Baypeak Pty Ltd v Lim [2005] VSC 77

Appeal - s 109 Magistrates' Court Act 1989 - Whether, for the purposes of s 4 Fences Act 1968, appellant and respondent are liable to construct or join in the construction of a dividing fence along an unfenced portion of boundary between their properties which is subject to an easement of carriageway - Whether the proposed fence and gate was an unreasonable or substantial interference, or a diminution of, any rights of the dominant tenement - Pettey v Parsons [1914] 3 Ch 653; Hose v Cobden [1921] VicLawRp 110; [1921] VLR 617; Gohl v Hender [1930] SASR 158; Dunnell v Phillips (1982) 2 BPR 9517; Wilson v Bahr (1991) V ConvR 54-392; Saggers v Brown (1981) 2 BPR 9329; Butler v Muddle (1995) 6 BPR 13.

I shall not repeat the references I made in Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513, at pp. 532-534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

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