Tallon v Proprietors, Metropolitan Towers BUP 5157

[1993] QCA 492

IN THE COURT OF APPEAL	[1993] QCA 492
SUPREME COURT OF QUEENSLAND

Appeal No. 125 of 1993

Brisbane

Before The President

Mr Justice McPherson

Mr Justice Pincus

[Tallon v. Metrolopolitan Towers & Ors.]

BETWEEN:

STUART DUDLEY TALLON

(Applicant) Appellant

- and -

THE PROPRIETORS OF METROPOLITAN TOWERS
BUILDING UNITS PLAN NO. 5157

(Respondent) First Respondent

- and -

RONALD JAMES McCULLOUGH, MARGARET DAWN McCULLOUGH,
ALBERT SUSAN and ALBA SUSAN

(Respondents) Second Respondents

- and -

IAN FRANCIS MURDEN and CHRISTINE MURDEN

(Respondents) Third Respondents

- and -

CAMCREST PTY LTD

(Respondent) Fourth Respondent

- and -

ARNOLD FREDRIC NATZKE and PEGGY HILDA RAE NATZKE

(Respondents) Fifth Respondents

JOINT REASONS FOR JUDGMENT BY THE PRESIDENT AND McPHERSON J.A.

Judgment delivered the Sixth day of December 1993

This is an appeal from an order dismissing an application on the basis that the appellant was precluded by issue estoppel from obtaining the relief which he claimed. Although the appellant primarily based his claim upon s.184 of the Property Law Act 1974, he also relied upon R.S.C. 0.45 r.1. The trial judge found the estoppel by reference to which he dismissed the appellant's claim in the decision delivered by W.B. Campbell J. on 25 March 1981 in Originating Summons No. 733 of 1980, a proceeding brought against the appellant by the respondents' predecessor in title.

The appellant and the respondents are adjoining property holders in Barolin Street, Bundaberg. The appellant owns a block of shops and the respondents own a hotel. The northern boundary of the appellant's property abuts the southern boundary of the respondents' property. Part of the first floor of the respondents' property encroaches onto the appellant's property and, according to the appellant, there are also one or more ground floor encroachments along the boundary referred to.

Initially, the two properties were owned by one company, Bundaberg Brewing Co. Ltd. When the shops were built, they were constructed entirely within the then boundaries of the land now owned by the appellant. That structure included a cavity-brick wall along the northern boundary of the appellant's land. There are two "skins" of brick each four and one-half inches in width on either side of a cavity 2 inches in width, with another brick wall, also four and one-half inches thick, abutting hard against the southern "skin".

Later, while the two properties were still owned by the brewery, the hotel on the respondents' land was extended. The ground floor of the hotel was extended to abut onto and receive support from the northern wall of the shops, without the addition of any further wall on or near the boundary between the two blocks of land. Further, an additional storey was added to the hotel. The southern cavity-brick wall of this story was constructed directly above and onto the northern wall of the shops. There are also some window sills and windows which extend or open out in a southerly direction from the hotel's first storey southern wall.

The hotel and shops were sold by the brewery to Strofale
Investments Pty Ltd., which onsold the shops to the appellant.
Strofale has since converted the hotel to strata title under
the Building Units and Group Titles Act 1980; the first
respondent is the body corporate and the other respondents are
the present lot owners. It was Strofale's wish to convert the

hotel to strata title that gave rise to its original

application against the appellant in 1980.

W.B. Campbell J. said:

"The problems is this case have arisen from the fact that the applicant met with difficulties in having a building units plan registered under the Building Units and Group Titles Act 1980. The first respondent also desires to have a group titles plan registered under the Act in respect of his premises. The problem is that section 9(8)(a) of the last-

mentioned Act provides that every building units plan lodged for registration shall be accompanied by certificates of a licensed surveyor that the building shown on the plan is within the external surface boundaries of the parcel of land which is the subject of the plan. As I have said, the present situation is that the southern wall of the hotel is completely on the first respondent's land and there would clearly be difficulties in the applicant obtaining such a surveyor's certificate.

Considerable assistance leading to the resolution of the issues in this case was obtained from the evidence of the Registrar of Titles, Mr. G.S. Welldon. On the assumption that the boundary line between the two parcels bisects the cavity brick wall - in other words that the boundary line passes through the middle of the cavity - Mr. Welldon could see no reason why strata titles should not issue in respect of both buildings provided he could get a certificate for the surveyor that each building was within the boundaries of the parcel. He also agreed that he could not see any reason why a surveyor should not issue a certificate in those circumstances in relation to both the subject buildings. Mr. Welldon also could not see any difficulty in reciprocal easements of support being granted in such circumstances. I refer to section 8 of the 1980 Act which provides inter alia:

'Easements to or over lots may be
registered'."

After noting that the appellant and Strofale had given registered party wall easements to each other, by which each covenanted that such dividing or party walls should be used at all times solely for that purpose and as mutual support for the respective buildings, his Honour continued:

"I am satisfied that the hotel building encroaches on part of the first respondent's land. This is clearly so in respect of the first storey southern wall of the hotel building and I consider it is also the case in respect of the ground floor of the hotel. The southern ground floor wall which was erected when the shops were built and was solely on the land which is now owned by the first respondent must also, in my opinion, be treated as part of the hotel building.

The hotel building would not be complete without the presence of such wall and indeed the hotel building could not exist in its present form without the support of such wall."

After rejecting evidence that a certificate under sub-s.9(8)(a) of the Building Units and Group Titles Act would not be possible "if the boundary line between the two sets of premises was drawn so as to bisect the cavity wall", W.B. Campbell J. said:

"It is most desirable in the circumstances of this case that a decision be made which will have the effect of removing these encroachments.

As a matter of general principle encroachments ought to be removed and in the present case both parties recognise the problem although they appeared to have acted on somewhat erroneous surveying advice. It is undesirable here to order physical removal. There would be considerable costs involved and great physical damage to the hotel building. I do not think it feasible or practicable that the applicant be put in a position where it would have to build a wall on the southern end of its land, in effect within the present hotel boundary, so as to support the hotel building. It would be wasteful, extravagant and completely unnecessary for this to be done.

Section 185 gives very wide powers to the court on such an application and, in the circumstances, I propose to make the following orders. I will order that the boundary between the two premises be moved south by a distance of approximately five and a half inches so that it runs along the middle of the cavity between the cavity brick wall. The cavity wall will then become a true boundary wall. To this end I will order that the first respondent convey that parcel of land involving approximately five and a half inches on his northern boundary to the applicant for an estate in fee simple.

I will also order that both the applicant and the first respondent grant to each other reciprocal easements of support in relation to this wall.

...

... the applicant, undertook to remove the window sills and wing walls which presently extend a little further outwards on the southerly side of the existing first level wall. Consequently I will order that the applicant remove these encroachments, namely the window sills and the wing walls on the southern side of the first level wall.

I also propose to order that the applicant pay all the legal, survey and associated costs in relation to the transfer to it by the first respondent to the land to which I have referred, including all costs of the registration, and also in relation to the preparation and registration of the reciprocal easements of support. The conveyancing costs should include all costs of registration and transfer and if necessary payment for a balance title of the land remaining in the ownership of the first respondent and payment for the amalgamated title of the applicant land.

I express my view that if the boundary line is moved to where I have so directed and reciprocal easements of support are granted, a licensed survey could properly and lawfully give a certificate pursuant to s.9(8)(a) of the Building Units and Group Titles Act 1980 to the effect that each building is within the external surface boundaries of the parcel the subject of any building units plan which may be lodged for registration under that Act either by the applicant or the first respondent, or by their respective successors in title.

I also propose to make an order for the payment of compensation by the applicant to the first respondent."

His Honour then went on to fix the compensation payable by Strofale to the appellant at $1,000.00 and ordered Strofale to pay the appellant's costs, "limited to two days in court".

The boundary alteration which W.B. Campbell J. ordered did not entirely remove the encroachment by the hotel onto the appellant's property. The first floor encroachment extended more than five and one-half inches onto the appellant's property, that is extended past "the middle of the cavity-brick wall" which was constructed as the northern wall of the appellant's shops. Nonetheless, most likely influenced by his Honour's expression of opinion "that if the boundary line is moved to where I have so directed and reciprocal easements of support are granted, a licensed surveyor could properly and lawfully give a certificate pursuant to s.9(8)(a) of the Building Units and Group Titles Act 1980 to the effect that each building is within the external boundaries of the parcel ..", Strofale was able to obtain the necessary certificate and proceed to registration of the plan by which the hotel was converted to strata tile.

However, the appellant has not been so fortunate. He has
not been able to convert his shops to strata title because he
has not been able to obtain a surveyor's certificate that the
shops are within the external surface boundaries of his land.
The effect of the boundary adjustment order by W.B. Campbell J.
has been to create an encroachment by the northern "skin" of
the northern wall of the shops upon the respondents' land.
That "skin" is an integral part of the building which comprises
the shops, and is physically tied to the "southern skin" and
essential to the strength and stability of the shops' northern
wall.

In the circumstances, the appellant made the present application, by which he seeks that:

"i)(a) The respondents remove from the property of the Applicant, the wall of the first storey of their Building and/or Building Unit together with that part of the roof and appendages which presently encroach from the Respondents' property onto the adjoining land of the Applicant.

(b)The respondents transfer or re-transfer to the Applicant a strip of parcel land more particularly described as .154 metres wide for the full length of the North boundary of Lot 2 on Registered Plan 177482 and containing part of the wall of the shop on the Applicants property which is contiguous with and presently encroaches onto the property of the respondent at the ground floor level of the subject building.

ii) That the easements of lateral support No. 94786 Easement M in Lot 1 and G794787 Easement N in Lot 2 Registered Plan 183345 be extinguished."

It is convenient for present purposes to focus on Clause (1)(b), as the primary judge seems to have done.

As was stated at the outset, the appellant's claim was summarily dismissed, the primary judge holding that he had "no power to hear the application". Central to that conclusion was paragraph 8 of the appellant's defence to the 1980 application made by Strofale, which provided:

"8. The extension of the applicant's property towards the first Respondent's property as sought herein would prejudice the future development of the first Respondent's said property in that the first Respondent's building would not then satisfy the requirements set forth in section(8)(a) of the Building Units and Group Titles Act of 1980."

The primary judge said:

"It appears clearly from this that Mr Tallon's present concerns about the northern boundary of the shops were expressly pleaded and litigated. W.B. Campbell J. rejected the view of Mr David Stewart about the affect (sic) of his order on a surveyor's ability to issue a s.9(8)(a) certificate. That rejection can only be treated as based upon the opinion that, at law, the adding of the easement of support effectively enlarged the external surface boundary of the land so that the building was within that external surface boundary.

Minds may differ about the correctness of that view, but the words in the judgment can have no other meaning than the one I have attributed to them. Clearly, the impact of any change of the northern boundary of Mr Tallon's land upon the propriety of a surveyor issuing a certificate under s.9(8)(a) was raised in paragraph 8 of the defence. The answer was clearly given.

Whether the decision is right or not is not a matter for surveyors or engineers. It was a matter for the Full Court.

Mr Callinan Q.C. sought to sustain the correctness of the decision, but it does not seem to me that that is necessary. The certificate of title has been altered, pursuant to his Court's order, following a full consideration of the issues which Mr Tallon now seeks to raise. While it is true that Strofale is not a party here, the successors in title to Strofale are parties and the decision, being in respect to title to land, binds them as it did Strofale.

In my opinion, I have no power to hear this application. The application is dismissed with costs."

There is obvious force in his Honour's reasons, although it might be open to question whether W.B. Campbell J. really acted on the basis ascribed to him. Further, it is not correct to say, as his Honour did, that the original application by Strofale involved "a full consideration of the issues which Mr Tallon now seeks to raise".

So far as can be ascertained from the available material the previous application involved no consideration of the structural unity of the northern wall of the shops. Indeed, it is a reasonable inference that it did not do so; such a vital matter, which went to the foundation of W.B. Campbell J.'s conclusion that a boundary adjustment would allow the owner of the shop and the owner of the hotel each to convert his or its property to strata title, would not have been omitted from his reasons for judgment, especially since it would have contradicted, or at least thrown open to question, the opinion of the Registrar of Titles, which was regarded as of "considerable assistance", that "he could not see any reason why a surveyor should not issue a certificate in the circumstances in relation to both the subject buildings".

It is correct, as the primary judge noted, that "the impact of any change of the northern boundary of Mr Tallon's land upon the propriety of a surveyor issuing a certificate under s.9(8)(a) [of the Building Units and Group Titles Act in respect of the appellant's land] was raised in paragraph 8 of the defence". However, there is nothing to suggest that the issue thus raised was litigated by reference to the structural unity of the northern wall of the shops.

That fact has only been discovered after W.B. Campbell J.'s judgment was given and the orders which he made had been made. Further, that fact (which for the purpose of the present appeal must be assumed to be correct), if discovered in time, would have entitled the appellant to a judgment or decision in his favour dismissing Strofale's application that he transfer to it part of his land and thus part of his building; it is inconceivable that a boundary adjustment would have been ordered against the appellant if it had been understood that, in consequence, his building would encroach onto Strofale's (now the respondents' land) and he would not be able to convert his shops to strata title. It is obvious that W.B. Campbell J. made the order for a boundary adjustment because, on what was available to him, without evidence of the structural unity of the northern wall of the appellants' shops, he considered that the course which he was directing would not prejudice the appellant's ability to convert his shops to strata title.

In the circumstances, the structural unity of the northern wall of the appellant's shops northern wall is a fact "discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in his favour or to a different judgment or order": R.S.C. O.45 r.1. Accordingly, the Court or a Judge may grant "appropriate relief", and for that purpose "may direct such proceedings to be taken, and such questions or issue of fact to be tried or determined ... as may be just."

Contrary to the view which he expressed, the primary judge was not without "power to hear" the appellant's application.

R.S.C. 0.45. r.1 was not relied on before the primary judge, which may well have led his Honour into error, although there may also be other reasons why this appeal should be allowed. It is unnecessary for us to consider that possibility.

In the circumstances, the appeal is allowed, the order dismissing the appellant's application is set aside and the matter is remitted to the Trial Division. The appellant is entitled to the taxed costs of the proceedings to date before the primary judge, but must pay his own costs of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 125 of 1993

Brisbane
[Tallon v. Metropolitan Towers & Ors.]

BETWEEN:

STUART DUDLEY TALLON

(Applicant) Appellant

- and -

THE PROPRIETORS OF METROPOLITAN TOWERS
BUILDING UNITS PLAN NO. 5157

(Respondent) First Respondent

- and -

RONALD JAMES McCULLOUGH, MARGARET DAWN McCULLOUGH,
ALBERT SUSAN and ALBA SUSAN

(Respondents) Second Respondents

- and -

IAN FRANCIS MURDEN and CHRISTINE MURDEN

(Respondents) Third Respondents

- and -

CAMCREST PTY LTD

(Respondent) Fourth Respondent

- and -

ARNOLD FREDRIC NATZKE and PEGGY HILDA RAE NATZKE

(Respondents)	Fifth Respondents
The President Mr Justice McPherson Mr Justice Pincus

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 125 of 1993.

Brisbane

Before The President
McPherson J.A.
Pincus J.A.

[Tallon v. Metropolitan Towers & Ors]

BETWEEN

STUART DUDLEY TALLON

(Applicant) Appellant

- and -

THE PROPRIETORS OF METROPOLITAN TOWERS

BUILDING UNITS PLAN NO. 5157

(Respondent) First
Respondent

- and -

RONALD JAMES McCULLOUGH, MARGARET DAWN

McCULLOUGH, ALBERT SUSAN and ALBA SUSAN

(Respondents) Second
Respondents

- and -

IAN FRANCIS MURDEN and CHRISTINE MURDEN

(Respondents) Third
Respondents

- and -

CAMCREST PTY LTD

(Respondent) Fourth
Respondent

- and -

ARNOLD FREDRIC NATZKE and PEGGY HILDA

RAE NATZKE

(Respondents) Fifth
Respondents

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 06/12/93.

This is an appeal against an order of the Supreme Court in an encroachment case; the appellant's application for relief from encroachment was dismissed on the ground that, so the court held, it had no power to hear the application.

The dispute concerns two blocks of land at Bundaberg, Lot

2 being owned by the appellant and Lot 1 by the respondents.
There are four shops erected on Lot 2, which fronts on to
Barolin Street; Lot 1 encloses Lot 2 on the other three sides
- i.e. on the three sides other than that which abuts Barolin
Street.

The dispute concerns encroachments at the northern boundary of Lot 2 which I shall call simply "the disputed boundary". The evidence shows that there are other encroachments at boundaries of Lot 2: the building on Lot 2 encroaches slightly on to Barolin Street and also encroaches slightly on to Lot 1 at the eastern and southern boundaries.

However, these other encroachments - i.e. encroachments other than that at the disputed boundary - are, on the evidence, able to be corrected by works done on the appellant's buildings.

In 1980 an application was made in respect of the encroachment at the disputed boundary, under The Property Law Act 1974, by the then owner of Lot 1. The application sought an order to the effect that a strip of land constituting the encroachment be conveyed to the owner of Lot 1. When that application was made, the building on Lot 2 did not encroach on Lot 1 at the disputed boundary. That building was one storey and its external wall at the disputed boundary was (and is) cavity brick. On top of that wall of Lot 2 there was erected the boundary wall of the building on that part of Lot 1 lying to the north of Lot 2. The position was as shown on this simplified diagram, the dotted line being the original boundary.

It will be seen from the diagram that the Lot 2 building was wholly within the original boundary, but the Lot 1 building encroached over the boundary; the amount of encroachment was 0.276 metres.

In 1981 there was made, on the application I have mentioned, an order which had the effect of shifting the boundary to the dashed line. The purpose of that order was to enable the owner of Lot 1 to get a certificate from a surveyor that the Lot 1 building was "within the external surface boundaries of the parcel the subject of" a building units plan which was proposed to be registered: see s. 9(8)(a) of the Building Units and Group Titles Act 1980.

W B Campbell J, who heard the 1980 application, held that "the present situation is that the southern wall of the hotel is completely on the first respondent's land", meaning, in the terms I am using, that the southern wall of the building on Lot 1 was completely on Lot 2. It seems clear that, strictly speaking, that was not so; only the top storey encroached.

The learned judge made an order moving the disputed boundary south "by a distance of approximately five and a half inches so that it runs along the middle of the cavity between the cavity brick wall. The cavity wall will then become a true boundary wall". There was also an order for easements of support and an order that windowsills and wingwalls on the southern side of the top storey be removed, insofar as they encroached.

As will be seen from the diagram, the effect of the order was that the single encroachment by Lot 1 on to Lot 2 was replaced by two encroachments; each building, after the order was carried out, encroached on the neighbouring lot. Further, the order did not have the effect that the Lot 1 building was within the external surface boundaries of Lot 1, because only the inner part of the cavity wall at the top storey was within the boundary; the other part of that wall, being part of the Lot 1 building, was not.

The disadvantage of the order from the appellant's point of view was that it created a problem which had not previously existed. His building was within the disputed boundary before the order, but afterwards, part of it - that part of the cavity brick wall on the outside of the cavity - was on the neighbouring block. As was pointed out by Mr Wall Q.C. who led for the appellant, part of the roof of the Lot 1 building encroached on Lot 2 before and after the order.

However, the advantage intended to be gained for the owner of Lot 1 ensued; there was issued a certificate to the effect set out in s. 9(8)(a) of the Building Units and Group Titles Act 1980. The matter to which it certified appears to have been incorrect, for the shifting of the boundary still left part of the Lot 1 building on Lot 2; but the certificate was accepted and the building units plan registered.

This appeal relates to an order made on a second application concerning the disputed boundary, by the appellant, who unsuccessfully resisted the 1980 proceeding. The summons in the present application sought an order for the removal of the encroachment and a retransfer of the strip which was transferred under the order of W B Campbell J. The primary judge held that he had no power to make that order. His Honour held, in effect, that the reasons of W B Campbell J were based on an opinion that "the adding of the easement of support effectively enlarged the external surface boundary of the land so that the building was within that external surface boundary". As I understand the matter, the passage in the reasons of W B Campbell J which was thought by the primary judge to make the easement relevant is the following:

"I express my view that if the boundary line is moved to where I have so directed and reciprocal easements of support are granted, a licensed surveyor could properly and lawfully give a certificate pursuant to s. 9(8)(a) of the Building Units and Group Titles Act 1980 to the effect that each building is within the external surface boundaries of the parcel the subject of any building units plan which may be lodged for registration under that Act either by the applicant or the first respondent, or by their respective successors in title".

In my opinion, that passage could only have been based upon an erroneous view of the facts of the case, because it is plain beyond argument that the shifted boundary still left part of the Lot 1 building outside the boundary. By no process of reasoning may the outer part of the cavity brick wall of the Lot 1 building, together with the roof above it and the relevant part of the side walls of that building, be regarded as having ceased to be part of the building because the boundary has been shifted; they are certainly no part of the appellant's building on Lot 2. An important point for present purposes is that W B Campbell J chose the expression "I express my view", in the hope that the expression of view would be of assistance to the parties in dealing with the question of building units plans; it was not part of the reasoning leading up to the making of the order. The expression of view follows and does not precede the explanation by W B Campbell J of the order his Honour proposed to make for relief against the encroachment.

Under s. 184 of the Property Law Act 1974:

"Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Division in respect of any encroachment".

The appellant is within both descriptions and therefore, at least prima facie, is entitled to apply for relief. Under s. 185 the Court may order a payment of compensation, conveyance of the subject land to the encroaching owner or removal of the encroachment. Section 185(2) gives the Court power to grant or refuse relief "or any part" thereof; the order of W B Campbell J appears to have been based upon the words just quoted, since it did not involve a conveyance of the whole of the land the subject of the encroachment, but only part of it.

The question is whether there is an issue estoppel preventing the making in favour of the appellant of an order under ss. 184 and 185 of The Property Law Act 1974. There is, in my opinion, some difficulty in defining the finding, or holding in law, the subject of the estoppel. Mr Copley Q.C. who led for the respondents fairly conceded that there is still an encroachment by the Lot 1 building on Lot 2; that was and is clear. The learned primary judge implied, I think, that there was an estoppel in that W B Campbell J held that after the carrying out of his order the whole of the Lot 1 building would be within the boundaries of that lot. Although it must be admitted that the contrary view has some substance, I am unable to read the 1981 reasons as so holding. The judgment in 1981 appears to have been directed towards providing a practical solution to the problem with which the owner of Lot 1 was then faced, rather than being based on a legalistic analysis. It has turned out that the solution adopted did not produce the result, for the appellant, which the learned judge thought in 1981 would ensue.

Some American authority is relevant to the question of certainty of issue estoppels and whether an issue estoppel may compel the adoption of a factual view which is, indisputably, incorrect. "Collateral estoppel" has been held not to be applicable where the earlier judgment relied on as the basis for the estoppel was ambiguous in what it actually decided in relation to key issues: Hardy v. Johns-Manville Sales Corp. (1982) 681 F.2d 334. That case was one of many asbestos- related product liability actions, in which the court at first instance held that the defendants, manufacturers, sellers and distributors of asbestos-containing products, were collaterally estopped by an earlier decision, Borel v. Fibreboard Paper Products Corp. (1973) 493 F.2d 1076, as to the unreasonably dangerous character of asbestos, its capability of causing mesothelioma, and as to whether at a certain time a relevant warning should have been issued with the products - evidence as to "the state of the art". (At 337) The United States Court of Appeals, 5th Circuit found a number of ambiguities in the jury's decision in Borel, e.g. as to the time when a duty to warn attached and whether failure to warn was a ground of strict liability of the defendants. It was therefore held that as the court could not say that Borel necessarily decided, as a matter of fact, that all manufacturers of asbestos products knew or should have known of the dangers of their particular products at all relevant times, they could not agree with the collateral estoppel applied by the trial court as to the state of the art. (At 345) Although the notion of "collateral estoppel" as developed in the United States does not precisely correspond to our principle of issue estoppel, the case is of some help. In Cronkhite v. Strain (1904) 71 N.E. 392, a decree for partition of land made in 1863, based on facts incorrectly stated therein, was found not to be of binding force in a later suit. The relevant proportions of land which passed to an intestate's mother were incorrectly stated in the earlier decree, it being held that when the intestate died, his mother and six sisters took by sixths, rather than, as was the case, by eighths (his mother receiving two shares). In 1903 Cronkhite, who had acquired land from the mother, sought an amended bill for partition. In considering how much land Cronkhite was entitled to, the court said, "While such decree (of 1863) is evidence in this case, it has no binding force as to the facts therein incorrectly stated and incompatible with each other." It was obvious that the earlier decree was defective, for when all the fractional parts of land belonging to the respective parties were added together, there was found to be a "unit of exaggerated parts", the number of parts amounting to 102/96. The court therefore was not constrained by the earlier decree, and determined the proper entitlement of Cronkhite to the land. Thus in the present case, the real and evident state of affairs, that there is still an encroachment, cannot be ignored, just as there could be no dispute that the proportions determined by the first decree in Cronkhite v. Strain were incorrect and therefore not binding on the court in determining the second decree.

I would hold that the order made below was in error for the reasons that:

1.    It was not clearly decided, in 1981, that the order then made would put an end to the encroachment of the Lot 1 building on Lot 2.

2.    If it had been so decided, that must have been based on a misunderstanding of the physical facts, which are not in dispute. The Court should be slow to hold that a wrong finding as to a matter about which there can be no rational dispute - e.g. the location of a building in relation to the boundaries of the land on which it is placed (neither having moved) - could give rise to an estoppel. The absence of room for debate about the point, in my view, constitutes "exceptional circumstances" justifying a relaxation of the ordinary rule as to issue estoppel: Arnold v. National Westminster Bank PLC [1991] 2 A.C. 93 at 112.

3.    There being an admitted encroachment by the Lot 1 building on Lot 2, there must be power to correct it; the statute is a remedial one.

A general objection which the respondents took to the application before the primary judge was that the order sought by the appellant would have the effect of reversing the order made by W B Campbell J in 1981. As to part of the relief sought, that is so. In my opinion, it would be within the power of the Court to make such an order: the order of W B Campbell J did not have the practical effect intended, because the appellant cannot obtain the certificate which his Honour thought would be available. Cases may well arise in which an order made partially remedying an encroachment is, in the light of subsequent events, seen to be inappropriate. The Court may then, in my view, make a further order with respect to the encroachment; the nature of the appropriate order was not debated before us.

I agree with the orders proposed in the joint reasons of
the President and McPherson JA, except for the order for costs.
I would order that the respondent pay the taxed costs of the
appellant of and incidental to the hearing before the primary

judge on 24 May 1993 and also the appellant's taxed costs of

this appeal.
Judgment delivered 6/12/93

Joint reasons for judgment by the President and McPherson J.A., Pincus J.A. separately. All agreeing as to the orders made except Pincus J.A. dissenting as to the order for costs.

CATCHWORDS:

ESTOPPEL - Issue Estoppel - Appellant's application for relief from encroachment- whether estopped from obtaining such relief by 1981 decision moving boundary between appellant's and respondent's land to the centre of a brick cavity wall to remedy encroachment -

1981 Order made to enable respondents to obtain appropriate certificate to register a building units plan - whether fact discovered after the giving of the first judgment or earlier judgment based on incorrect facts.

Counsel:  Mr C F Wall QC with him Mr F J Toy for Appellant
Mr K Copley QC with him Mr P Goodwin for

Respondent

Solicitors:  Bevan Andrews for Appellant
Finemore Walters and Story for Respondent

Hearing date: 28 October 1993