received at trial was comprehensive, particularly that given by their expert witness, Mr Magryn. The key issue between the parties was whether underpinning and rectification of the fence was a workable solution. If so, the appellants submit that the existing fence as rectified would be an adequate fence and would also provide a cheaper solution. A further engineering issue was the depth of the footings required for any kind of fence and how they might be installed, either for the purpose of rectification or the building of a new fence. Access was a significant issue. There was also a potential issue at trial as to which party was responsible for the problem that had arisen and might therefore be liable for the costs of rectification or installing a new fence. However, the appellants acknowledge that the question of fault is not directly relevant to their appeal.
[3] State of South Australia v Dolan [2021] SASCFC 30.
The appellants submit that the Magistrate did not attempt to reconcile the competing expert evidence given by Mr Magryn and Mr Deek. Her Honour stated that she was unable to make conclusive findings about the cause of the instability of the fence and that she considered it unnecessary to do so. However, the appellants submit that the question of cause may be relevant to the question of solution. Thus, for example, they submit that if the cause of the problem with the fence was the inadequately constructed footings, then a proposal that involved the installation of new footings and strengthening the posts while keeping the fence would provide a better option if it was feasible and cheaper than the removal and replacement of the fence, if all other matters were equal.
The appellants note that although the Magistrate recorded that the expert witnesses and the parties held differing views about what action should be taken, her Honour did not either summarise or decide the competing expert evidence as to why rectification was or was not feasible or possible. The appellants submit that this was necessary to resolve the issue between the parties. Her Honour’s failure to make findings about that question or to explain those findings was an error of law. Rather than make findings as to whether rectification was possible or feasible, the Magistrate merely stated that she agreed with Mr Deek that in view of the history of the matter, a rectification proposal that involved adjustments or attachments to existing fence structures that were demonstrably inadequate was not a suitable course. That statement did not explain whether her Honour preferred the engineering expertise of Mr Deek to that of Mr Magryn, and if so, why. The appellants also submit that the reference by the Magistrate to “the history of the matter” suggests that her Honour’s finding was not based on the engineering issues but rather on some more abstract and arbitrary consideration. The words used by the Magistrate fail to indicate why this finding was made. Of its nature, rectification work involves an adjustment or an attachment to an existing inadequate structure.
The rectification methodology proposed by Mr Magryn was set out in the joint reports received into evidence as Exhibits D11 and D12. The proposal involved the installation of supporting beams at the top of each fence post, and removal of the existing concrete footings under each alternate post, and the welding of new posts to the existing posts with new concrete footings. Thus, what Mr Magryn proposed involved new footings and the transfer of the load between posts so as to eliminate the concerns that had been raised by Mr Deek as to the adequacy of the existing footings and posts. The appellants stress that it was not a case of adding anything onto the existing inadequate footings. Instead, there would be new footings.
For that reason, the appellant submit that Mr Magryn had addressed the concern raised by Mr Deek about the inadequacy of the concrete footings. Furthermore, the concern expressed by Mr Deek about the inadequacy of the posts was also addressed by the use of new and stronger posts, and the transfer of load through supporting beams. Mr Deek did not give any further written or oral evidence as to why that proposal would not work. Most importantly, the Magistrate did not make any findings as to whether or not Mr Magryn’s proposal would work or not.
The appellants also submit that the Magistrate did not explain in her reasons precisely what she believed the residual concern held by Mr Deek to be, nor did her Honour explain why she did not accept the response by Mr Magryn. For these several reasons, the appellants submit that the reasons given by the Magistrate for not accepting or rejecting the evidence of Mr Magryn were entirely inadequate.
Grounds 4 and 5
The appellants observe that the evidence established that the cost of the rectification proposal suggested by Mr Magryn was about $16,000 (inclusive of GST) and that is about half the cost of a new fence. They also submit that if the respondents did not consent to their deck being temporarily removed so as to enable the erection of a new fence and the digging of new footings, that would require the appellants’ garden to be destroyed. The evidence also established that such work would give rise to a real risk that the retaining wall would be damaged, thereby resulting in further cost. When originally installed, the cost of the retaining wall was $8,500. The evidence of Mr Magryn was that it would be likely to cost double that amount to dismantle and re-erect the garden wall. There would be further costs in reinstating the garden with established plants. The appellants also submit that the rendered fence, the garden and retaining wall provide them with considerable amenity. That amenity would be lost if the rendered fence is to be replaced with a Colorbond fence placed above a concrete plinth.
The appellants submit that as the respondents did not establish a valid engineering reason as to why Mr Magryn’s proposed solution could not work, the decision of the Magistrate has two remaining conclusions. The first such conclusion is that the proposed work would be performed on an inadequate structure. However, the appellants submit that this is not a valid reason for rejecting Mr Magryn’s solution because the rectification work would make the fence an adequate structure. The second aspect of the Magistrate’s conclusions is that a Colorbond fence is an adequate fence in terms of s 12 of the Fences Act. That is all that is required. However, the appellants submit that a Colorbond fence will be far more expensive than the underpinning proposed by Mr Magryn. The cost of the Colorbond fence referred to by the Magistrate, being $8,900 in total, is not correct as that related to a lower fence. Such a fence would also be far less attractive.
For these reasons, the appellants submit that the Magistrate erred in reasoning that a Colorbond fence would be appropriate because it would be an adequate fence. If the existing fence were to be rectified, it would also be an adequate fence but would be cheaper and more attractive.
The appellants also submit the Magistrate erred in reasoning that it was not appropriate to require work to be done from the respondents’ property. Regardless of whether a new fence is erected or the existing fence is rectified, the work needs to be performed from somebody’s property. If the work is done from the appellants’ side, it will require complete destruction of their garden bed and possible damage to the retaining wall. If the work is performed from the respondents’ side it will merely require taking off some timbers from their decking which will then be replaced. That will involve less inconvenience overall.
The appellants also submit that the Magistrate erred in finding that the rectification proposed by the appellants based upon the opinion of Mr Magryn would result in a fence of “better quality than an adequate fence”. The error in her Honour’s reasons was that there is nothing in the Fences Act that requires the Court to select a fence of the lowest quality. Section 12(7) specifically recognises that an order may be made for a fence that is of more than adequate quality. However, in this case the lesser quality fence is both the more expensive and more inconvenient option.
The appellants submit that s 12(7) of the Fences Act does not preclude the Court from ordering the installation of a fence of better than adequate quality. The Act specifically contemplates that outcome but deals with the costs consequences of such an order. The Magistrate has misconstrued s 12(7) and has thereby made an error of law. Furthermore, the appellants submit that the cost consideration referred to in s 12(7) is not relevant because the better quality fence sought by the appellants will be cheaper than the adequate fence ordered by the Magistrate.
Grounds 6 and 7
The appellants submit that the Magistrate erred by stating at [30] that there was no basis upon which she may or ought to compel the respondents to allow access to their property and deconstruction of their timber deck for the purpose of rectifying the existing fence. The appellants submit that paragraphs (b), (g) and (j) of s 12(2) of the Fences Act clearly empowered the Magistrate to make any order that may be necessary or expedient in relation to entry upon or access to land for the purposes of performing the proposed fencing work. Those provisions also empowered her Honour to make any order or give any direction that may be necessary or expedient to overcome difficulties ascertained during the progress of such work.
The appellants submit that it is appropriate for this Court to order that the fence be rectified as proposed by Mr Magryn. Alternatively, the matter may be remitted for rehearing before a different Magistrate.
The appellants also seek leave to enter as further evidence several quotations received in accordance with the orders made by the Magistrate when she published her judgment. These quotations relate to the cost of the work ordered by the Magistrate.
The respondents’ submissions
The respondents submit that many of the essential steps in the reasoning of the Magistrate have not been challenged in this appeal. They refer to the agreement by the experts that there was a deflection in the fence to the degree, and at locations, specified in the joint report. Thus, the fence is not an adequate fence as defined in s 12(8)(a) of the Fences Act.
The experts also agreed that the footings were inadequate for both the fence as originally installed and also in its modified state. In that light, Mr Magryn had accepted that the increased height of the fence would have exacerbated the problem caused by the inadequate footings. However, it was not necessary to make conclusive findings about the cause of the instability in the fence. Ultimately, the parties agreed that “something needs to be done” but could not agree what needed to be done.
The respondents also point to the fact that the two experts had agreed that the existing fence posts were inadequate for the original rectification proposal put forward by Mr Magryn. That finding by the Magistrate is not challenged on this appeal.
The respondents also refer to the finding by the Magistrate at [30] that the remediation proposal suggested by Mr Magryn would result in a fence of better than adequate quality which should not be imposed upon the respondents in the circumstances identified by her Honour. Those circumstances were that the respondents opposed the remediation proposal, implementation of this proposal would require the deconstruction of their deck and Mr Magryn had not suggested that his proposal was necessary to ensure that any fence was adequate and safe. He had only advanced the remediation proposal in the context of the objection by the appellants to the removal of the current fence.
The Magistrate found that the evidence of Mr Deek should be accepted for several reasons. Her Honour’s reference to the “history of the matter” must be taken to mean the history of disagreement between the parties about their dividing fence. The reference by her Honour to “reasons he has expressed” was clearly a reference back to [28] of the judgment. Her Honour stated 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 safe long-term solution’”. Her Honour also referred to the opinion expressed by Mr Deek that a freestanding fence should stand on its own and not rely on attachment to other elements which may be disconnected, e.g., the respondents’ brick garage.
The respondents also refer to the finding by the Magistrate that a Good Neighbour Colorbond fence would also be adequate and her observation that this was what the parties had originally installed. Her Honour also observed that the appellants would be entitled to erect a fence of better than adequate quality but the respondents would only be liable to contribute to half of the cost of an adequate fence. For these reasons her Honour concluded that the current fence should be removed, and a Colorbond Good Neighbour fence erected with a height of 1.85 m when measured from the respondents’ side. That fence should be freestanding and not attached to any other element.
The respondents submit that the Magistrate was not required to make a decision concerning the differences of opinion between Mr Magryn and Mr Deek as they had agreed on many issues. The Magistrate was also not required to give reasons as to “whether it was feasible to rectify the existing fence by underpinning”. Mr Magryn had not insisted that his remediation proposal was necessary, but had simply advanced that proposal as an option given the opposition by the appellants to the removal of the fence. Thus, her Honour’s decision did not depend upon the feasibility of the remediation proposal. Upon being faced with two competing options, the Magistrate simply exercised her discretion to determine which option was most appropriate. For this reason, the respondents submit Ground 1(a) must fail.

The respondents also submit that the Magistrate did not base her decision on a finding that the concern of the appellants about their garden bed and the rendered fence was of less importance than the concern held by the respondents about their decking. The Magistrate set out at [30] of her judgment a number of considerations which led her to the conclusion that the most appropriate course was the installation of the Good Neighbour fence. The most significant factors in her Honour’s decision appear to have been her acceptance of the evidence of Mr Deek that remediation would not be suitable if it would involve attachment to fence structures that were inadequate and freestanding rather than attached to the brick garage. On that basis, the respondents submit that Ground 1(b) should be dismissed.
The respondents submit that the words “in view of the history of the matter” in the last sentence of [30] of the judgment can only refer to the history of disagreements between the parties. The respondents submit that the Magistrate was indicating her acceptance of Mr Deek’s evidence that the applicants’ rectification proposal should not depend upon attachment to the inadequate existing fence structures so as to avoid ongoing disputes. Her Honour’s use of the words “for the reasons he has expressed” clearly referred back to the summary of Mr Deek’s evidence included at [28] of the judgment.
In the context of the Magistrate’s acceptance that attachment to inadequate elements of the fence would not provide an acceptable and safe long-term solution, that a freestanding fence should be self-supporting rather than connected to the brick garage and that these matters were particularly important given the history of disagreement and the need to achieve a solution that minimised the risk of further disputation, the respondents submit that her Honour’s conclusion was obvious and perfectly reasonable. Thus, Ground 2 should be dismissed.
For the preceding reasons, the respondents also submit that Ground 3 should be dismissed. The feasibility of the proposal being advanced by Mr Magryn was not a determinative factor in the reasons of the Magistrate.
The respondents submit in relation to Ground 4 that the Magistrate did not find that underpinning was not possible from an engineering perspective. Nor is it the case that a finding that it was possible would have inevitably led to the conclusion that it should be ordered. The respondents submit that the appellants are seeking that the Court intervene and set aside the Magistrate’s decision in circumstances where they have not established that her Honour’s findings were contrary to some incontrovertible fact or other uncontested testimony or evidence, or otherwise glaringly improbable or contrary to some compelling inference in the sense referred to by the High Court in Fox v Percy.[4]
[4] (2003) 214 CLR 118 at [28]-[29], (Gleeson CJ, Gummow and Kirby JJ).
The respondents note that the appellant has criticised Mr Deek for not having commented on the revised proposal advanced by Mr Magryn in the joint expert report. That report was prepared after the fourth day of the trial. The questions that the experts were asked to address related to the proposal that Mr Magryn had put forward in his own expert report and which was the subject of his oral evidence. After that had occurred, Mr Magryn elected to put forward a new proposal as a result of his concession that the existing fenceposts were not adequate. In those circumstances, Mr Deek took the view that the questions that the experts were asked to address in the joint report did not relate to a proposal that Mr Magryn had developed following receipt of the questions that were to be addressed in the joint report. For that reason, the respondents strongly submit that there is no basis for the contention by the appellants that the respondents appeared to have given instructions to prevent Mr Deek from commenting on the fresh proposal advanced by Mr Magryn.
The respondents further submit that Grounds 6 and 7(a) mischaracterise the findings made by the Magistrate. Her Honour did not find that underpinning “could not be ordered” nor did she find that the Court was not authorised to order underpinning or that the Court did not have power to make such an order.
The respondents submit that it is clear from the Magistrates reasons that she did not consider that she did not have power to order underpinning of the fence. Because Mr Magryn had not suggested that underpinning was essential, the Magistrate was required to choose between two feasible solutions. After having regard to the evidence before her, the Magistrate decided to order the adoption of the proposal that provided the safest long-term solution because it did not involve attachment to temporary fence posts which were inadequate and nor did it require attachment to the brick garage.
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]
The principles summarised by Lovell J must be applied when considering the adequacy of the Magistrate’s reasons.
The application of the Fences Act
Section 12(6) provides that the costs of fencing work may be apportioned in accordance with the respective benefit derived by adjoining owners. There is a statutory presumption that adjoining owners derive equal benefit. The Magistrate found that the owners did derive equal benefit and there was no basis for apportionment. That aspect of her Honour’s decision has not been challenged in this appeal.
Although the Magistrate’s finding that the fence was not adequate has not been appealed, it remains necessary to refer to the definition of adequacy in the Fences Act. Section 12(8)(a) provides that an adequate fence is “a fence that conforms with general standards of good fencing existing in the locality in which the fencing work has been or is to be performed and is adequate for the purposes of the owner against whom contribution is sought”.
That definition is highly significant in relation to the operation of s 12(7). The latter provision stipulates that if work involves the installation of a fence of better quality than an adequate fence, then in the absence of agreement by any adjoining owners, the owners will only be liable for one half of the minimum cost of erecting an adequate fence or converting the existing fence into an adequate fence.
As there was no agreement between the adjoining owners, the fundamental factual question to be decided by the Magistrate was whether the existing fence needed to be replaced with a new (and adequate) fence or rectified so as to convert it into an adequate fence.
Accordingly, because the presumption in s 12(6) was not rebutted, the effect of s 12(7) was that, in the absence of agreement, the Magistrate could not make an order that required either party to contribute an amount greater than one half of the cost of what her Honour considered to be an adequate fence. Her Honour expressly referred to that principle in the opening sentence of [31] in her judgment.
The appellants have contended in Ground 6 that s 12(7) of the Fences Act relates only to an order for a new fence and is not relevant to the repair of an existing fence where an order may be made under s 12(2)(b). I reject that contention due to the inclusion of the words “or the conversion[7] of an existing fence into an adequate fence or a fence of better quality than an adequate fence” in s 12(7). In the particular context of s 12(7), I consider that the word “conversion” contemplates the rectification, modification or repair of an inadequate fence so that it becomes an adequate fence. Thus, I consider that the two different proposals advanced by Mr Magryn both constituted “conversion” within the meaning of s 12(7).
[7] Emphasis added.
Section 12(7) limited the solution that the Magistrate could impose on the parties. The provision did not directly preclude the Court from ordering the installation of a fence of a better than adequate quality. However, because s 12(7) precluded the Court from ordering a party to pay more than the minimum cost of an adequate fence it effectively limited the resolution that the Court could order. That limitation served to limit the scope of the discretion otherwise conferred by s 12(2)(b). In other words, any order made under s 12(2)(b) for repair was subject to the limits imposed by s 12(7).
The effect of s 12(7) is that the Magistrate could not order the erection of a new fence that was more expensive than an adequate fence without the mutual agreement of the parties, or the willingness of one party to meet the additional cost in full. For the same reason, in the absence of agreement or the willingness of one party to meet the extra cost, her Honour could also not order the undertaking of remedial work to the existing fence that would be more expensive than installation of a new adequate fence.
It is not entirely clear, as the appellants assert in Ground 6 of the Notice of Appeal, that the Magistrate held that she could not order adoption of Mr Magryn’s remediation proposal as that would involve installation of a better than adequate fence. However, if that was the effect of her Honour’s decision, it was not contrary to s 12(7), albeit that it would have involved other errors, as I explain below. In any event, Ground 6 is not correct to the extent that it asserts that s 12(7) relates only to orders for a new fence. I have found at [65] that s 12(7) also applies to remediation work. I therefore dismiss Ground 6.
The Magistrate found that remediation of the existing fence would result in a fence of better quality than an adequate fence. There is no appeal against that finding. Although s 12(7) precluded the Magistrate from ordering that the parties meet the cost of remediation to produce a better than adequate fence if that was more expensive than a new adequate fence, the corollary was that if rectification would produce a better than adequate fence at a lower cost than a new adequate fence, it would have been open to her Honour to order rectification.
Before further considering that issue, I note that the finding by the Magistrate that a new Good Neighbour Colorbond fence would be an adequate fence has not been directly challenged in this appeal. Ground 5 raises a slightly different issue in that it contends that such a fence would not be appropriate because of the cost and the loss of amenity suffered by the appellants and the uncertainty as to its proposed height. Thus, Ground 5 challenges the exercise by the Magistrate of her discretion under s 12(2) of the Fences Act to order the installation of such a fence by way of remedy. Cost is an essential element in the exercise of that discretion, so I turn to the question of cost.
The cost of proposed works
To ensure that s 12(7) was correctly applied, it is necessary to compare the costs of the rectification work proposed by Mr Magryn with the costs of installing the Good Neighbour Colorbond fence as ordered by the Magistrate. Before doing so, I will examine the cost of installation of a new fence that is substantially similar to the existing fence. That serves to place the different proposals in context. Moreover, several of the quotes applicable to installation of a new fence that is substantially similar to the existing fence also apply to the installation of a Good Neighbour Colorbond fence.
The Magistrate stated at [26] of her Honour’s reasons that the respondents had submitted quotes from SA Ceiling and Walls Systems (“SA Ceiling”) for removing and replacing the existing fence with one of the same or similar construction. The price quoted for erection of such a fence of 1.8 m in height was $21,994, while the proposed charge for a fence 2.4 m high was $25,974.
In fact, the costs referred to by the Magistrate at [26] for removing and replacing the existing fence with one of the same or similar construction were not derived directly from the quote provided by SA Ceiling. Those costs were drawn from a document prepared by the respondents and received into evidence as Exhibit P48. The (unidentified) author of that document had extracted and tabulated prices from several quotes. Some of the quotes are also subject to restrictions or qualifications as to the manner in which the work will be performed. It is therefore necessary to refer in some detail to the quotes that were before the Magistrate.
An undated quote from SA Ceiling was admitted into evidence as Exhibit P47. It included a cost of $220 for hire of safety fencing for two weeks, and a further cost of $8,525 for labour and materials for Stage 1 works. The Stage 1 works included laying out protective coverings for the respondents’ paving, deck and spa, erection of temporary safety fencing, the removal of the aluminium slats (from the privacy screen), the removal of all elements of the existing fence and removal and dumping of debris. The nature of the Stage 1 works indicates that work was to be performed from the respondents’ property. There was a specific note that the quote did not include any work involving site preparation, concrete work, footings etc.
A further charge of $11,000 was quoted by SA Ceiling as Stage 2 works for installation of a 1.8 m high replacement fence, or $14,980 for a 2.4 m replacement fence. The Stage 2 works comprised all aspects of installation of the replacement fence other than the footings, although I note that there is no mention of the fence posts. Thus, the total charge proposed by SA Ceiling was either $19,745 for a 1.8 m fence or $23,725 for the higher fence.
A quote from Seed Construction and Maintenance Services (“Seed”) dated 30 April 2020 was received as Exhibit P44. This quote proposes a cost of $4,500 for dismantling and reassembling the respondents’ pool fence and decking. A charge of $5,500 was proposed for removal of the existing fence and dumping of materials. All materials would be removed “via the doorway” to the appellants’ property so as to keep costs to a minimum.
Further charges of $1,750 were indicated by Seed for painting the appellants’ side of the privacy screen and $2,200 for spray-painting the Colorbond fence on the respondents’ side above the height of the deck and planter box (1.2 m) and the full height on the appellants’ side (1.8 m). The quote was subject to a warning that all proposed charges were based on unrestricted access being available from both sides of the fence. If access was restricted, extra labour charges would apply.

A quote from Ladhams & Sons (“Ladhams”) was received into evidence as Exhibit D45. It proposed a price of $5,494.50 for preparation of the footings. The 14 post holes would be dug by hand to 1.6 m deep. If the fencing contractor supplied the posts, they would be installed when the concrete is poured. The quote did not include the cost of the fence posts. I have previously observed that the cost of the posts may not have been included in the quote provided by SA Ceiling.
Ladhams noted that the quote was based upon their workers being allowed access to the site through the appellants’ property and concrete being brought through that property. If access could not be gained by that means, there would be an extra charge for labour of approximately $1,130. Scaffolding may need to be erected on the appellants’ property.
Ladhams also noted that plants would need to be removed from the appellants’ garden bed before work commenced and no allowance had been made for the cost of that work (or, I add, replacement of the plants). Ladhams further noted that the fencing contractor should install temporary fencing around the respondents’ swimming pool.
It is apparent from the preceding information that the costs referred to by the Magistrate at [26] for the installation of a replacement fence comparable to the existing fence were derived as follows. The total costs referred to by her Honour comprised the quotes of $5,500 from Seed for demolition of the existing fence, either $11,000 or $14,980 from SA Ceiling for installation of the replacement fence (depending on its height) and $5,494 from Ladhams for the footings. That resulted in an aggregate cost of $21,994 for a 1.8 m fence and $25,974 for a 2.4 m fence, being the figures referred to by her Honour.
The cost of removing and replacing the appellants’ established plants has not been included in the figures referred to by the Magistrate, nor has the cost of erecting a temporary safety fence around the respondents’ swimming pool. While that work was an element of the Stage 1 quote from SA Ceiling, a separate cost was not provided for that aspect of the work and it has not been included in the aggregate costs referred to by the Magistrate at [26].
The Seed quote also expressly stated that it was based upon unrestricted access from both sides and that additional charges would apply if that was not possible. However, the quote did not indicate the extent of those additional charges.
It is clear that the figures referred to by the Magistrate at [26] for the cost of installing a replacement fence similar to the existing fence have underestimated the cost of the work to the extent that the cost of the replacement of the appellants’ plants has not been included. Additional amounts may also have been payable to Seed if access were not available from both sides. The cost of the fence posts may also have possibly been omitted from the quotes. However, despite these actual and potential underestimations, it is clear from the information which follows that the cost of a replacement similar to the existing fence would significantly exceed the other two alternatives, i.e., the revised Magryn remediation proposal or a new Good Neighbour Colorbond fence.
A quotation provided by Complete Underpinning for the revised remediation proposal recommended by Mr Magryn was in the sum of $16,000.[8] The Magistrate noted at [27] that it was uncertain whether this quote included the cost of the removal of the respondents’ deck. However, the quote expressly stated that the cost of dealing with the deck was included and the oral evidence of Mr Magryn repeated that fact. Thus, the Magistrate erred in her understanding of the evidence.
[8] The quote also included an allowance of up to an extra 10% for unforeseen contingencies.
A further issue is the cost of installation of a Good Neighbour Colorbond fence. The Magistrate noted at [26] that the respondents were prepared to accept the installation of such a fence of 1.8 m in height. To that end, they had provided a quote from Slade Fencing (“Slade”) dated 18 April 2020 for $1,650 for installation of a 1.8 m fence.[9] The respondents also supplied a further quote from Seed dated 30 April 2020 for $7,250 for removal of the existing fence and the painting of the privacy screen on the side facing the appellants’ property in a colour selected by them. In fact, the Seed quote referred separately to the removal and painting work, with a price of $5,500 for the former and $1,750 for the latter. The Slade quote required access to be granted from both sides of the fence and that “all existing fencing, foliage, attachments and obstructions” were to be cleared by “the client” before work commenced.
[9] Admitted into evidence as Exhibit P46.
The photographs admitted into evidence show that the respondents’ deck and planter box almost abut the fence.[10] This strongly suggests that the reference to “removal of all obstructions” was likely to have included those items and thus the Slade quote required that both the deck and planter box be disassembled before the fencing work could commence. The quote from Seed dated 30 April 2020 referred to a charge of $4,500 for dismantling and reassembling the respondents’ pool fence and deck. The Seed quote was fairly detailed in relation to the decking but made no mention of the planter box. The photographic evidence shows that this structure is built of brick and mortar and thus not amenable to being dismantled. While demolition may be a fairly simple task, it appears to me that the overall cost of demolition, disposal of debris and, more particularly, rebuilding may be significant.
[10] I was informed from the bar table at the appeal hearing that due to its thickness, the fence (which is centred on the boundary) intrudes some 150 mm into the respondents’’ property. I presume it enters into the appellants’ property to a similar extent.
The Magistrate did not make any reference to the cost of installing new concrete footings. As I have noted at [78], the quote from Ladhams for this work was $5,494.50 if access was provided through the appellants’ property with an extra charge of approximately $1,130 if that was not possible. The quote made clear that additional costs would be incurred for removal and replacement of the appellants’ plants. Ladhams also required the erection of fencing around the respondents’ pool.
The aggregate cost of installing a new Good Neighbour Colorbond fence based on the information available to the Magistrate (but not referred to by her Honour in all instances) would have been as follows:
Dismantle deck and pool fence  $4,500
Demolition and removal of existing fence           $5,500
Post holes and footings  $5,494
Good Neighbour Colorbond fence   $1,650
Total$17,144
That total does not include the cost of removing and rebuilding the respondents’ planter box, if that is necessary, nor the cost of replacing the appellants’ plants. Moreover, those costs relate to a fence that is only 1.8 m in height. The cost of a 2.1 m fence would be greater. It became clear on the appeal hearing, that because of the difference in height between the appellants’ and respondents’ land, it would be necessary to install a 2.1 m Colorbond fence[11] underpinned by two layers of concrete sleepers so as to maintain an appropriate fence height when viewed from the respondents’ side. Nevertheless, even though these additional costs are not included, the quoted cost of $17,144 for a 1.8 m Colorbond fence before the Magistrate exceeded the figure of $16,000 quoted by Complete Underpinning for the remediation work proposed by Mr Magryn.[12]
[11] The maximum available height of a Colorbond fence is 2.1 m.
[12] Although the latter quote did refer to a potential extra payment of 10% (i.e., $1,600) for “anything unforeseen”.
Thus, the quotes in evidence before the Magistrate indicated that Mr Magryn’s remediation proposal was cheaper than the installation of a new Good Neighbour Colorbond fence as ordered by her Honour. Given that the revised Magryn proposal required much less by way of new footings, did not require the demolition and removal of the existing fence nor the installation of an entirely new fence, that is unsurprising. While unforeseen events might possibly have raised the cost of the quote provided to Mr Magryn beyond $16,000, the figure of $17,144 quoted for a 1.8 m Colorbond fence was clearly less than the true cost, not least because it was based on the wrong fence height.
Adequacy of reasons
I have found at [69] that if rectification would produce an adequate fence, or a better than adequate fence, at a lower price than a new adequate fence, it was open to the Magistrate to order rectification. Thus, the question is whether her Honour gave adequate reasons for declining to order rectification and instead ordering the installation of a new Good Neighbour Colorbond fence.
There were several steps in the Magistrate’s reasoning process. The first step was that the current fence was inadequate and thus the matter was to be determined by what constituted an “adequate fence” under the Fences Act. A Good Neighbour Colorbond fence would be an adequate fence in the circumstances of this case. That step in her Honour’s reasoning has not been impugned.
The second step in the Magistrate’s reasons was that the rectification work proposed by the appellants, based upon the evidence of Mr Magryn, would result in a fence “of better quality than an adequate fence”. That conclusion is also not directly challenged in the appeal.
The third step leading to the Magistrate’s conclusion was that as the respondents opposed rectification, and that would require access to their property and deconstruction of their deck, there was no basis upon which they could or should be compelled to participate in the rectification process. The appellants contend that the Magistrate erred in considering this third step. Her Honour supported her reasoning by reference to ancillary matters. I will consider those ancillary matters after I have considered her Honour’s primary reasons.
The Magistrate considered at [30] that the opposition by the respondents to rectification should be given priority over the support by the appellants for that proposal because rectification would require access through the respondents’ property and the deconstruction of their deck. However, there were several countervailing considerations that were not referred to by her Honour in reaching that conclusion.
Included amongst these countervailing considerations was the fact that the installation of a new Good Neighbour Colorbond fence would be more expensive than the revised rectification proposal put forward by Mr Magryn. Furthermore, installation from the appellants’ side would cause them disruption, destroy their plants and may possibly damage or destroy their garden wall and agricultural drain. It would also result in what the appellants regarded as a less visually attractive fence, which was a matter of concern to them.
Due to the failure of the Magistrate to refer to any of these countervailing considerations in reaching her conclusion and balance them against the matters favourable to the respondents, I consider that Honour erred by not exposing her reasoning on critical issues that were central elements in the dispute between the parties. To that extent, her Honour has failed to give adequate reasons in accordance with the principles stated by Lovell J in Kirkland v The Queen. Accordingly, I uphold Grounds 1(b), 5(a) and 5(b).
I find that the Magistrate erred in holding at [30] that she could not order the deconstruction of the respondents’ deck so as to enable the proposed remediation work. Sections 12(2)(a) and (b) of the Fences Act specifically empower the Court to make such orders. I therefore uphold Ground 7(a).
Before discussing Ground 7(b), I note that s 12(2)(g) specifically provides for the making of access orders where necessary to perform fencing work. At [30] the Magistrate stated there is “no basis upon which I may or ought to compel” the respondents to grant access to their land. When read in context, I take her Honour to be saying that she should not exercise her discretion in the circumstances of the case to order the respondents to grant access rather than as saying that she had no power to make such an order.
The complaint in Ground 7(b) is that the Magistrate gave no reason as to why the erection of the new Good Neighbour Colorbond fence should be undertaken from the appellants’ property rather than the respondents’ side. As I have noted, the Magistrate stated at [30] that the prospect of the respondents being required to allow access through their land, which would require dismantling of their deck, was one of the matters that led her to decide against the rectification proposal. Her Honour noted at [29] the appellants’ concern about damage to their mature garden but did not refer specifically to damage to the underlying drainage system and the retaining wall. Her Honour did not expressly weigh up the balance of convenience between the parties before deciding that the interests of the respondents should be preferred. However, at Order 6, her Honour directed that “Both parties must take steps to afford access by the agreed fencing contractor, including with any vehicle or equipment that is reasonably required …”.[13] Order 6 is plainly inconsistent with her Honour’s conclusion about access as stated at [30]. That inconsistency reinforces my conclusion that her Honour failed to give adequate reasons for her decision on this point. I uphold Ground 7(b)
[13] The relevant order was numbered as Order 6 in the judgment but appears as Order 3(f) in the orders made on 30 April 2021.
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.
Although her Honour was persuaded by the opinion of Mr Deek, she did not explain why she accepted that any rectification proposal that involved adjustment of, or attachment to, existing inadequate structures was not an acceptable solution. Mr Magryn acknowledged that the first proposal would not provide an appropriate solution upon becoming aware of the inadequacy of the existing posts and foundations. However, his revised proposal, which was supported by fresh engineering calculations and structural diagrams, had been developed so as to address the deficiencies in the existing posts and foundations. When Mr Magryn was recalled before the Magistrate, he gave evidence about his revised proposal and the supporting documentation was admitted into evidence. He also explained why he did not consider attachment of the fence to the third-party garage wall to be problematic: it is done regularly in Adelaide; and, if the garage were to be removed, the end of the fence could be attached to a post.
The criticism directed by Mr Deek at Mr Magryn’s proposal related solely to the first proposal which had been abandoned by Mr Magryn. Mr Deek had not engaged in any way with Mr Magryn’s revised proposal, and the Magistrate had heard no evidence from him on that topic.
Although the Magistrate has stated that she preferred the evidence of Mr Deek, she has not included in her reasons any comparison of his proposal with Mr Magryn’s revised proposal. In fact, because Mr Deek had not addressed the revised proposal in his comments in the joint expert report, and he was not recalled to give further evidence, there was no evidence before the Magistrate as to his opinion about the efficacy of the revised proposal.
Because the Magistrate erred by preferring the evidence of Mr Deek without him having given any evidence upon Mr Magryn’s revised proposal, it is necessary to uphold Grounds 1(a), 2 and 3.
As I had concluded that the Magistrate had erred in several respects, the question arose as to whether I should immediately remit the matter back to the Magistrates Court for further hearing or, alternatively, take further evidence myself concerning the competing expert proposals so that I may decide the final orders. I convened a directions hearing to hear counsel on that question. Both counsel expressed a preference that I should take further evidence from Mr Deek and Mr Magryn. Unfortunately, due to the prior commitments of the experts and of counsel, the directions hearing and the taking of further evidence took some time to arrange.
Further oral evidence on the appeal
Mr Deek and Mr Magryn gave further oral evidence before me on 20 June 2022. Neither produced a further expert report.
Mr Deek observed that the existing fence was the most complex that he had ever seen. In his opinion, Mr Magryn’s revised proposal contained too many weak links. If any link failed, and in his opinion that will occur in the near future, the fence will require repair again. He also observed that builders would be familiar with the task of demolishing an existing fence and erecting a new freestanding fence. The task of rectifying the existing complex fence in accordance with Mr Magryn’s specifications would be more difficult. For those reasons, he maintained his position that the only appropriate solution is the erection of a new simple standalone Colorbond fence that will definitely operate as intended.

While maintaining his opposition to Mr Magryn’s proposal, Mr Deek agreed that three of the criticisms that he had made in the joint expert report were no longer relevant in view of the revision by Mr Magryn of his proposal.
Mr Deek had objected to Mr Magryn’s original proposal due to the inadequacy of the subsisting piers and posts. He acknowledged that the revised proposal overcame that objection. He also acknowledged that his earlier objection that the deck or planter box should not be relied upon to support the fence was no longer relevant.
There had been a disagreement in the joint report concerning the appropriate measure of wind speed to be applied in the wind loading calculations for the fence. Mr Magryn had preferred a speed of 30 m/s while Mr Deek considered 33 m/s to be the appropriate measure. The higher speed would produce a 21% greater loading on the fence. Mr Magryn’s evidence before the Magistrate had been that the greater loading could be accommodated by digging the footings to 1.65 m rather than 1.5 m. Mr Deek accepted this to be correct and agreed that the extra cost would not be material.
Mr Deek also acknowledged in cross examination that Mr Magryn’s proposal made sense as a suggestion from an engineering perspective. However, he considered that it presented a number of practical problems. This was the basis for his continuing objection to the proposal.
Those practical problems were as follows. First, the existing fence is connected to a neighbour’s brick garage to the north and to another neighbour’s fence to the south. If the garage were to be removed at some future time, Mr Deek thought it likely that access would need to be gained through the neighbour’s property so as to insert a concrete pier and post. He also believed that a prospective purchaser, or the vendor’s land agent, might inquire about the issue.
A second practical problem referred to by Mr Deek was difficulty in gaining sufficient access to bore some of the holes required for the footings. In this context he expressed concern that the contractor proposed by Mr Magryn had not conducted an inspection from the respondents’ side. Mr Deek suggested that removal of the boards from the respondents’ deck would not provide sufficient access. He considered that, because of the access problem, the machine to be used could not drill holes in the required locations.
A third concern expressed by Mr Deek was that the use of timber cross members to support the unremediated posts was not appropriate. Even though the timber was to be rendered, small cracks would occur in the render thereby allowing access to water and thus the wood would rot over time. He accepted that this issue could be resolved by use of steel members.
A fourth concern held by Mr Deek was that Mr Magryn’s Scope of Works document was deficient as it did not specify how the timber cross members were to be connected to the fence posts.
Mr Deek also suggested as a fifth area of concern that the task of propping up the fence while remediation occurred would cause considerable damage to the existing structure, being the cladding, the blue board or the foam. He referred, in particular, to the likelihood of cracks developing between the various panels that comprise the fence.
Mr Deek further observed that the rectification proposal did not have Council approval and there was no guarantee that approval would be granted. He suggested that Council officers had shown a keen interest in the issue and he also referred to the fact that Mr Magryn had incorrectly granted a certificate of structural adequacy for the original fence. Mr Deek acknowledged that development plan consent was not required. It would only be necessary to obtain Building Rules consent.
Mr Magryn did not refer in his further evidence to the attachment of the fence to the neighbours’ garage and fence. Counsel relied on the evidence that Mr Magryn had given at trial on this issue.
Mr Magryn was confident that access to the work site would not cause difficulties in implementation of his remediation proposal. It was only necessary to remediate five piers and posts. Only those piers and posts to which ready access could be gained would be remediated. For that reason, the contractor would not remediate posts adjacent to the respondents’ planter box, spa and shed. Although the contractor that Mr Magryn recommended, Complete Underpinning, had not examined the site from the respondents’ side, he had shown diagrams to the principal of the firm and described to him the situation. The machine that Complete Underpinning would use is very flexible and he was confident that it could bore the post holes as required. If not, there are alternative machines available.
Mr Magryn acknowledged that it would be necessary to remove the planks from the respondents’ decking and probably the supporting joists. It may also be necessary to remove some bearers that support the joists. If the location where a posthole was to be bored conflicted with one of the decking support posts, it would be necessary to remove that post and then put it back into place with the concrete for the fence post.
It is appropriate to note Mr Magryn’s evidence before the Magistrate in relation to the use of timber members. He stated that he had selected this material because it is very readily available, cheap, easy to work with and will do the job. He did not accept the relevance of Mr Deek’s criticism in the expert report that timber may deteriorate and ultimately fail. There are many fences in Adelaide with timber elements that have lasted 40 to 50 years unpainted. Under his proposal, the timber would be rendered and was perfectly suitable. However, a galvanised steel member would also be suitable and only slightly more expensive.
Mr Magryn further stated in evidence on the appeal that the risk of a timber member failing was extremely low. If it were to occur, that might be in 50 years hence. If that happened, it would not cause the fence to collapse. That section of the fence where the failure occurred would simply move back 100 mm to its present location.
Mr Magryn expressed surprise that Mr Deek had raised a concern that he had not stated in the specifications how the wooden members would be connected to the metal posts. He said that this was a very simple detail. He would probably use a steel bracket fixed to the timber member with tek screws. The same method could be used if steel members were to be adopted.
Mr Magryn rejected the suggestion that propping up the existing fence while the rectification work was performed would be likely to cause significant damage. He pointed out that the proposal simply involved the pushing back of the existing 2.4 m fence by a maximum of 100 mm at the worst spot and generally much less than that. Any crack that occurred at the joins between panels, which was a concern identified by Mr Deek, could be fixed by a coat of paint.
Mr Magryn stated that he had regarded it as premature to approach a private certifier to obtain Building Rules consent prior to his proposal being approved. He was confident that consent would be granted promptly by a private certifier.
Fresh evidence of costs received on the appeal
The new quotes ordered by the Magistrate in relation to the cost of installation of a Good Neighbour Colorbond fence were received as fresh evidence on the appeal. [15]
[15] All quotes are inclusive of GST.
A quote from Seed dated 28 May 2021 indicates a cost of $7,700 for removal of the existing fence and dumping of materials if access was allowed through the appellants’ property. If such access was not granted, the cost would be $9,900. The quote indicated that all work would be done by hand. All plants were to be removed from the appellants’ garden bed before work started. The cost of removal and replanting was not included in the quote. An unobstructed area of 2 m was required from the edge of the appellants’ retaining wall.
Structural Restoration Services provided a quote dated 1 June 2021 in the sum of $11,250 covering excavation for nine piers, pouring of reinforced concrete and the supply and installation of nine posts. The quote was based upon all work being done from the respondents’ land.
Slade supplied a quote, apparently in June 2021, proposing a charge of $3,762 for installation of a Good Neighbour Colorbond fence of 2.1 m in height. The fence would be placed on top of plain coloured concrete sleepers 400 mm high. The quote requested that the top of the concrete should be 100 mm below ground level to allow installation of sleeper holders on the proposed posts. This indicates that, in practice, the combined height of the fence (2.1 m) and sleepers (400 mm less 100 mm) would be 2.4 m above ground level. The Slade quote did not indicate from which side the work would be done nor does it include the cost of the concrete sleepers.
Further consideration
As I have already determined that the appeal must be upheld, it is necessary to consider the orders that should be made to give effect to that decision. In doing so, I must take into account the evidence given at trial and also the further evidence given on appeal by Mr Deek and Mr Magryn together with the quotations from contractors received as further evidence on the appeal.
I found the evidence of Mr Magryn to be more persuasive than that of Mr Deek. I concluded that he had carefully thought through the issues and applied his professional skills to arrive at a practicable solution. Upon conceding that the principal barriers to adoption of the original Magryn proposal had been overcome by the revised proposal, Mr Deek largely relied upon a series of minor objections as the basis for his opposition. With the exception of the question of site access, I have found below that these objections had little substance. Nevertheless, the manner in which Mr Deek defended some of these objections had, at times, the appearance of advocacy or “last ditch” opposition. However, it is appropriate to record that Mr Deek did make immediate and proper concessions on several key issues.
The evidence given by Mr Deek at the appeal hearing provided no support for the negative findings made by the Magistrate at [30] in relation to “incorporation or attachment to existing, inadequate elements”. Mr Deek accepted that Mr Magryn’s revised proposal effectively addressed his concern about the inadequacy of the existing piers and posts. Importantly, Mr Deek also acknowledged that the new proposal made sense as a suggestion from an engineering perspective.
I consider that the two acknowledgments by Mr Deek negate the central element of the Magistrate’s reasons, i.e., that “any rectification proposal that involves adjustments or attachments to existing fence structures which are demonstrably inadequate is not a suitable course”.
The basis for Mr Deek’s continuing objection to the remediation proposal was founded upon several practical implementation problems. These matters were not elements of the Magistrate’s decision. However, each must be considered in determining the fresh decision that is now to be made.
I do not consider that connection of the remediated fence to a neighbour’s brick garage at its northern end and to another neighbour’s fence at the southern end provides a basis to reject the proposed remediation. First, the fence is already connected in precisely the fashion that is now objected to by the respondents’ expert. That has been the case for several years and there is no evidence, or even suggestion, that this is a matter of concern to the relevant neighbours. There is no evidence as to whether the neighbours had respectively consented, or not consented, to the fixture of the fence to their garage wall[16] or to their fence. Secondly, the evidence of Mr Magryn was that this practice is commonplace in Adelaide. Mr Deek did not give any contrary evidence. While common practice may not necessarily excuse a trespass, if that has occurred, it does suggest that any breach is minor and that prospective purchasers are unlikely to be concerned. Thirdly, there is nothing to suggest that removal of the brick garage is likely to occur in the short to medium term. If that were to occur, as Mr Magryn observed, a new pier and post could be installed.
[16] While there is no evidence, I assume that there must have been some drilling of screw holes into the brickwork of the garage.
Mr Deek also thought that there may potentially be problems in gaining access through the neighbour’s property to insert a new pier and post. However, s 18(1) of the Fences Act confers a right of entry to carry out “authorised” fencing work upon giving two days written notice. Section 18(4) provides that work will be authorised if, inter alia, it is authorised under the Act. Section 8 authorises the performance of replacement or repair work if notice is given in accordance with the Act, i.e., under s 5(3). While it is not a matter that I can decide in these proceedings, it would appear likely that the installation of a new post could be done through a neighbour’s land should the need arise and if the required process is followed.
In all the circumstances, I consider it somewhat disingenuous that the respondents rely upon an objection based upon the attachment of the existing fence to a neighbour’s property given that they were jointly responsible for its erection.
A second practical problem referred to by Mr Deek was difficulty in gaining access to bore some of the five holes required for the footings. I have carefully considered the evidence of the experts on this question as it has been a matter of prime concern to me. I accept Mr Magryn’s evidence that access can be gained to drill five holes with the machine proposed to be used by Complete Underpinning. The holes will be selected in accordance with accessibility requirements bearing in mind the presence of the respondents’ planter box, shed and spa. So as to gain access, it may be necessary to remove part of the surface timbers and even some of the underlying structure of the respondents’ deck.
I do not consider that interference with the deck can be avoided given the closeness of the deck to the boundary. Given the clear cost advantage in adopting Mr Magryn’s remediation proposal (see [152] below), and for this reason the fact that the installation of a Good Neighbour Colorbond fence would not satisfy s 12(7) for the reasons explained at [91], this is the only option available to the Court. However, I will order that as far as is practicable the deck must be returned to its pre-existing condition.
Another concern raised by Mr Deek was the use of timber cross members to support the unremediated posts. While I accept the evidence of Mr Magryn that any significant rotting of the timber is only likely to occur over many years, given his concession that galvanised steel could be substituted at little extra cost, thereby removing any risk of rotting, I will order that galvanised steel should be used.
I reject Mr Deek’s complaint that Mr Magryn’s specifications had failed to specify how the timber (or steel) cross members were to be connected to the fence posts. I accept Mr Magryn’s explanation. This was effectively that the expected approach would be so obvious to a contractor that it did not need to be expressly stated.
A fifth concern held by Mr Deek was that the task of propping up the fence while remediation occurred would cause considerable damage at the joins between cladding and perhaps more generally, although he was not specific about that. I consider that Mr Deek appeared to be overstating the risk given that the fence is only to be propped at its existing position while work is performed. Although I hold a limited suspicion that the required repairs might require more than a coat of paint or render referred to by Mr Magryn, given his description of the work to be done, I accept that crack filling would not require more than some silicone sealant or the like. In any event, I am not persuaded that the fence will suffer any significant damage given the description of the work given by Mr Magryn.
I turn to Mr Deek’s concern that the proposed work has not received Council approval. Because the proposal only involves rectification of an existing structure, Mr Deek accepts that development plan consent will not be required. Only Building Rules consent is needed. Mr Deek suggested that the Council would approach this matter with caution because Mr Magryn had previously provided an incorrect certificate of structural adequacy.[17] However, Mr Deek did not suggest that Mr Magryn’s specifications are contrary to the Building Rules. In that light, and as the Council must grant Building Rules consent if a building certifier certifies that the proposed work compiles with the Building Rules, [18] I am not persuaded that Mr Deek’s concern has any substance.
[17] That occurred because of the then unknown failure of the contractor to comply with the specifications when the fence was installed.
[18] Section 118(8)(b) of the Planning, Development and Infrastructure Act 2016 (SA).
I also do not consider that there is any substance in the concern expressed by Mr Deek about the lack of expertise of fencing contractors to carry out the work proposed by Mr Magryn. I accept Mr Deek’s view that a competent fencing contractor could readily deal with the task of erecting a Good Neighbour Colorbond. fence. While the current fence is unusually complex, and likely to be beyond the experience of many contractors, Mr Magryn does not propose to use an “ordinary” fencing contractor. He stated that Complete Underpinning had previously done a number of very complex jobs for him and had performed very well. He was confident that this job was well within the capability of the firm. I accept Mr Magryn’s evidence on this point in preference to that of Mr Deek.
The aggregate cost of erecting a Good Neighbour Colorbond fence referred to in the three quotes ordered by the Magistrate and referred to at [132]-[135] is at least $22,712. However, that does not include the cost of replacing the appellants’ plants and nor does it include the cost of the concrete sleepers. Moreover, because the quotes were provided in June 2021, it seems almost inevitable that the proposed charges will have increased due to inflation.
Because of the extra time elapsed and the likely greater effect of inflation, it is probable that the price of $16,000 (with a 10% allowance for unforeseen contingencies) quoted by Complete Underpinning on 27 May 2020 for the work proposed by Mr Magryn will have increased more than the preceding three quotes. The cost will also be increased to a small extent by the requirements that galvanised steel rather than timber cross members are be used and that the five new post holes and footings be to a depth of 1.65 m rather than 1.5 m. However, I am confident that the cost of the proposed remediation will still be very substantially less that the total cost of installation of a new Good Neighbour Colorbond fence referred to in the preceding paragraph. As I have previously said at [91], that is unsurprising given that Mr Magryn’s proposal involves remediation of the existing fence rather than its complete removal and installation of an entirely new fence.
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.