Roennfeldt v Wyness (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROENNFELDT & ANOR v WYNESS & ANOR (No 2)
[2024] SASC 96
Judgment of the Honourable Justice Bleby
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - FENCES AND FENCING - REPAIR OF FENCE
Application for variation of orders made by a single judge on appeal.
The application concerns a fencing dispute arising from defects to a boundary fence between neighbouring properties. Following their seeking approval to do so, the appellants increased the height of the fence. At some point thereafter, the fence began to deflect towards the respondent’s property. The respondent initiated a claim of negligence, arguing that the appellants had acted negligently in seeking approval to increase the height of the fence. The appellants counterclaimed.
On 30 April 2021, judgment was delivered in the Magistrates Court and both actions were dismissed. The magistrate determined that the fence was to be removed, and a new fence installed in its place.
The magistrate’s decision was appealed to a single judge of the Supreme Court. On 2 September 2022, the single judge relevantly made orders to the effect that the existing fence be remediated in accordance with a proposed scope of works propounded by the appellants (Order 3). This was subject to two modifications to the proposal: the five new footings were to be excavated to a depth of 1.65 m, and galvanized steel beams were to be used. The single judge also relevantly granted liberty to apply (Order 6).
The respondents applied for leave to appeal against the single judge’s decision to the Court of Appeal, submitting that it was impossible to comply with Order 3; namely, the initial contractor declined to perform the works and no other contractors indicated they could so for the initially quoted amount, and the proposed scope of works was now different. The Court refused leave to appeal but noted that a change in the scope of works due to difficulty in compliance was within the contemplation of Order 6.
Pursuant to this liberty, the appellants applied to vary Order 3 so that the remediation be conducted in accordance with a revised proposal, and that should their expert engineer note any practical difficulties, reasonable variations to the precise posts or beams to be remediated occur. The respondents submitted that the fence was at risk of collapse and should be replaced in its entirety.
Held, per Bleby J, varying Orders 3 and 4:
1.There is no sound basis on which to conclude that the fence would collapse on implementation of the revised proposal (at [53]).

2. The orders of the single judge are amended in the terms sought on the application (at [66]).
Roennfeldt & Anor v Wyness & Anor [2022] SASC 95; Wyness v Roennfeldt [2021] SAMC 59; Wyness v Roennfeldt [2023] SASCA 77, discussed.

ROENNFELDT & ANOR v WYNESS & ANOR (No 2)
[2024] SASC 96
Civil - Application

BLEBY J: This is an application for variation of orders made by a single judge on appeal from a Magistrate. The proceedings concern a fencing dispute.
The matter has had a long and increasingly tortured history. Judgment was given in the Magistrates Court in 2021.[1] The single judge on appeal from that decision summarised the background to the litigation in the following terms:[2]
[Mr and Mrs Roennfeldt] own and live in a property at Marlborough Street, Brighton. [Mr and Mrs Wyness] own and live in a neighbouring property located in Seaview Terrace, Brighton.
[The Wynesses] have resided in their property since 2010. [The Roennfeldts] 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 Roennfeldts] rendered and painted the blue board on their side of the fence. [The Wynesses] removed the blue board from their side and replaced it with a foam material that was subsequently rendered.
[The Wynesses] 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 Wynesses] 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 Wynesses’] side. For that reason, they were concerned about the safety of their children.
[The Roennfeldts] 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 Roennfeldts] 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 Wynesses].
At some point thereafter it became apparent that the fence was deflecting eastward away from the land of [the Wynesses] towards the land of [the Roennfeldts]. [The Wynesses] instituted proceedings in negligence in the Magistrates Court in which they pleaded, amongst other matters, that [the Roennfeldts] 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 Roennfeldts] denied that they had been negligent. They contended that the fence was stable. If there was any instability it had been caused by [the Wynesses] negligently modifying their side of the fence and undertaking other works on their property. On that basis, [the Roennfeldts] 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 Roennfeldts] in relation to the increased height of the fence or its surface treatment was negligent. [The Wynesses] had also not negligently caused any instability in the fence.
[1] Wyness v Roennfeldt [2021] SAMC 59.
[2] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [4]-[10].
The course of proceedings before the Magistrate was summarised in the Court of Appeal’s reasons for refusing the Wynesses’ application for leave to appeal from that decision:[3]
[3]    Wyness v Roennfeldt [2023] SASCA 77 at [2]-[7].
The proceedings were also brought under the Fences Act 1975 (SA). The magistrate’s determination of the matter under that Act became the subject of [the Roennfeldts’] appeal to the single judge and, now, the application for leave to appeal before this Court.
Both [the Wynesses] and [the Roennfeldts] adduced expert engineering evidence. The magistrate directed that the experts prepare a joint report. The experts disagreed in significant respects but agreed that there was a deflection in the fence as described in the joint report. The magistrate found that the fence was not an adequate fence within the meaning of s 12 of the Fences Act. The experts agreed that the footings had not been constructed in accordance with the contractor’s quote. Some of the footings were 150-200 mm in diameter, rather than the quoted 300 mm. The footings likely had not been installed to the quoted dept of 600-700 mm. The experts agreed that the footings were inadequate. The magistrate was unable to reach any conclusions about the cause of the fence’s current instability but considered it was sufficient for the purpose of the proceedings to find that the footings were inadequate.
The experts gave competing evidence as to what was required to rectify the inadequate fence. Mr Deek was the expert called by [the Wynesses]. His view, for which [the Wynesses] contended, was that the fence should be removed and replaced. [The Wynesses] had a quote 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, and $25,974 for a fence of that type but 2.4 m in height. The quote for a 1.8 m high Good Neighbour Colorbond fence, as an alternative, was $1,650, plus $7,250 for removal of the existing fence on the side of the privacy screen facing [the Roennfeldts’] property.
Mr Magryn was called by [the Roennfeldts]. He preferred a course by which the faulty fence would be rectified. As the primary judge characterised his evidence:[4]
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 Roennfeldts] had obtained a quote of $4,500 for the work involved in lifting the decking and the pool fence.
The magistrate determined the matter in favour of the alternative proposal by [the Wynesses], that is, that the fence be removed and a Colorbond fence with a height of 1.85 m on the applicants’ side (to accommodate the raised timber deck) be installed in its place:[5]
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 Roennfeldts] 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 Wynesses] 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.
(Footnotes omitted)
The magistrate noted that [the Roennfeldts] were entitled to choose a fence of better quality, but that in the absence of agreement, [the Wynesses] would be only liable to contribute half the minimum cost of erecting an adequate fence. The parties would be able to improve their own side of the fence, provided that it did not result in damage. The fence was to be freestanding.
[4]    Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [16].
[5]    Wyness v Roennfeldt [2021] SAMC 59 at [30].
As indicated above, the Roennfeldts appealed against the magistrate’s decision to a single judge of this Court. The judge on appeal described their complaints as follows:
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.
The judge determined to hear further evidence from the experts and make final orders. He formed the following conclusions, as summarised by the Court of Appeal:[6]
[6]    Wyness v Roennfeldt [2023] SASCA 77 at [12].
·the judge found the evidence of Mr Magryn to be more persuasive than that of Mr Deek. Mr Magryn had thought through the issues and applied his skills to reach a practicable solution. Mr Deek, on considering Mr Magryn’s alternative proposal, had conceded that the principal barriers had been overcome and relied mostly on a series of minor objections as a basis of opposition to the revised rectification proposal;[7]
[7]    Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [137].
·Mr Deek’s evidence did not support the negative findings by the magistrate in relation to ‘incorporation or attachment to existing, inadequate elements’. Mr Deek agreed that the revised proposal effectively addressed his concern about the inadequacy of the existing piers and posts;[8]
[8]    Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [138].
·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 did not provide a basis to reject the proposed remediation;[9]
·Mr Deek’s concern about access through the neighbour’s property was met by s 18 of the Fences Act;[10]
·Mr Deek’s evidence about difficulty in gaining access to bore some of the five holes required for the footings raised a practical problem of prime concern. In this regard, the judge concluded:[11]
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.
·galvanised steel could be used to remove the risk of rotting of timber cross beams over years;[12]
·Mr Deek overstated the risk of damage to the fence in propping it up during remediation;[13]
·only Building Rules consent would be required, not Development Plan consent;[14]
·importantly for present purposes, the judge did not consider there to be any substance in Mr Deek’s concern about a lack of expertise of fencing contractors to carry out the revised remediation works. Mr Magryn did not propose to use an ordinary fencing contractor. He was confident, based on his experience, that Complete Underpinning would be able to perform the work;[15] and
·the aggregate cost of Mr Deek’s proposal based on the quotes provided was at least $22,712. That did not include the cost of replacing the respondents’ plants or the cost of concrete sleepers. It could be expected that the costs would have increased since the quotes in June 2021. As to Mr Magryn’s proposal, it was probable that the price of $16,000 with 10 per cent allowance for unforeseen contingencies will have increased also. It would also be increased by the use of galvanised steel rather than timber for the cross members, and the greater depth required of five new post holes and footings. However, the judge concluded that the cost of the proposed remediation would still be substantially less than the total cost of installation of a new Good Neighbour Colorbond fence.
[9]    Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [141].
[10] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [142].
[11] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [144]-[145].
[12] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [146].
[13] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [148].
[14] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [149].
[15] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [150].
The judge allowed the Roennfeldts’ appeal and, relevantly, made the following orders:[16]
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.
[16] Roennfeldt & Anor v Wyness & Anor [2022] SASC 95 at [154].
The Wynesses applied to the Court of Appeal for leave to appeal against the decision of the single judge. They also sought an extension of time to appeal, for reasons bound up with the grounds of appeal, in that those reasons depended on matters said to have arisen since the judgment on appeal. The grounds of appeal were as follows:
1.In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95:
a. Complete Underpinning have declined to perform the works as ordered; and
b. No other contractor has indicated a preparedness to perform the works as ordered other than for more than the sum quoted by Complete Underpinning;
the Honourable Justice Parker erred at [150]-[152] in finding that there was no substance to the concern of lack of expertise of fencing contractors to carry out the proposed work and that the cost of the proposed work would be substantially less than the total cost of installation of a New Good Neighbour Colorbond fence.
2.In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95, the expert for the now Respondent has proposed a scope of works which differs from the works as ordered, the Honourable Justice Parker erred at [137] in preferring the proposal put forward by the expert for the now Respondent.

The Wynesses sought to adduce evidence to the following effect on the appeal. The reference to Mr Carpenter is a reference to the Wynesses’ solicitor:[17]
·part of the appeal judge’s rationale for finding in favour of the respondents was that the cost of rectification was cheaper, in that Complete Underpinning provided a quotation of $18,800. Mr Carpenter is advised by the appellants that ‘a quotation to completely replace the fence was in the vicinity of $30,000 which sum included demolition costs’;
·Mr Carpenter is advised by the appellants that Complete Underpinning did not inspect the property prior to providing the quotation. This appears to have been the subject of comment by Mr Deek at paragraph [13] of the joint report. Mr Carpenter then opines that the quote by Complete Underpinning ‘could be seen as misleading’;
·Mr Magryn has been unable to secure a quotation from qualified trades to perform the works in accordance with the orders of the appeal judge. The only quotation received from trades who have viewed the site and can perform the works in accordance with Parker J’s orders comes to $38,434.00. Mr Carpenter then makes the submission that this ‘demonstrates that complete replacement on the fence is the most financially sound and viable option’;
·Mr Carpenter has been advised by Mr Deek ‘and verily believe[s] to be true’ that the rectification of the fence is not a viable option and that complete removal is the only viable option.
[17] Wyness v Roennfeldt [2023] SASCA 77 at [17].
The Court of Appeal refused leave to appeal. It is not necessary to traverse here its reasons for doing so. Relevantly, the Court observed that the single judge on appeal had anticipated difficulty in complying with the orders, hence Order 6, above. It said:[18]
A change in the scope of works regarding the posts that are to be remediated is well within the contemplation of this liberty, as is any other change to the scope of works. The respondents have undertaken to ask that the matter be called on before the appeal judge pursuant to the liberty to apply. Whether that is to be heard by the appeal judge or another judge, given that the appeal judge has retired, but noting s 13A of the Supreme Court Act 1935 (SA), can be addressed administratively.
[18] [2023] SASCA 77 at [48].
The appeal judge had, by then, retired. The Roennfeldts’ eventual application pursuant to the liberty to apply was allocated to me.
The application to vary the orders of the single judge
The Roennfeldts apply to vary Orders 3 and 4 of the judge’s orders. The final form of the variation that they seek reads as follows:
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 Revised proposal numbered 16300 prepared by Magryn Engineering Consultants dated 5 December 2022 as revised in his affidavit FDN 39 ~~May 2020~~ save and except that:
~~(a)     The five new footings are to be excavated to a depth of 1.65m 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.~~
(c)     Reasonable variations to the precise posts or beams to be remediated may occur at the direction of Mr Magryn due to any access or practical difficulties that may arise on site as long as five posts are remedied.
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~~ AllenCo 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.
On 29 November 2023, I made orders requiring the parties to file and serve any further affidavit evidence or expert reports, and any affidavits or reports in response. I indicated that I expected that the experts would confer before preparing their responding reports to work out the matters on which they were agreed, the matters on which they disagreed and, where applicable, why they disagreed. Affidavit evidence was filed, together with a ‘Joint Engineers Report’ of the experts, Mr Magryn and Mr Deek. However, not all of this evidence was admitted. In order to explain this, it is necessary to turn to the issues that were joined on the application.
The parties joined issue by way of the affidavit evidence and short written openings. As identified above, the Roennfeldts sought a variation of Order 3 of the judge’s orders, based on a revised proposal by Mr Magryn. The proposed revised scope of works was exhibited to Mr Magryn’s affidavit. Critically, this involved a change in the fence posts that were to be remediated, although it remained necessary, in Mr Magryn’s opinion, to remediate five posts.
The Wyness’s attitude to the variation application was very different. In a short, written opening, they submitted:
What was ordered by Parker J cannot now be constructed. The alternative of replacing the fence with a good neighbour fence would be less expensive than rectifying the fence…
Replacing the fence was the relief that the Wynesses had obtained in the Magistrates Court, lost on appeal before the single judge and in respect of which they had failed to obtain permission to appeal to the Court of Appeal. Rather than proposing an amendment to the judge’s order, however, they took the position that the liberty to apply granted by the judge permitted them to agitate again for a complete replacement.
The Wynesses’ written opening supported this approach by reference to the following propositions, which on their case was established by the evidence:
·the fence had undergone excessive movement since the judgment;
·the fence was structurally unstable and unsafe and, in the absence of props holding it up, would fail and collapse;
·the northern connection of the fence had already failed, demonstrating that key assumptions in Mr Magryn’s proposal that led to the orders made by Parker J were incorrect; and
·the fence could not be underpinned without risk of collapsing.
At the hearing, counsel for the Wynesses indicated that there were two aspects of the judge’s orders that were unable to be complied with. One was that the scope of works ordered by the judge was unable to be followed. There would need to be different posts remediated and there would be consequential changes upon that. The other was that Order 4 had specified that Complete Underpinning was to perform the remediation works, based on their quote. Complete Underpinning had since withdrawn their quote and was no longer prepared to do the work.
The withdrawal by Complete Underpinning
On the circumstances of Complete Underpinning’s withdrawal of its quote, the Roennfeldts tendered an affidavit of Mr Grant Dempster of Complete Underpinning. The Wynesses relied on an affidavit of Mr Wyness, notwithstanding that they declined to cross-examine Mr Dempster on his affidavit. Counsel for the Roennfeldts did cross examine Mr Wyness. However, in written closing submissions, counsel for the Wynesses submitted:
It is submitted that the issue of why Complete Underpinning will not undertake the works is not relevant to the Court’s determination. The Respondents do not challenge that the new proposed contractor intends to undertake the works if so ordered by the Court. It is submitted, though, that this does not assist the Court in its determination. The Court did not have before it any direct evidence from the new proposed contractor as to their understanding of the Proposed Variation and their ability to perform it. It is respectfully submitted, therefore, that the Court should assess whether the Proposed Variation is viable on the basis of the expert evidence that it heard from Messrs Magryn and Deek.
Given that it was the Wynesses who had raised the withdrawal of Complete Underpinning’s quote as a reason for why the judge’s orders could not be complied with, I take this submission to be a withdrawal from this field of contest, following the testing of Mr Wyness’s evidence. The reasons why Complete Underpinning withdrew its quote is consequently no longer relevant to whether the orders can be complied with. Further, the Wynesses do not now submit that the proposal that the work be undertaken by a different contractor constitutes any obstacle to remediation of the fence, rather than replacement.
The reasons for Complete Underpinning withdrawing its quote remains potentially relevant to the question of costs. I address that issue later in these reasons.
The expert evidence
The remaining issue, on the Roennfeldts’ application to vary the orders, is whether the proposed variation is viable, or whether developments since the orders were made now mean that it is impossible to remediate the existing fence, and that replacement with a new fence is the only viable solution. In this regard, the Roennfeldts relied on expert evidence of Terence Magryn. The Wynesses relied on the expert evidence of Bassam Deek.
The Roennfeldts tendered Mr Magryn’s affidavit of 21 December 2023, without objection. Mr Deek’s report, on the other hand, was subject to objection, on the basis that parts of it canvassed issues that had been the subject of determination before the single judge. In the event, counsel for the Wynesses tendered parts of Mr Deek’s report only.
The experts also prepared a joint expert report signed by both Mr Magryn and Mr Deek. However, this report effectively addressed, largely through the expression of disagreement, an amalgam of issues properly raised on the application and issues raised by Mr Deek already the subject of determination. I therefore marked this joint report for identification but did not receive it into evidence.
The affidavit or report of each expert having been tendered (Mr Deek’s only in part), the two experts then gave concurrent oral evidence. This followed, largely, a pattern of each being asked the same question in turn, with the second witness in each case being given an opportunity to agree or disagree with the answer given by the first, and to explain their answer.
I am satisfied that both expert witnesses gave evidence honestly and in accordance with their professional judgments. However, ultimately, for the reasons which follow, where their differences became important, I generally preferred the evidence of Mr Magryn in key respects. That is not to say that some of Mr Deek’s observations did not have force. However, Mr Deek’s evidence contained some inconsistencies in material respects and on account of those inconsistencies, I am not prepared to accept his ultimate conclusion.
Mr Magryn’s affidavit evidence was, relevantly, to the following effect:
·the fence has a bow, to which he engineered an initial solution. Effectively, the foundations for the fence are inadequate as the footings were not built to specifications;
·the footings can be repaired on site. There is no need to start again by demolishing the existing fence and building a new one. It would save work and money to repair the concrete piers underneath the existing posts;
·he originally proposed to upgrade posts 2, 4, 6, 8 and 10;
·his evidence detailed the works that would be required for this upgrade;
·given that access to some footings may be difficult, and the existence of improvements on the Wynesses’ side, there was an alternative solution that kept, in his view, ‘within the spirit and intention of the orders’ made by the single judge. Specifically, it did not matter which posts were rectified. Any difficulty in accessing certain footings, such as Posts 2 and 8, could be overcome by selecting different posts;
·five posts needed to be remedied. It does not matter which five;
·he noted Mr Deek’s agreement that it does not matter in terms of the engineering principles which five posts are remedied;
·he had prepared a revised scope of works for this alternative solution;
·on 20 September 2023, he attended at the site again to inspect the fence having regard to what he had been told was suspected fence tampering by Mr Wyness. As a matter of caution, he advised that props be installed. This was done;
·on 13 December 2023, he attended at the site again to inspect the fence, especially given that there had been strong winds on 11 December 2023. The fence had not moved at all;
·his opinion had not changed in that he recommended that the fence be underpinned as he had previously advised.
Mr Magryn also gave evidence that another construction firm, AllenCo Constructions, were prepared to carry out the underpinning works and had provided a quote.
The effect of those parts of Mr Deek’s expert report that were tendered was as follows:
·he identified cracks in control joints along the fence, which he described, photographed and attached in his report, as well as a longitudinal vertical crack in the southernmost fence bay;
·based on recent observations and the current conditions of the fence, and when compared with previous inspections, the fence ‘has undergone excessive movement which has manifested in a large vertical/rotational displacement and horizontal out of plane bowing’;
·most professionals consider a fence to be defective if it deviates from the vertical by more than one degree;
·the fence here has deviated to approximately eight degrees from the vertical alignment;
·in his opinion the fence in its current conditions ‘is structurally unstable and unsafe and … in the absence of props, the fence will fail and collapse’;
·considering the large movement of the fence (leaning out, rotation, horizontal and vertical displacement), various members of the fence structure will be subject to uneven and high stresses which would have caused irreparable damage and deformation. In support of this opinion, he referred to evident damage and distress to the fence cladding, due to the concentrated high stresses at the fixing points;
·as to Mr Magryn’s proposal to adjust the fence to vertical by adjusting the props, Mr Deek’s opinion was that ‘exerting any undue pressure on the fence in its current conditions, during the proposed rectification works, will cause it to break-up and collapse’;
·as to certain of Mr Magryn’s opinions, Mr Deek commented as follows:
a.he disagreed that the fence had been propped as a precaution prior to remediation. In his view, if the props were removed the fence would fail and collapse;
b.he disagreed with Mr Magryn’s statement that no change was apparent to the lean of the fence between the recent previous inspection and that of 13 December 2023. Mr Deek said that in his opinion, ‘based on my recent observations of the current conditions of the fence, on 13 December 2023, and when compared to FMG’s observations during previous inspections, that the fence has undergone excessive movement…’;
c.as to Mr Magryn’s statement that the fence had been subjected to significant winds and had shown no worsening of lean, he disagreed. He said that the records of the Bureau of Meteorology recorded the wind as east-south-east, that is, as acting in a direction opposite to that of the fence deviation;
d.as to Mr Magryn’s statement that the fence would not collapse while propped, he was unable to agree or disagree.
These responses caused me to exercise some caution with respect to the evidence of Mr Deek. As to his comment in a., it was Mr Magryn that caused the props to be placed. Mr Deek’s opinion on its face appears to disagree with why they were placed. It may be that he considered the necessity to be greater than did Mr Magryn, but it is curious that he should challenge Mr Magryn’s reasons for doing so.
As to b., Mr Deek appears to have misunderstood Mr Magryn’s statement. Mr Magryn was speaking of the period between 13 December and a more recent inspection. Mr Deek appears to be referring to the period before 13 December 2023. There is no contest that the fence had bowed further in that period.
As to c., this statement was argumentative. While Mr Deek said that he disagreed with Mr Magryn’s statement about the wind having no effect, his stated reason appears to have been that his was because the wind was not blowing in a direction likely to have that effect. That appears to be more offering a reason why the wind would not have had that effect, not a disagreement that it had no effect.
The following matters emerged from the concurrent evidence given by Mr Magryn and Mr Deek at the hearing.
Mr Magryn said that he had experience of using AllenCo, whom he found to be resourceful in ‘getting things done’ in difficult projects. Mr Deek had no experience of AllenCo.
In cross-examination by counsel for the Roennfeldts, Mr Deek agreed that the current degree of movement in the fence did not mean that underpinning could no longer be done from an engineering perspective. However, he still did not agree with underpinning being the solution.
Mr Deek agreed that it was appropriate to have the props in place temporarily, although he said that he would not rule out completely that the fence might still collapse. As to this, Mr Magryn said that given enough time, the fence would collapse. However, he did not think that the collapse would be imminent if the props were removed. He said that the fence would be propped during the rectification work and expressed the opinion, in consequence, that there would be no risk that the fence would fail and fall during rectification works.
When Mr Deek was asked about whether he thought the fence would collapse during the rectification works, his answer was non-responsive. Rather, he said that he believed that the fence would experience a ‘huge movement, disconnection of members’. He said that putting pressure on the fence would dislodge various members within the fence. Then, when pressed, he said that the additional movement (that has occurred more recently) will eventually cause the fence to collapse.[19]
[19] My emphasis.
In response to a clarifying question from me, Mr Deek did then say that the fact that the fence had moved up to 300mm ‘would put a great danger in terms of the fence possibly collapsing once the props are removed’. I note here Mr Deek’s use of the word ‘possibly’, as compared to the firmer opinion he expressed in writing, outlined above, that the fence would collapse.
In further answer to a question from me, Mr Deek confirmed that the present bow in the fence is something that he predicted. Mr Magryn, in response to the same question, said that it was difficult to predict, but that it was not surprising that it had moved to some extent, hence his placing the props in place. He agreed that if the props were removed, and no remedial work done, then the movement would increase and the fence would eventually collapse.
On the basis of this concurrent evidence, I am satisfied that if the props were removed, and no remedial action taken, the fence would eventually collapse. I am not satisfied that the fence would collapse immediately. I consider Mr Deek’s statement to this effect to be an exaggeration, which he qualified in his oral evidence.
The concurrent evidence then moved to damage to the cladding apparent in the photographs, specifically photograph 11 in Mr Deek’s report. Mr Magryn considered that the damage had occurred from the top of the fence, that is, as a vertical impact, and he did not expect the damage to be associated with the lateral movement of the fence. Mr Deek disagreed and said he thought it was the result of lateral movement.
I am unable to make a finding as to the cause of that damage. The photos were taken from close up and there seemed to be a disagreement as to where the damage in question was located. Mr Deek’s opinion that the damage was at a fixing point that was pulling the cladding apart. Mr Magryn was firm that the damaged section had dropped down, not moved out. In any event, there are two further observations to be made. First, Mr Deek accepted that this damage could be fixed.

Secondly, whatever the cause of the damage, both Mr Magryn and Mr Deek agreed that this damage would not stop the rectification works from being carried out. I find that the damage to the cladding in photograph 11 is not such that would prevent rectification.
Mr Magryn disagreed with Mr Deek’s opinion that the proposal to adjust the fence to vertical by adjusting the props would amount to undue pressure causing the fence to break up and collapse. He explained the conglomerate of different sections comprising the fence, which created a situation that the fence was quite flexible. He said that on this account, the fence would push back up quite easily and that this would not require excessive force.
Mr Magryn accepted that pushing the fence back would cause some damage to the cladding, requiring repair work and painting. However, he did not expect any serious damage to the structure.
Mr Deek took a very different view. He said:
By applying that pressure – and I’m not talking about a great pressure, we’re talking about sheets and top hats, like less than 1mm thick. So every joint of the cladding will open up. Every top hat will deform and will end up causing more harm to that fence than what we are already looking at. And when Mr Magryn says ‘I don’t expect any structural damage’, well there are no structural members to the fence left. We’re removing the footings; this is a structural member. We’re adding a new post; that is the structural member.
This answer appeared to me to conflate that part of the repair that involved the underpinning work and the posts on the one hand, and the necessary damage that would be caused by moving the fence back to vertical, on the other. I did not find it helpful. Critically, however, and bearing in mind that the starting point of this round of questioning was whether the fence would break up on being moved to vertical, counsel for the Roennfeldts asked first Mr Deek and then Mr Magryn the following question, with the answers that followed:
Q.If there was damage that would be occurring whilst it was carried out, it can be fixed through the process of patching and rendering at the end of the job.
A.Yes, it can be fixed.
Q.And Mr Magryn, do you agree that any damage caused during the process of doing the underpinning to the fence can be fixed as part of the patch-up works at the end.
MR MAGRYN
A.Yes, I do.
I consider that Mr Deek’s answer here undermined his stated opinion that the fence would collapse when righted to vertical.
Counsel for the Wynesses challenged Mr Magryn heavily on his reason for putting the props in place, suggesting that this was done on account of the risk of collapse. Mr Magryn said it was more about getting things done in a timely manner.
Counsel then put to Mr Magryn Mr Deek’s opinion that by reason of the movement, there was now a greater disconnection in the members of the fence. Mr Magryn said that he did not think there was a disconnection of the members in the fence. He said that the fence was composed of a lot of members screwed together. He said he had not seen any evidence of disconnection of those members. Mr Deek, by contrast, said that there must necessarily be a disconnection.
This represented a clear difference of opinion. Mr Deek considered that a disconnection was inevitable; Mr Magryn considered that the members would restore torsionally. That is, he did not expect that the bending had occurred past the point of yield in the steel. Steel is elastic. Everything would go back to how it was. Mr Deek considered that they would not go back, that steel was not elastic.
This disagreement seemed to centre around the risk of the steel members having turned past the point of yield. I understood Mr Deek’s opinion to be based on the members necessarily having passed the point of yield. Mr Magryn considered they would not have gone so far, based on the bowing. He accepted that he could not know, as he could not see, if any of the members were damaged. Having said that, he also accepted that the risk of the fence breaking up on his rectification proposal was higher than it had been. However, he maintained that he did not think it would break up and collapse during the works.
This is to be contrasted with Mr Deek’s opinion that the fence would break up and collapse, on the basis of the damage that had increased since the judgment.
I reject the absoluteness of Mr Deek’s evidence. I find that Mr Magryn was prepared to build in factors of risk to his opinion that the fence would not break up and collapse. He accepted that it was possible that some damage had occurred, but he could not know. Mr Deek, by contrast, spoke in absolutes in circumstances where the true state of the members could not be known. I reject Mr Deek’s evidence for that reason. I find that while there is a risk that there has been some level of damage to the members, there is no sound basis on which to conclude that the fence would break up and collapse on implementation of the rectification works proposed by Mr Magryn.
I am supported in this conclusion by Mr Deek’s concession, made earlier, that the damage to the cladding could be fixed as part of the rectification works. I am further supported here by my conclusion that Mr Deek’s opinion that the fence would collapse if the props were removed is not sustained – that even he ultimately qualified this opinion with the word ‘eventually’. That is to say, in my view Mr Deek tended to speak in absolutes in circumstances where the various predictions could not helpfully be expressed in this way. Consequently, I prefer the evidence of Mr Magryn to the extent that the experts differed.
In my view, while there is always some degree of risk, I do not consider that the risk of the fence collapsing in the course of the rectification works is as Mr Deek has described it. I accept Mr Magryn’s evidence in this regard.
For these reasons, I am prepared to vary the orders of Parker J in the manner sought by the Roennfeldts.
Further orders and costs
In their final written submissions, the Roennfeldts also sought an order in the following terms:
Further, the parties are not to threaten AllenCo its members, employees or contractors, or interfere with their carrying out the work contemplated by these orders.
The Roennfeldts sought this order on account of the evidence of Mr Dempster, of Complete Underpinning, in his affidavit of 22 December 2023. This evidence concerned the behaviour of Mr Wyness during a telephone conversation on 11 November 2022, when Mr Dempster was attempting to make a time to commence the underpinning works. Mr Dempster’s evidence was that he had first rung Mrs Abbey Wyness, who told him to call her husband. Mr Dempster’s evidence was that both Rupert and Abbey Wyness were rude and hostile toward him. As to the conversation with Rupert Wyness, Mr Dempster’s evidence was as follows:
10.During the conversation, Rupert:-
10.1 threatened that I would be the next one to end up in court.
10.2 warned me that I’m putting my neck on the line,
10.3 told me he thought I did not have the skill set to complete the jog;
10.4 told me that the engineering plans were wrong; and
10.5 told me that I would have to do the underpinning works exactly to specifications, which would not work.
Mr Dempster’s evidence was that it was on account of these statements and threats and his fear of the risk of harm to himself and his family that he withdrew Complete Underpinning’s quote.
Even without making any further findings of fact, I am not prepared to make an order in the terms sought by the Roennfeldts. Such an order would require, in effect, that the Wynesses do not behave unlawfully. Were an order to be somehow condensed to prohibit the Wynesses from engaging in the behaviour of the kind the subject of Mr Dempster’s evidence, this would effectively invite supervision by this Court of the minutiae of the conduct of the parties and AllenCo.
If Mr Wyness engages in threatening behaviour towards any member of AllenCo or engages in behaviour that obstructs the remediation in accordance with the orders, either AllenCo or the Roennfeldts, as the case may be, will have remedies available to them.
That is not the end of the consideration of the allegations against Mr Wyness. The Roennfeldts have also applied for the costs of this application on an indemnity basis, and for their costs of the Wynesses’ application for leave to appeal to the Court of Appeal. They stated the basis of these applications as follows:
As Mr and Mrs Wyness have been unreasonable in their communications in insisting that posts 2, 4, 6, 8 and 10 be remedied rather than any alternative (noting the findings that it doesn’t matter which of the posts are remedied) purely to mount a tactical argument that there are difficulties accessing posts 2 and 8, and given their threats to contractors or difficult manner in dealing with contractors …
Given that the application for indemnity costs depends on the evidence of Mr Dempster and Mr Wyness, it will be necessary that I make findings on that evidence. However, as I observed above, the Wynesses submitted in their closing written submissions that it was not necessary that I make findings about the reasons for Complete Underpinning’s withdrawal, as they did not challenge that AllenCo were prepared to undertake the works.
I have accepted that it was not necessary to make findings on these aspects of the evidence for the purposes of the substantive application. However, the reasons for Complete Underpinning’s withdrawal are potentially relevant to the Roennfeldts’ costs application. That costs application having only been made in the Roennfeldts’ final written submissions, it is appropriate that the Wynesses have an opportunity to make submissions in response, including as to the findings about their conduct that I should make on the evidence before me.
I will give the Wynesses an opportunity to make submissions relevant to the Roennfeldts’ costs application.
Conclusion
The Roennfeldts have established that the orders of the judge should be amended in the terms sought on the application. I vary Orders 3 and 4 to read as follows:
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 Revised proposal numbered 16300 prepared by Magryn Engineering Consultants dated 5 December 2022 as revised in his affidavit FDN 39 ~~May 2020~~ save and except that:
~~(a)     The five new footings are to be excavated to a depth of 1.65m 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.~~
(c)     Reasonable variations to the precise posts or beams to be remediated may occur at the direction of Mr Magryn due to any access or practical difficulties that may arise on site as long as five posts are remedied.
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~~ AllenCo 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.
I will hear the parties as to any consequential orders, including as to costs.

[2024] SASC 96

25 July 2024