Wyness v Roennfeldt

Case [2023] SASCA 77

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

WYNESS v ROENNFELDT

[2023] SASCA 77

Judgment of the Court of Appeal  

(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)

13 July 2023

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY

REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - FENCES AND FENCING - QUALITY OF FENCE

This is an application for leave to appeal from a decision of a single judge, on appeal from the Magistrates Court of South Australia. The parties are neighbours whose properties abut at their rear. Each made extensive aesthetic improvements to their side of the fence. The applicants also built raised wooden decking and a privacy screen separate to the fence, but with the effect of raising its height. Dissatisfied with the effect of the screen, the respondents obtained development approval to increase the height of the fence to conceal it. The appellants, dissatisfied with the effect of the screen, obtained development approval to increase the height of the fence to conceal it.

At some point thereafter, the fence began to deflect towards the respondents’ property. The applicants instituted proceedings in negligence in the Magistrates Court. The respondents counterclaimed. Both the applicants and respondents adduced expert engineering evidence. The magistrate directed that the experts prepare a joint report. The experts disagreed in significant respects but agreed that there was a deflection in the fence as described in the joint report. The Magistrate dismissed the action in negligence and also the counterclaim, finding that neither party was at fault.

The proceedings were also brought under the Fences Act 1975 (SA). The magistrate found that the fence was not an adequate fence within the meaning of s 12 of that Act. The magistrate, noting the issues of access to the fence as well as the costs of each proposal, agreed with Mr Deek, the applicants’ expert, that the rectification proposal was demonstrably inadequate and ordered that a new fence be constructed, with the cost to be borne equally by the parties.

The respondents appealed against this decision on the basis that the magistrate failed to give adequate reasons for her decision; should have found that the rectification proposal was feasible and a more desirable solution; erred by finding that the new fence was an appropriate fence; and erred by concluding that underpinning could not be ordered.

On appeal, the parties agreed that the matter should be disposed of in the Supreme Court upon the hearing of further evidence from the experts, Mr Deek and Mr Magryn.

The appeal judge upheld the appeal on all grounds in the Notice of Appeal, bar Ground 6. He ordered that the the parties were to take all necessary steps to ensure that the fence between their respective properties was remediated as soon as is reasonably practicable in accordance with the Scope of Works and associated documents comprising the proposal numbered 16300 prepared…

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Wyness v Roennfeldt [2023] SASCA 77
Case
[2023] SASCA 77
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal from a decision of Justice Parker of the Supreme Court of South Australia. The appeal was brought by the applicants, who sought leave to appeal against orders made in relation to a dispute concerning fencing between neighbouring properties.

The applicants raised two grounds of appeal. Firstly, they contended that Justice Parker erred in finding that there was no substance to concerns about the expertise of fencing contractors and that the cost of proposed rectification works would be substantially less than a full replacement. This ground was based on evidence that, since the original judgment, the contractor ordered to perform the works had declined to do so, and no other contractor was prepared to undertake the work for less than the original quoted price for a complete replacement. Secondly, the applicants argued that Justice Parker erred in preferring the scope of works proposed by the respondent's expert, which differed from the works originally ordered, in circumstances where this expert had subsequently proposed a modified scope.

The Full Court of the Supreme Court of South Australia, comprising Acting Livesey CJ and Bleby J, considered the evidence presented by the applicants, including an affidavit from their solicitor detailing new information regarding contractor quotes and the viability of rectification works. The Court noted that some of the information regarding the initial quotation by Complete Underpinning was available to the applicants prior to the original trial. The Court also observed that the respondent had undertaken to seek directions from the appeal judge regarding the scope of works, and that any necessary administrative arrangements for the hearing of such matters, even with the retirement of Justice Parker, could be addressed.

Ultimately, the Full Court refused the applicants' application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The grounds of appeal are as follows:1.In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95:a. Complete Underpinning have declined to perform the works as ordered; andb. No other contractor has indicated a preparedness to perform the works as ordered other than for more than the sum quoted by Complete Underpinning;the Honourable Justice Parker erred at [150]-[152] in finding that there was no substance to the concern of lack of expertise of fencing contractors to carry out the proposed work and that the cost of the proposed work would be substantially less than the total cost of installation of a New Good Neighbour Colorbond fence.2.In circumstances where, since the delivery of the judgment of the Honourable Justice Parker in [2022] SASC 95, the expert for the now Respondent has proposed a scope of works which differs from the works as ordered, the Honourable Justice Parker erred at [137] in preferring the proposal put forward by the expert for the now Respondent.The evidence in support of the application The applicants filed an 83-paragraph affidavit of Andrew Geoffrey Carpenter, solicitor for the applicants, on 14 March 2023. They have also filed affidavits of Mr Carpenter dated 11 April 2023 and 20 April 2023. The applicants characterise the first affidavit as containing evidence they seek to adduce on appeal if they are granted leave to do so. The first part of this affidavit relevantly contains the following assertions, some of which are clearly on information and belief:·part of the appeal judge’s rationale for finding in favour of the respondents was that the cost of rectification was cheaper, in that Complete Underpinning provided a quotation of $18,800. Mr Carpenter is advised by the appellants that ‘a quotation to completely replace the fence was in the vicinity of $30,000 which sum included demolition costs’;·Mr Carpenter is advised by the appellants that Complete Underpinning did not inspect the property prior to providing the quotation. This appears to have been the subject of comment by Mr Deek at paragraph [13] of the joint report. Mr Carpenter then opines that the quote by Complete Underpinning ‘could be seen as misleading’; ·Mr Magryn has been unable to secure a quotation from qualified trades to perform the works in accordance with the orders of the appeal judge. The only quotation received from trades who have viewed the site and can perform the works in accordance with Parker J’s orders comes to $38,434.00. Mr Carpenter then makes the submission that this ‘demonstrates that complete replacement on the fence is the most financially sound and viable option’;·Mr Carpenter has been advised by Mr Deek ‘and verily believe[s] to be true’ that the rectification of the fence is not a viable option and that complete removal is the only viable option. It is necessary to make some preliminary observations. First, if Complete Underpinning did not inspect the property before providing a quotation, that is something that was apparently known by the applicants prior to the single judge appeal. That was available to be explored at trial.

Decision

Reasons for decision

A change in the scope of works regarding the posts that are to be remediated is well within the contemplation of this liberty, as is any other change to the scope of works. The respondents have undertaken to ask that the matter be called on before the appeal judge pursuant to the liberty to apply. Whether that is to be heard by the appeal judge or another judge, given that the appeal judge has retired, but noting s 13A of the Supreme Court Act 1935 (SA), can be addressed administratively. Conclusion We refuse leave to appeal.

Ratio Decidendi

Legal Principle Established

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