Zivanovic & Anor v. Coles
[2006] QSC 299
•27/09/2006
[2006] QSC 299
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
WILSON J
No 3860 of 2006
| GEORGE and MIRJANA ZIVANOVIC | Applicants |
| and | |
| ROBERT JOHN COLES and JENNIFER GAYE COLES | First Respondents |
| and | |
| TREVOR STUART FARLOW | Second Respondent |
BRISBANE
..DATE 27/09/2006
JUDGMENT
HER HONOUR: By an originating application filed on 10 May 2006, the applicants seek declarations that certain dividing fences and a jetty encroach on their property and associated relief. There is a cross application for a declaration that the application has been compromised.
The applicants are the owners of 13 Neptune Court, Paradise Waters on the Gold Coast. The respondents are their neighbours. The first respondents, Mr and Mr Coles, own 11 Neptune Court, while the second respondent, Mr Farlow, owns 15 Neptune Court.
The applicants are constructing a new house on their property. According to a survey commissioned by them, the dividing fences between the applicants and the first respondents on the one hand and between the applicants and the second respondents on the other are not on the boundaries but rather on the applicants' property.
On the Coles' side there is a palm tree and other shrubbery along the fence line on the applicants' side of the true boundary line. The fence line on Mr Farlow's side is clear. Access to the building site has been tight and during construction some damage has been caused to property owned by the Coles.
There have been ongoing exchanges between the applicants and the respondents about the demolition of existing fences and the construction of new dividing fences or walls. Unable to resolve the issues between them, the applicants on the one hand and the respondents on the other engaged solicitors about a year ago.
The applicants served notices under the Dividing Fences Act 1953. The solicitors endeavoured to negotiate a compromise of all issues over many months. They came close to settlement on at least one occasion before August 2006 but the negotiations broke down.
On 9 August 2006 the solicitors for the applicants wrote to the respondents' solicitors in these terms:
"We refer to the writer's telephone conversation with your Ms Miller today and write to confirm that we hold instructions to make a final offer to resolve the matter in relation to the dividing fences.
Our client has instructed us to make an offer on the following basis:
Our client is to meet the cost of removal of both dividing fences and the palm tree and other shrubbery or other objects in order to remove any obstacle to the erection of the new fences.
Our client is to meet the entire cost of both dividing fences which are to be constructed of concrete blocks identical to that fence constructed at the front of our client's property.
Our client is to meet the cost of rendering the top and his side of each fence.
The fence is to be constructed strictly in accordance with the requirements of the Local Government Authorities.
The Supreme Court proceedings be discontinued with no order as to costs.
We would be pleased if you would take instructions from your clients in relation to this offer and contact us immediately instructions are to hand.
We note your client's desire to resolve the property damage matter and in order to achieve that our client has recently contacted his insurer, to ensure that the assessment process commences as soon as possible and in due course your clients can expect to be contacted by an Assessor should the insurer deem an assessment necessary.
We await your advices."
The issue for determination is whether the proceeding before this Court was compromised by the acceptance of this offer in unequivocal terms.
The Court received affidavit and oral evidence from Ms Margaret Catherine Miller, the solicitor for the respondents and Mr Neil Douglas Brew who is handling the matter in the office of the applicants' solicitors.
According to Ms Miller, she obtained instructions to accept the offer from Mr and Mrs Coles almost immediately and from Mr Farlow, who had been away from the Gold Coast, early on the morning of 16 August 2006. She said in her affidavit:
"On the morning of 16 August 2006, I telephoned the applicants' solicitors and spoke with Mr Brew. I said words to the effect of: I haven't been neglecting this matter, I had to wait for Trevor Barlow to get back for his instructions, he's been away building in Brisbane. I have them now and I am happy to say that both the Coles' and Mr Farlow accept your client's offer. I'm glad we've finally settled this after all this time."
In oral evidence she said that Mr Brew commented, "You're not going to be arguing about the specifications", to which she replied, "No, that's being dealt with in the letter because it says they're going to be in accordance with the Gold Coast City Council specifications. If it's not, then your client will know soon enough." She went on in her affidavit:
"Not quite one hour later, Mr Brew telephoned me and said, "I have some bad news for you. My client said we got the offer wrong and we should have only made it for Trevor Barlow.
I said, "I am not surprised that your client is trying to back out, this is what he has done all along. He made various offers to both my clients in the past and, when they accept them, he changes his mind. They are not going to be happy about this when I tell them."
Mr Brew sent a fax at 11.24 a.m. in these terms:
"We refer to the writer's telephone conversation with your Ms Miller today and write to advise that immediately after that telephone conversation the writer telephoned our client.
During the course of that discussion our client advised us that it was his intention to relay the offer of settlement only with respect to the dividing fence with the property owned by the Farlows.
Mr Zivanovic advised that the offer did not apply to the dividing fence with the property owned by the Coles as the cost of demolition and removal of the fence and the palm tree and other vegetation was such that he was not prepared to make the same offer to the Coles.
Accordingly, we would be pleased if you would take further instructions from your client Farlow as to whether he is prepared to accept the offer of settlement in the terms set out in our letter of 9th August 2006 in the absence of any firm agreement between Mr Zivanovic and the Coles.
We look forward to hearing from you immediately to receive such instructions."
The applicants then caused the application to be re-listed.
According to Mr Brew, when Ms Miller rang on 16 August she said she had instructions to accept the offer of 9 August subject to an agreement in relation to attendance and supervision (a previously contentious issue) and the satisfactory resolution of the property damage claim. He said he rang Mr Zivanovic:
"I then rang my client advising that the offer of settlement had been accepted in part by the Respondents subject only to the terms of the supervision of the demolition and removal of the fences, re-construction of the new fences and the payment of the Coles' claim in relation to property damage. George Zivanovic then said to me: There must be a misunderstanding. That offer was only in relation to Farlow. I did not make the same offer to Coles because of the additional cost of removing the palm tree and the other objects. I advised George that I would write to Margaret Miller immediately clarifying the offer, which I did by way of facsimile transmission dated the 16th August 2006. Exhibited to this affidavit and marked with the letter J is a copy of that correspondence.
Margaret Miller then telephoned me during the afternoon of the 16th August 2006 advising that Farlow would not agree to anything with my clients without there being an identical agreement with Coles and vice versa. Margaret Miller advised that our client either settled with both neighbours or he doesn't settle with any.
I say that the offer contained in the facsimile transmission dated the 9th August 2006 set out the general heads of the offer and that any settlement resulting from that offer was always subject to agreed access, supervision of the demolition and removal of the existing fences, the agreement as to the method of construction of the new fences and the resolution of the First Respondent's claim for property damage satisfactory to the First Respondents as was the case in the earlier negotiations in July 2006."
The dispute between the applicants and the respondents had been dragging on for many months. It was only in the later stages that Mr Brew assumed the carriage of it on behalf of the applicants, although he had been aware of it all along because he was working in the same office as the solicitor who first handled it on their behalf.
Mr Zivanovic spoke English with a heavy accent and his instructions may have sometimes been difficult to comprehend. According to Ms Miller, Mr Brew told her that Mr Zivanovic changed his mind on a number of occasions.
But Mr Brew would have had no such difficulties in his communications with Ms Miller, who spoke plainly and assuredly. I do not accept his evidence that when she telephoned on 16 August she said her instructions to accept the offer of 9 August were subject to an agreement in relation to attendance and supervision and the satisfactory resolution of the property damage claim.
Had she done so, I would have expected this to be raised in his fax sent at 11.24 a.m. after speaking with Mr Zivanovic. Instead he wrote only that his clients' intention had been just to make an offer to settle the claim with Mr Farlow.
Further, although the property damage allegedly suffered by the Coles had previously been a sticking point, it had been dealt with in the offer of 9 August by the applicants having contacted their insurer.
In previous negotiations, when nuts and bolts issues such as attendance and supervision had been raised, they had been dealt with by Ms Miller's preparing draft heads of agreement. Here they were not raised in the offer of 9 August and she had no cause to raise them in her telephone conversation with Mr Brew on 16 August.
I am satisfied that the offer of 9 August was accepted in unequivocal terms in the telephone conversation between Ms Miller and Mr Brew on 16 August. The application was thereby compromised.
I will hear counsel on the form of the order and on costs.
...
HER HONOUR: I order that the application filed by the applicants Zivanovic on 10 May 2006 be dismissed with no order as to costs.
On the cross application filed by Coles and Farlow, I declare that the principal proceeding has been compromised pursuant to an agreement reached on 16 August 2006. And I further order that the costs of the cross applicants Coles and Farlow be paid by the cross respondents Zivanovic, to be assessed on the standard basis.
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