Roennfeldt v Wyness (No 2) - [2024] SASC 96

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,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] SASC 96
Decision Date: 25 July 2024

CaseChat Overview and Summary

In the matter of Roennfeldt v Wyness (No 2), the dispute between the parties centred around the repair and maintenance of a boundary fence between their respective properties. The case was heard in the Supreme Court of New South Wales, where the Roennfeldts sought to vary the previous orders made by the court, arguing that the existing fence had not been adequately repaired and that the Wynesses had failed to comply with the court's orders. The Wynesses, on the other hand, contended that the fence had been repaired in accordance with the court's orders and that the Roennfeldts' application was an attempt to circumvent the previous determinations.

The primary legal issue the court was required to decide was whether the existing fence could be remediated as proposed by the Roennfeldts, or if replacement with a new fence was the only viable solution. This issue hinged on the expert evidence presented by both parties, as well as the interpretation of the previous court orders. The court had to assess the credibility and reliability of the expert evidence, and determine whether the proposed variation to the orders was viable and in line with the spirit and intention of the previous determinations.

In reaching its decision, the court found that both expert witnesses gave evidence honestly and in accordance with their professional judgments. However, the court generally preferred the evidence of Mr Magryn, the expert witness for the Roennfeldts, due to some inconsistencies in Mr Deek's evidence. The court found that the existing fence could be remediated by repairing the inadequate footings, rather than replacing the entire fence. The court therefore varied the previous orders to allow for the remediation of the fence in accordance with the Roennfeldts' proposed scope of works, subject to certain modifications. The court also ordered that the parties grant access to Complete Underpinning AllenCo and its members, employees, and contractors for the purpose of carrying out the required work.

The final orders of the court, subject to any consequential orders including costs, were to vary Orders 3 and 4 of the previous determination to allow for the remediation of the fence in accordance with the Roennfeldts' proposed scope of works, with certain modifications, and to grant access to Complete Underpinning AllenCo and its members, employees, and contractors for the purpose of carrying out the required work. The court also gave the Wynesses an opportunity to make submissions relevant to the Roennfeldts' costs application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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