Titelius v Crowe - [2017] WADC 116

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TITELIUS -v- CROWE [2017] WADC 116

CORAM: STAUDE DCJ

HEARD: 31 JULY 2017

DELIVERED : 1 SEPTEMBER 2017

FILE NO/S: APP 34 of 2017

BETWEEN: AARON TITELIUS
MELISSA TITELIUS
Appellants
AND
ALEXANDER IRWIN (JON) CROWE
ROBYN JEAN CROWE
CRISTIAN BROADHURST
Respondents

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P MALONE
Citation  :PE GCLM 383 OF 2016

Catchwords:

Magistrates Court appeal - Dividing fences dispute - Application to strike out appeal

Practice and procedure - Strike-out application - Whether likely costs of appeal would be disproportionate to the claim - Whether appeal has no reasonable prospect of success

Legislation:

Dividing Fences Act 1961
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court (Civil Proceedings) Rules 2005

Result:

Application to strike out appeal dismissed

Representation:

Counsel:

Appellants: Mr L Palmos
Respondents : Ms T McAulay

Solicitors:

Appellants: Andrew Barclay & Associates
Respondents : Lawfield Legal Practice

Case(s) referred to in judgment(s):

Cristovao v John Houghton & Associates [2012] WASCA 12
Delena Investments Pty Ltd v Terensdale Pty Ltd [2011] WADC 124
Garber v Abbott [2017] WADC 38
Gilbert v Goodall [2012] WADC 75
Glendinning v Cuzens [2009] WASCA 21
Mabelle Nominees Pty Ltd t/as Automatic Solutions v Roberts [2011] WADC 50
TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67

STAUDE DCJ:

Introduction

In this appeal the respondents have brought an application to strike out the appeal pursuant to s 43 of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) on the grounds that the likely cost of the appeal to the parties would be disproportionate to the amount of claim in, or the nature of, the case that is the subject of the appeal, and, further, that there is no reasonable basis for the appeal and that the appeal does not have a reasonable prospect of succeeding. Section 43(6) of the Act provides that the court may give judgment striking out the grounds of appeal without a full hearing of it.
To put the application in context, it is necessary to set out the circumstances of the claim at first instance, the decision of the court below dismissing the appellants' claim, and the grounds of the appeal. It will be convenient to refer to the appellants as 'the claimants' (and, where appropriate, by their names) and to the respondents as 'the defendants'.

The claimants' claim

On 12 January 2016 the claimants lodged a general procedure claim (Form 3) in the Magistrates Court claiming $500. The description of the claim was as follows:
Under section 15(4) and 15(5) of the Dividing Fences Act, the Claimants seek an order as to the repair of part of the dividing fence between 46A Staton Road and 1 Parry Avenue, East Fremantle, by whom the repairs are to be effected, and the period in which they are to be carried out.
It may be observed at the outset that, notwithstanding the nominated amount of the claim, the relief sought by the claimants was in fact for an order with respect to the repair of the dividing fence rather than compensation.
In response to the general procedure claim, the defendants lodged a notice of intention to defend and an application for change of venue. That application was granted. Following an unsuccessful pre-trial conference, the claimants lodged a statement of general procedure claim dated 5 July 2016 (the statement of claim).
The statement of claim alleged that the parties were neighbours who shared a property boundary. The previous boundary fence had become inadequate and the parties had agreed to the construction of a new retaining wall and dividing fence along the length of the boundary to which they would each contribute on the basis that the defendants would engage the male claimant, a builder, to construct the dividing fence. Pursuant to this agreement, it was alleged that the defendants submitted agreed drawings for development approval to the local authority that specified a brick retaining wall to a maximum height of 800 mm and a brick dividing fence above to about 1800 mm. Piers at 2400 mm intervals would be erected on the claimants' side.
The statement of claim went on to allege that the defendants, in breach of the dividing fence agreement, directed the male claimant as the builder to build the western portion of the dividing fence to a height of 1100 mm rather than 1800 mm. Although the male claimant subsequently raised the height of that portion of the dividing fence to 1700 mm for the western 5‑m portion and 1600 mm for the remaining 2.5 m, the defendants, in contravention of the agreement, demolished that section of the dividing fence (approximately 7.4 m) to a height of 1100 mm.
The legal basis of the claim was expressed as follows:
Although the parties' agreement for the construction of the new property boundary fence was not a fully written agreement (being partly oral and partly in writing), the parties had agreed sufficient terms to create a concluded agreement and the defendant breached that agreement by not allowing all of the dividing fence to be built and maintained at the agreed height of about 1800 mm and further breached the agreement by causing the disputed section of the dividing fence to be lowered to about 1100 mm without the claimants' consent.
The claimants' contentions were set out as follows:
The defendant claims the parties had only agreed to build the fence to a level not significantly higher than the original dividing fence (that is less than 1800 mm). The defendant wants to maintain at least part of the disputed section of the dividing fence at least 1800 mm (as low as about 1400 mm) to preserve scenic views from the defendants' property over the claimants' property, despite the agreement between the parties for a top of fence height of up to 1800 mm above the retaining wall and that anything less than that has a significant impact on the claimants' privacy because at such a reduced height the defendant has a direct line of sight into the claimants' courtyard and living areas. Further, the defendant is refusing an easement of support for the dividing fence including the agreed structural piers.
Under the heading 'Remedy or relief claimed', the claimants pleaded:
The Claimant seeks an order under section 15 of the Dividing Fences Act to repair the fence to the agreed and approved height of approximately 1.8 metres, including, as may be required, sufficient authorised access to make good and maintain the agreed dividing fence (including height, piers and easement of support).
The Defendant to pay cost and damages to the claimant associated with the Defendant's non-compliance with the agreement between the parties for the construction of the new property boundary fence, including but not limited to the costs associated with the steps taken by the claimant to maintain privacy between the parties such as the erection and maintenance of scaffolding and legal costs related to this action.

The defence

In their statement of defence, the defendants alleged that the agreement was for the construction of a brick retaining wall and fence not substantially higher than the existing fence. The defence alleged that the male claimant provided a building quote that indicated a wall height of 1.4 m and included a drawing showing a wall height of 1.5 m. The building contract was made accordingly.
The statement of defence alleged that the male claimant constructed the wall to be substantially higher than the previous fence in breach of both the building contract and the dividing fence agreement. The defendants pleaded that they removed part of the wall that was substantially higher than the previously existing fence. The defendants stated that the wall was in good condition with no cracks or leans and was sound and stable, standing at a height of 1.8 m for some 16 m of the eastern end, and at 1.4 m for the remaining 7.4 m, higher than the previous fence.
The legal basis of the defence was pleaded as follows:
1.The wall over that has been constructed between the properties is not in need of repair. The Dividing Fences Act s 15 does not apply.
2.The wall over that is now in place is substantially higher than the original agreement of the parties (sic) and the cost plus contract.
By a counterclaim lodged on 26 July 2016, the defendants made a claim for $2,285.40 for breach of the cost plus contract, being the building contract. The counterclaim was later discontinued.

Listing conference memoranda

The positions of the parties are also reflected in listing conference memoranda (Form 32) which were ordered to be filed and served prior to trial. The defendants' memorandum was filed on 19 August 2016 and the claimants' on 22 August 2016. I note that in their memorandum, at par 2.1, the claimants stated:
[A]lthough the matter was started as a Form 3 claim (general) it is to be conducted as a Form 53 claim (dividing fences).
It is clear from the memoranda that the fundamental issue was whether the parties had agreed to erect a dividing fence in the form of a brick wall over a retaining wall to a height of 1800 mm for the length of the boundary as contended by the claimants, or 1.4 m as contended by the defendants.
The claimants' interest was in preserving the privacy of their courtyard and the defendants' in preserving an appealing view.

The hearing

The matter came on for hearing on 2 May 2017. The claimants appeared in person. The defendants were represented by counsel. At the commencement of the hearing the learned magistrate observed that the matter had been commenced as a general procedure claim, but that the claimants' listing conference memorandum indicated that it was to be treated as a Dividing Fences Act 1961 claim. His Honour observed that the defendants' position was that s 15 of the Dividing Fences Act did not apply as the fence was not in need of repair.
His Honour identified the central question to be, 'Is there a need for this fence to be repaired?' His Honour also observed that the claim for an order to allow additional piers and arches and an easement of support had nothing to do with s 15. At ts 6, his Honour set out his understanding of the issue as follows:
What otherwise is the problem? Well, one side is happy with the level of privacy but they want to retain their view and the other side wants to increase for their privacy but to be restrictive of view, but that just comes with the territory. I don't know what legal action you would take to say that you were in the right for that, quite frankly, because it seems to me that, if you sued on the agreement by alleging somebody didn't comply with the agreement, you have the difficulty of establishing whatever that agreement is.
However, I'm very pleased to say that I think I'm meant to be dealing with the section 15 matter, which is just confined to whether the fence needed a repair or not and I don't have to get into those issues about what the agreement was and, you know, what you do about the question of privacy and height and all those sorts of things.
Mr Titelius, the male claimant, said (ts 10):
So we want to – my preference is to go through the Dividing Fences Act. My initial lawyer, Aidan Kelly, put it through as a general procedure and then, after I queried that – you know, because, well, we should have actually done it as a dividing fence. So it was really an error on his behalf and I've had to basically follow through with that, hoping that we can get to a point like this where we can have a way to progress forward either the Dividing Fences Act or both, you know, in two different, you know, jurisdictions, like, I guess, you know.
Both the learned magistrate and Mr Titelius appear to have been alluding to, without reference to name or citation, the decision of Commissioner Gething in Gilbert v Goodall [2012] WADC 75, where his Honour held that a claim pursuant to the Dividing Fences Act is within the general civil jurisdiction of the Magistrates Court. An issue in that case was whether the appeal was from a minor case. His Honour observed that the claim had been commenced as a minor case and that the registrar at a pre‑trial conference had directed that the claim for repairs of the fence be conducted as a Form 53 application and that part of the claim relating to an agreement with respect to a retaining wall as a minor case. His Honour held [27]:
The definition of 'minor case' relevantly includes 'a matter within the jurisdiction of the court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the court to deal with the matter': section 26(1). The DFA does not declare that the jurisdiction conferred is a minor case. The registrar was thus correct to treat the claim under the DFA as being in the general division of the court. As Magistrate Sharratt held that the issue of the retaining wall was part and parcel of the dividing fence, it is appropriate that I treat the appeal as being on that part of the claim within the general jurisdiction.
After dealing with the issue of the validity of the s 15 notice, his Honour stated [49]:
The defendant's claim was brought as a minor claim and is not couched in terms of an application under the DFA. The claim is wide enough for the magistrate at first instance, and thus this court on appeal, to consider the rights of the parties at general law. In view of the amount in dispute and the length of time the dispute has been running to date, it is appropriate that I proceed to determine the claim under general law. I heard submissions from the parties on all aspects of the claim, not just that part which related to the DFA, including on the issue of whether there was a contract between the parties as asserted by the claimant.
His Honour observed that s 6 of the Dividing Fences Act provided that nothing in the Act affected any contract or agreement made between the owners of adjoining land relative to the cost of erecting or repairing dividing fences. In the result, his Honour found that the claim ought to have been dismissed on the basis that there was an agreement for the fence to be replaced at the claimants' expense.
In this case, however, the learned magistrate indicated an intention to proceed on the basis that the claim was solely under the Dividing Fences Act. Mr Titelius then adverted to s 9 which provides that the court in the absence of an agreement between the parties can make a determination as to what kind of fence is to be constructed. He did not refer to s 10 which provides that the court may make an order enforcing an agreement as to a dividing fence.
The learned magistrate's response was that s 9 had not been mentioned in the claimants' listing conference memorandum. Mr Titelius then sought an adjournment, saying (ts 12):
Is it possible to, sort of, like, stay the proceedings for the moment and come back with a sort of – an educated answer to that so that we don't lose, you know, prejudice for making the wrong decision, basically.
His Honour then indicated that if an adjournment were granted, it would be at the claimants' cost. His Honour appears not to have ruled on the adjournment application, but to have gone on to re-state his understanding that the issue was whether the fence needed repair. The female claimant, Ms Titelius, submitted that the definition of repair under the Act included re‑erect and re‑align (ts 14). At ts 16, Ms Titelius raised s 10, saying:
And ... if there's an agreement and a party fails to complete that agreement, the other party is entitled to complete the construction.
Again, his Honour referred to the listing conference memorandum, noting the proposition in [15]:
That the claimants were compliant under section 8 and 10 of the Dividing Fences Act 1961 to construct the whole fence agreed upon.
His Honour then observed that the indorsement of the general procedure claim referred only to s 15(4) and s 15(5) of the Act (ts 17). When his Honour stated that he thought he was dealing with a s 15 application, Mr Titelius again asked for an adjournment in the following terms (ts18):
So, I mean, an obvious thing is to stay or redefine, you know, I have to stop this dispute and redefine my claims, basically, in order to have more chance of success, I guess.
Ms Titelius inquired whether, if it had not been determined that it was a Dividing Fences Act claim, were the claimants still in a position to change it? Mr Titelius, after the learned magistrate had made more observations on the formulation of the claim, said:
Okay, so you would like an answer, an answer from us whether we're dealing with the section 15 or not? (ts 20)
His Honour then explained how the trial would be conducted if that were the case. His Honour re-stated the issue with respect to the s 15 claim and then said:
If you're ready to run that argument, having looked at all of those things and you're sticking by your guns that it's definitely – that's the issue for the court then fine, we'll go ahead today. But if you feel, 'hang on no. I haven't explored all the business and the court has to got to look at the requirements applicable to the East Fremantle properties, the council requirements, those things', you can if you like seek an adjournment. Whether you achieve anything by that and whether it's costly for you, will be, you know, a matter for you.
Mr Titelius responded, 'Yes, okay. So we will go ahead with the section 15' (ts 21).
Thereafter, there was an exchange between the learned magistrate and counsel for the defendants (respondents) with respect to the absence of any notice by the claimants (appellants) to the defendants for the purposes of s 15. (Later, in the course of Mr Titelius' submissions, a document was delivered by his former solicitors in the form of a Dividing Fences Act notice dated 15 December 2015 which the defence conceded through counsel was a valid notice for the purposes of s 15.)
His Honour then suggested further negotiations, which appear from the transcript to have taken place without any success. When the matter resumed, his Honour inquired whether an adjournment was sought. Again, Mr Titelius indicated that he wished to proceed, acknowledging that he might regret doing so (ts 33). The learned magistrate then made some observations with respect to how the matter would proceed. He expressed the view that s 10 applied to the construction of dividing fences, not repair. His Honour indicated that the matter would proceed on the basis of affidavit evidence on which the deponents could be cross‑examined. He again asked Mr Titelius if he was content to proceed. Mr Titelius responded that the claimants would 'go ahead'. His Honour received the affidavit of Mr Titelius. Counsel for the defence elected not to cross‑examine. Mr Titelius indicated that he did not wish to cross‑examine any of the defendants on their affidavits.
Counsel for the defendants was then invited to make submissions. The defendants submitted that the relief sought by the claimants was not a repair for the purposes of s 15, there being no evidence that the fence was in disrepair or damaged or defective. The defendants' position was that there was nothing wrong with the fence. The dispute over the height of the fence did not give rise to an issue as to repair. The demolition of part of the fence by the defendants did not occasion a need for repair.
Mr Titelius argued that under the Town of East Fremantle Fencing Local Law 2004, a sufficient fence was 1800 mm unless the parties agreed otherwise: cl 6 and pt 3 of the first schedule. The claimants' submission was that in the event of disagreement, therefore, a sufficient fence should be determined to be of a height of 1800 mm.

The decision

His Honour gave a lengthy extempore decision (ts 61 - 76) in which he gave reasons for dismissing the claim.
His Honour identified the matter before him as an application under s 15 of the Dividing Fences Act for an order for repair of a dividing fence, observing that s 15 did not allow the awarding of damages or an order for the construction of additional piers and arches as claimed under general law. His Honour noted, on the basis of Gilbert v Goodall, that a Dividing Fences Act claim could be made in a general procedure claim, but said that he would deal with it solely as a Dividing Fences Act application as the claimants had indicated (ts 65). His Honour stated also that the court would not be 'considering issues such as retaining walls, what was agreed in the initial replacement of the wall [sic], issues of privacy or damages'. After referring to the contractual issues, his Honour stated (ts 67):
They are all matters that might be the issue of some general procedure claim. But it seems to me that what from the very start the claimants confined themselves to was this question of the Dividing Fences Act. And the level of confusion that has run through the situation ever since has, in my judgment at least, led to the situation where the only tenable approach by this court is to deal with the issue under the Dividing Fences Act.
Now, I said to the parties that there's part of me that is concerned about the fact that the very same issues will still be floating around from both Mr Titelius and Ms Titelius's point of view, and for that matter from Mr and Mrs Crowe and Mr Broadhurst's point of view for the future. There was an attempt – probably a bit ambitious, but there was an attempt to see if all matters could be resolved today, but it just wasn't possible and I had to proceed on with the hearing so that's where we're at.
His Honour observed that it was common ground that there was a previous dividing fence that the parties agreed to replace. He held that the replacement could be regarded as a repair. Thus, there was an agreement to repair the original fence.
His Honour found that the wall had been built to a height of 1800 mm. Part of the wall had then been demolished by the defendants to a height which they believed was the agreed height. Subsequently, the claimants gave notice to the defendants of their proposal to repair the brick wall by restoring it to 1800 mm. The defendants objected to the repair. Hence, s 15 was invoked. His Honour noted that the local law provided that, absent agreement, a sufficient fence was 1800 mm.
His Honour observed at ts 74 that the notice issued on the claimants' behalf by Mr Kelly was a notice of proposal to repair the wall by raising it to a height of 1.8 m.
His Honour concluded that this was not a repair. He stated (ts 75):
What, however, Mr Titelius on legal advice chose to do is to say that the fence needs repair. Now, that repair is based on his assumption that it has to be 1800 mm and there was no agreement to the contrary, so therefore it absolutely follows that there has to be a repair. What the defendants are saying is:
'oh, no, no. It didn't have to be 1800. There were discussions. The work did stop. There was an increase. There was a decrease. Now we're at that situation – this isn't a repair situation. This is just Mr and Mrs Titelius coming along to court saying "we're doing it effectively under the guise of repair and calling it a repair, but it's not really''. It's just a dispute as to whether it very definitely has to be 1800 mm or whether there was a definite agreement to it being some height otherwise.'
Now, my decision about the matter is that I come to the conclusion this isn't and never was – and I don't mean it in any unkind way – this isn't and never was a repair within the meaning of section 15. What it was was all building stopped effectively, as was mentioned in basically mid‑December 2011. There was then this correspondence that went on for a number of years, obviously, between the lawyers (indistinct) Mr Kelly chose to send out a notice under section 15 saying this gave rise to a repair.
...
[I]n my judgment, this is – never was, never will be what is properly regarded as being repair under the Dividing Fences Act. And it doesn't – it seems to me, you can't accrue jurisdiction by sending a notice calling something a repair that isn't – and, sure, it might have been and I said to the parties to start with if this is not under the Dividing Fences Act, fine.
You will need to take a decision whatever else it's under but if you're going under the Dividing Fences Act, then what I'm limited to is whether this is a repair and, in my judgment, it's not and it is not the case that the sufficient fence provisions of the town law insist that it has to be 1800 mm. They don't. They do allow for other agreements and it isn't to be regarded as a repair to say just because you've lodged the plans with the council and approval has been made that therefore you're locked in to the idea of the 1800 mm even though you're busy having correspondence backwards and forwards saying 'Okay, let's replace the wall and let's deal with the question of height', and all those sorts of things. So this isn't and never was a repair.
There's no jurisdiction, in my view, under section 15 and the claim is appropriately dismissed.
The defendants' counsel then moved for costs. Reference was made to Gilbert v Goodall. His Honour questioned (ts 78) whether a Dividing Fences Act claim could be conducted as a minor case claim, but he went on to say (ts 79):
And it seems to me that your lawyers set the tone by claiming - as a general procedure claim under the Dividing Fences Act so lawyers got involved from the start.
Mr Titelius maintained that the dispute was a minor claim, being for less than $10,000. His Honour observed (ts 81):
First of all, it seems to me without unkindness that this, the claimants applied under the general procedure provisions and lawyers can be involved and were involved, it seems to me from moment one. This isn't a claim for money. It was a claim under the Dividing Fences Act essentially.
Although his Honour did not make specific reference to s 17, it provides that the court may award costs against either party in proceedings under the Dividing Fences Act.

Grounds of appeal

The pleaded grounds of appeal are as follows:
1.The Honourable Magistrate erred in law by ordering the Appellants to pay the Respondents' costs of the action.
Particulars
(a)The proceedings were commenced and conducted as a General Procedure claim within the civil jurisdiction of the Magistrates Court.
(b)At all material times, the value of the Appellants' claim was below the jurisdictional limit of the minor case jurisdiction of the Magistrates Court. Section 25(5) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) therefore applied to the proceedings and needed to be considered by the Honourable Magistrate in making any award of costs: see Mabelle Nominees Pty Ltd t/as Automatic Solutions v Roberts [2011] WADC 50 (Eaton DCJ) and Delena Investments Pty Ltd v Terensdale Pty Ltd [2011] WADC 124 per Braddock DCJ at [40].
(c)The Honourable Magistrate ought to have concluded that section 25(5) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) applied to the proceedings, and the Court therefore lacked jurisdiction to order the Appellants to pay the Respondents' costs of the action, absent the circumstances identified in section 31(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (which did not apply).
2.Further and alternatively, the Honourable Magistrate erred in law by characterising and determining the Appellants' claim as being solely and exclusively an application under the Dividing Fences Act 1961 (WA), and failed to consider and determine the Appellants' claim under general law.
Particulars
(a)The Appellants' Statement of General Procedure Claim was not expressed as being exclusively limited to an application under the Dividing Fences Act 1961 (WA). However, this is how the Magistrate treated the matter.
(b)The Respondents defended the claim on the basis that it was both an application under the Dividing Fences Act 1961 (WA), and alternatively, a claim for breach of contract under general law.
(c)Nothing in the Dividing Fences Act 1961 (WA) affects any contract or agreement made between the owners of adjoining land relative to the cost of erecting or repairing dividing fences: Dividing Fences Act 1961 (WA), s 6.
(d)The Appellants' claim included a breach of contract. The existence and terms of the alleged contract, and rights and obligations of the parties to the proceedings should have been considered and determined by the Magistrate at general law.

The application to strike out

Relevantly, s 43(3) and s 43(4) of the Magistrates Court (Civil Proceedings) Act empower the court to strike out an appeal if the costs of the appeal are disproportionate to the amount of the claim in, or the nature of the case, that is the subject of the appeal, or if there is no reasonable basis for the appeal, or if the appeal has no reasonable prospects of success.

Disproportionality

There are two limbs to the s 43(3) test, the first being the amount of the claim in the Magistrates Court and the second being the nature of the case which is the subject of the appeal: Cristovao v John Horton & Associates [2012] WASCA 12 [20]. The merits of the appeal are not relevant. The defendants rely upon the first limb only.
In this case the stated amount of the claim was $500. This was obviously a nominal sum as the remedy sought by the claimants was the repair of the dividing fence to the alleged agreed height of 1800 mm. A claim for repair under the Dividing Fences Act application is not a monetary claim. In the circumstances, I find there is no case to be made for disproportionality based on the nominated amount of the claim.
At issue for the claimants was their privacy; for the defendants their view. It may be observed, by reference to the second limb of the s 43(3) test, that the nature of the case was protection of an amenity on the part of the claimants. That amenity of privacy conflicted with the defendants' amenity of view. Hence, what was in issue was a matter of considerable value to both parties. At the heart of that issue was the agreement to build the dividing fence. Ironically, the terms of that agreement were not determined.
Although I find that there is no issue of disproportionality for the purpose of s 43(3), the basis for the strike-out application in this respect should not escape comment.
On behalf of the defendants, Ms Robyn Crowe made an affidavit in support of the application in which she deposed to the defendants having incurred what is to me an extraordinary amount of costs in this appeal. I note in this respect that the defendants' solicitors and counsel were both involved in the Magistrates Court claim.
I would observe, firstly, that in demonstrating the disproportionality by reference to the costs of the appeal to the parties, the appropriate reference is the Legal Profession (District Court Appeals) (Contentious Business) Determination 2016. A party may, of course, for their own reasons agree to pay costs beyond what is allowed in that determination, but any question of disproportionality must, in my view, determined objectively by reference to the relevant legal costs determination according to which the costs awarded would be assessed.
In this case the defendants' solicitors' costs agreement has been annexed to the affidavit of Ms Crowe. It stipulates hourly rates as follows:
Principal:$540 per hour
Senior solicitor: $460 per hour
Junior solicitor: $330 per hour
Law clerk or graduate: $220 per hour.
The agreement also provides that time will be calculated at units of 15 minutes, not six minutes as referred to in the Law Society of Western Australia pro forma costs agreement which is otherwise incorporated. I cannot see that time charging at a minimum rate of 15‑minute units would pass scrutiny upon taxation (unless, of course, the agreement provided that attendances of shorter duration would not be charged, which it does not). Such a term, in my view, renders the hourly rate illusory.
The affidavit of Ms Crowe also annexes tax invoices of the defendants' solicitors for the period 22-29 May 2017 for $1,600 and for the period 1 ‑ 29 June 2017 for $10,909.80. The latter period ended more than one month prior to the hearing of the application, so it might be inferred that the defendants' solicitors' costs up to and including the application to strike out the appeal were considerably higher than the amount of $12,509.80 charged to the end of June. The defendants, whose position is that the appeal is unarguable, have also incurred the costs of counsel who, at the rate of $500 per hour between 22 May 2017 and 9 June 2017, charged $6,325 (including GST). In addition, counsel raised a charge for a law clerk of $1,284.80 (including GST).
The costs of this appeal based on the evidence of Ms Crowe's affidavit are disproportionate, but not in a way that would justify the striking out of the appeal pursuant to s 43(3).

No reasonable basis/no reasonable prospect of success

The court is bound to be circumspect in considering any submission that the claimants' appeal has no reasonable basis, or no reasonable prospect of succeeding. As Mitchell JA observed recently in TSW Analytical Pty Ltd v The University of Western Australia [2017] WASCA 67 [87]:
Primary and appellate litigation about what is arguable can result in considerable wastage of time and resources while the issue is resolved. The summary determination of proceedings also risks injustice to the unsuccessful party who is denied a full opportunity of presenting that party's case. These considerations inform the court's general approach of summarily determining contested questions only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.
Parties considering making an application which depends on establishing the absence of any arguable case or defence should consider the risks involved before embarking on the exercise, in which they bear a heavy onus. Courts exercising the broad case management powers in O 4A of the Rules of the Supreme Court 1971 (WA) (Rules), in a manner consistent with the case management principles in O 1 of the Rules, should consider other options when a party is contemplating such an application. For example, particularly where there are few primary facts in dispute, a prompt trial of whether a claim is established may be achievable in a similar timeframe required to decide whether the claim is arguable. Active case management to determine, with the parties, the most efficient manner of resolving the case may reduce the extent to which the time and resources of the court and the parties is distracted by arguments about what is arguable. While there will be cases where summary determination is appropriate, they will not involve complex and contestable issues of fact or law.

Ground 1

With respect to the first ground of the appeal, the defendants contend that the claim was made under the Dividing Fences Act, albeit inappropriately as a general procedure claim. The defendants argue that costs were properly awarded to the defendants pursuant to s 17 of the Dividing Fences Act. Although a Dividing Fences Act claim falls within the general procedure jurisdiction (see Gilbert v Goodall), the claim was not a minor claim, nor a general procedure claim to which s 25(5) of the Magistrates Court (Civil Proceedings) Act applied.
Section 25 provides that the court may order a party to pay the whole or a part of another party's costs and that a successful party is entitled to an order for its costs unless the court considers there is good reason not to make such an order, or s 25(5) applies. Section 25(5) provides:
In a case where –
(a)the value of the claim, or of the relief claimed, by the claimant is not more than the minor cases jurisdictional limit; and
(b)the claimant did not elect to have the claim dealt with under the minor cases procedure or, under section 28(3), the court ordered that the case be dealt with under the general procedure,
the court may only make an order under subsection (1) in favour of a successful party if the order would be permitted by section 31 where the case being dealt with under the minor cases procedure.
Section 31 limits recovery of costs in a minor case to allowable costs, meaning the court fees and service fees paid by a successful party and the costs of enforcing a judgment. The discretion to make costs orders for more than allowable costs in exceptional minor cases is conferred by s 31(3).
In the alternative, the defendants argue (contrary to their position with respect to disproportionality) that the relief claimed in the statement of claim included damages. Reference is made to the claimants' listing conference memorandum dated 19 August 2016 in which the claimants sought damages of $8,200 for their contribution to the dividing fence which was made in consideration of the terms of the alleged agreement, and damages for scaffold hire from the date of termination of the alleged agreement (31 December 2011) to the date of trial, a period of nearly four and a half years (par 24). Scaffold hire was said to be $110 per week. On this basis it is argued that the damages claim, which was not pursued in the trial, exceeded the jurisdictional limit of a minor cases claim.
The Magistrates Court has jurisdiction to award costs in a Dividing Fences Act matter. The court has jurisdiction to award costs in a general procedure claim. The claim was brought by the claimants' solicitors as a general procedure claim and was prosecuted as a Dividing Fences Act claim.
Reference was made in the grounds of appeal to Mabelle Nominees Pty Ltd t/as Automatic Solutions v Roberts [2011] WADC 50 and Delena Investments Pty Ltd v Terensdale Pty Ltd [2011] WADC 124. In those appeal decisions, each of which involved a judgment in a general procedure for an amount less than the minor case jurisdictional limit, the court held that the primary court had erroneously failed to consider whether s 25(5) and s 31 applied. In argument the claimants' counsel also cited Garber v Abbott [2017] WADC 38, in which Eaton DCJ held [36]:
The respondent, in filing a general procedure claim, in my view, invoked the operation of s 25(5) of the Act. It provides that in a case where the value of the claim or of the relief claimed by the claimant is not more than a minor cases jurisdictional limit, and the claimant did not elect to have the claim dealt with under the minor cases procedure, the court may only make an order under s 25(1) of the Act in favour of a successful party if the order would be permitted by s 31 of the Act were the case being dealt with under minor cases procedure.
In my view, those authorities are of no assistance to the claimants unless they can show, firstly, that the learned magistrate's power to award costs pursuant to s 17 of the Dividing Fences Act was restricted by the operation of s 25(5) of the Magistrates Court (Civil Proceedings) Act and, secondly, that the claim was for an amount under the minor cases jurisdictional limit.
The interplay between the cost provisions of the two Acts was not fully explored in the hearing before me. This court's decision in Gilbert v Goodall to the effect that a Dividing Fences Act claim can be brought as a minor case claim in conjunction with a claim under general law may bear on that issue. Also, the issue of whether the claim included damages which exceeded the minor case jurisdictional limit is one that ought to be argued in the appeal. While there is considerable force in the defendants' submissions, it would be inappropriate, in my view, to decide the question on a strike-out application. Despite my reservations about its merits, I am not satisfied that there is no reasonable basis for ground 1 of the appeal, or that it has no reasonable prospect of success.

Ground 2

There is no question that the learned magistrate dealt with the claim solely and exclusively as an application under the Dividing Fences Act for an order for repair, and that he expressly did not decide any claim for breach of contract.
The defendants contend that the claimants' general procedure claim set out a description of claim which was limited to an order for repair of the dividing fence pursuant to s 15 of the Dividing Fences Act. The defendants contend that the claimants were bound by that 'indorsement', citing Glendinning v Cuzens [2009] WASCA 21 [29], for the proposition that an indorsement on a writ of summons
sets out the metes and bounds within which the statement of claim must be framed; O 20 r 2(2) of the Rules of the Supreme Court 1971 provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned.
The defendants' submissions are based upon uncontroversial principles that apply to pleadings in superior courts. It is argued that a description of claim in a general procedure claim (Form 3) is the equivalent of an indorsement on a writ. It is not clearly established, in my view, that the pleading rules applicable to writs and statements of claim in higher courts have application to the Magistrates Court. It is acknowledged by the Legal Costs Committee in its Legal Profession (Magistrates Court) (Civil) Report 2016, that the Magistrates Court is not a court of pleading and that there are substantial differences in practice and procedure between the Magistrates Court and other civil courts in the State. Other commentary to this effect may be found in 'Civil Procedure WA Magistrates Court' (LexisNexis) at [1915.5] and elsewhere in that service.
Clause 7A of the Magistrates Court (Civil Proceedings) Rules 2005 sets out the requirements of a statement of claim. It does not contain a rule equivalent to O 20 r 2(2) of the Rules of the Supreme Court 1971. While the requirement, in some cases, for statements of claim and defence to be filed in a general procedure claim may be seen as means of confining the issues that may be contested at trial (there was no authority cited on point), the statutory duty of the Magistrates Court is to ensure that cases are dealt with justly: s 13. Having regard to the way this matter proceeded at trial, there is no force in the defendants' contention that the absence of any reference to a contractual claim in the Form 3 barred the making of such a claim in the statement of claim. In any event, on my reading of the record, the affidavit evidence at trial did not go beyond the issues joined in the statements of claim and defence.
The real issue is whether the claimants are precluded from arguing that their claim was not fully determined. The claimants contend at par 9 of their outline of submissions:
The Appellants (who were not legally represented) did not 'elect' to have the matter dealt with simply as an application under the DFA. This is clear from the transcript and the documents filed in the proceedings.
The faintness of this submission is underscored by this ground of appeal being pleaded second to the costs ground. Ground 1 depends for success on a conclusion that the claim was, in effect, a minor claim that the claimant did not elect to have dealt with under the minor case procedure.
At trial Mr Titelius and Ms Titelius clearly elected not to pursue what has been referred to as a general law claim for breach of contract. As can be seen from the transcript references above, Mr Titelius unequivocally indicated that he would deal with the matter as a s 15 Dividing Fences Act application. Ms Titelius acquiesced. What the claimants sought was an order in the nature of specific performance of an agreement. Such an order could only have been obtained under the Dividing Fences Act, the Magistrates Court having no equitable jurisdiction to grant specific performance or other injunctive relief.
This court is concerned to determine the defendants' application to strike out the appeal on the basis of the grounds as pleaded by the claimants' solicitors.
It is not a ground of appeal that the magistrate should have determined the disputed dividing fence agreement as the basis of the Dividing Fences Act claim, or that his Honour otherwise erred in dismissing the claim for an order for repair. It is not a ground of appeal that the claimants suffered any breach of natural justice in the manner in which their claim was decided. There has been no suggestion that the appeal might be widened by amendment to bring in a challenge to the correctness of the s 15 decision.
The appeal does not plead any erroneous failure by the learned magistrate to consider s 10 of the Dividing Fences Act.
While it may be arguable that the claimants' election did not foreclose a determination of the central issue, namely, whether the height of the fence was a matter of contractual agreement, the grounds of appeal plead no error in the learned magistrate's determination of the s 15 claim. In my view, even though it is not a point raised in the appeal, it is an unsatisfactory outcome that the height issue was not decided in the trial below.
The error pleaded in ground 2 is a failure to consider and determine a general law claim for damages for breach of contract. At trial, that claim was not pursued. Neither was it resolved. The learned magistrate dismissed the s 15 claim, but did not dispose of the general law claim.
I am not satisfied that this ground affords no reasonable basis for the appeal, or that the ground has no reasonable prospect of success.

Conclusion

For these reasons, I would dismiss the defendants' application.
Ending on a cautionary note, I would observe, firstly, that this outcome should not serve to encourage the claimants in this appeal and, secondly, that the resources applied by the defendants in seeking to strike out the appeal should have been reserved for the appeal hearing itself. Except in the clearest of cases, a strike-out application is no more economical than a hearing of the appeal.