The earlier Supreme Court proceedings
7 Before the Land Board determined the first application, Mrs Erratt filed a summons in the Supreme Court of New South Wales seeking an interim order that the pre-existing fence line was to be re-erected; secondly, an injunction preventing the dismantling of that fence; and thirdly, a determination as to the location of the boundary between the two properties were sought. On 23 June 2006 Campbell J made the interim orders sought by Mrs Erratt. These were varied by Gzell J in September 2006.
8 On 2 December 2006, Mrs Erratt filed an amended summons seeking a declaration and orders that the fence line was located on the Grills property, 15 meters from the creek and that a fence be erected in that position. On 7 December 2006, interim consent orders were entered into including the construction of a fence with a gate by the Grills. The handwritten orders read:
"By Consent
1. The plaintiff agrees to allow the defendants to erect a fence along the topside of the western border of Tilbuster Ponds.
2. The defendants are permitted to install a gate in the existing fence and the new fence to be erected pursuant to order 1 above."
3. The existing fence is to remain in place until the proceedings are finalized.
4. The existing fence, and the fence running along the defendants' northern boundary are to be rebuilt in such a way that they become lamb proof.
5. The defendants are not to drive any vehicles through the new fence onto the bed of Tilbuster Ponds.
6. The defendants and their children and the defendants' parents are the only persons permitted to use the creek (Tilbuster Ponds) for general purposes.
7. The defendants are allowed to continue using Tilbuster Ponds to water and exercise horses.
8. The gate installed in the new fence is to be locked at all times, when not in use.
9. If the defendants need to move the pump, due to lack of water in existing hole, the defendants are to notify Mr Hoy and Mr Hoy is to provide assistance to move the pump.
10. The defendants are not permitted after the erection of the new fence, to gain access to plaintiff's property through the existing gate in the northern boundary of the defendants' property."
9 Both parties obtained surveys. They were then able to agree that the location of the common boundary was the middle line of the creek known as Tilbuster Ponds.
10 On 29 June 2007 terms of settlement were filed. They read:
"The parties agree to settle this matter on the following basis:
1. The parties agree that the western boundary of the portions of the plaintiff's property comprised within original Crown Grant Vol 438 Fol 167 and Crown Grant Vol 4047 Fol 95 and now included in part Folio Identifier 6/717734 is the middle line of the creek known as Tilbuster Ponds.
2. The parties agree that the eastern boundary of the portions of the defendants' property comprised within the original Crown Grant Vol 1616 Fol 33 and now included in Folio Identifier 3/565793 and Folio Identifier 4/565793 is the middle line of the creek known as Tilbuster Ponds.
3. The parties are to comply with the orders in paragraph 10 of the determination by the Armidale Land Board dated 13 February 2007.
4. The existing fence located adjacent to the western bank of Tilbuster Ponds is to remain in situ until 24 August 2007 or, in the event that the Land Board must make a ruling pursuant to order 10(c) of its determination dated 13 February 2007, 8 weeks from the date of that ruling or until the new fence is erected, whichever is the earlier.
5. The proceedings are dismissed.
6. Each party is to pay its own costs of the proceedings."
11 It is necessary to refer to Order 10 of the decision of the Local Land Board dated 13 February 2007. Order 10 reads:
a) The Board makes an Order that the give and take fence be erected on the site depicted on the aerial photograph marked Exhibit 3, except that the fence is to be located on high bank of the adjoining owner's property, and not as depicted on the aerial photograph. The fence is to be centred on the boundary between Lots 3 and 4 in DP 565793 and to enable the applicants to use 50% of the creek frontage to Lots 3 and 4. The Board takes the views that the fence should be angled across the creek to reduce the damage to the fence during flood events. The fence should also be angled at the northern end to provide practical access to the creek for the horses. A gate is to be provided in the fence for the applicants' to gain access to other sections of the creek as provided by the Orders of the Supreme Court.
b) The fence is to consist of at least one barb wire, hinge joint and such other plain wires necessary to make it stock proof.
c) Where the fence crosses the water, the fence will consist of drop chains that are electrified.
d) Both parties are to obtain fresh written quotes within one month of this Order, from independent reputable fencing contractors for the construction of the fence.
e) If the parties are unable to agree within a further 7 days as to which quotation should be accepted then each party may within a further 7 days, send their preferred quotation to the Registrar, with a request that the Chairman make the selection. The Chairman in making that selection will not make any independent enquiries in relation to the bona fides or licence status of the proposed fencing contractors.
f) The party whose quotation is accepted/selected, is to arrange for and enter the contract with the fencing contractor, for the fencing work to be carried out, and to advise the other party of the day on which the fencing work will be carried out.
g) When the quotation has either been accepted or determined by the Chairman, the parties are then required to contribute equally to the amount stated in this quote for the work specified in paragraph (a). Both parties are to pay their contribution for the cost of the fencing work to the fencing contractor on the day of completion of that fencing work.
h) Subject to the availability of the fencing contractor, the fencing work is to be completed within two months of the acceptance of the quotation.
i) There is no order as to costs."
12 Neither party had seen Ex 3 referred to in Order 10 (Ex E in these proceedings) at the time the earlier Supreme Court proceedings were settled. It was some time before the parties obtained a copy of the Land Board's Ex 3.
13 By paragraph 3 of the terms of settlement, both parties agreed to comply with the orders in [10] of the determination by the Armidale Land Board dated 13 February 2007. Paragraph 10(a) states "…A gate is to be provided in the fence for the applicants' to gain access to other sections of the creek as provided by the Orders of the Supreme Court." Order 10(a) has not been varied or set aside. In my view, Order 10 says that a gate is to be provided in the fence.
14 Remembering that the boundary is defined as being the middle line of the creek known as Tilbuster Ponds, the type of fence was to be what is known as "a give and take fence". The rationale for a give and take fence has been explained by Barton J in Landale v Menzies [1909] 9 CLR 89 at 105. If a fence was:
"placed in the creek bed, ad medium filum aquaue , the first flood would sweep most of it away. These are the conditions which in all similar cases give rise to the erection by adjoining holders of what is called a "give and take fence". The very name imports the thing that happens, namely, an adjustment of the direction of the fence by way of compromise. Each holder gives some country and some water, and takes - that is receives - some of each from his neighbour. Thus a less tortuous line is achieved, to the great benefit of both parties in the saving of first costs and upkeep…."
15 The parties now agree that the give and take fence is to be constructed on the pink line that appears in Ex A. A copy is reproduced below. This agreement came about after the 18 April 2008 site meeting when a surveyor and the Chairman of the Lands Board pegged the fence and created this diagram.
16 The pink line follows a fairly straight line from the north (the northern portion) with a flat bottomed "U" shape (also known as the middle portion) and then a straight portion known as the southern portion. The northern and southern portions are both about 70 metres in length and the U shape is about 140 metres in length.
17 On 13 February 2007 the Local Land Board, following an onsite visit, had issued a determination as to where the fence was to go. It also ordered that, if the parties were unable to agree as to who should carry out the fencing work then the Chairman of the Lands Board would make that decision. On 19 September 2007, the Chairman appointed GE & LM Fittler to do the work.
18 On 9 July 2007, Mr Fittler attended the site and prepared a quote. He considered that it was an unusual job because there were no survey pegs or other markers in place to indicate the exact location of the fence. Mr Fittler read the Land Board determination dated 13 February 2007 together with a black and white photocopy of a photograph, that outlined were the fence was to be built. Mr Fittler was told by Mr Grills that he was to quote for the U section of the fence only. After examining the photograph and the determination, Mr Fittler concluded that the position of the fence was roughly as depicted as shown in the photograph. While at the site, he observed there were existing fences along the northern and southern portions.
19 Mr Grills gave evidence that he understood that Order 10 referred only to the U portion of the proposed fence. He took this view, because he says, that the orders did not cover the northern and southern portions of the boundary. Thus, he says that he believed he was entitled to erect fences on the northern and southern portions. This view is reflected in the contents of the next letter.
20 On 17 September 2007, Mr and Mrs Grills wrote to Mrs Erratt's solicitor in the following terms:
"1. The boundary dividing the two properties is the centreline of the Creek.
2. We have not entered onto Ms Erratt's property, and have erected a fence on our own property.
3. The Land Board made no mention of any fence on the northern or southern end of the 'V' fence in the centre of the two portions. Therefore the fence we have erected has no bearing on the Land Board order.
4. We do not believe that we have done anything wrong we are just trying to finalize the fencing, so when the Land Board decide on a quote for the 'V' fence, in the centre of the portions, the fencing will be of a stock proof standard."
21 On 18 December 2007, the Registrar, Central Region Land Boards wrote to the parties and stated:
"Reference is made to your correspondence dated 5 December 2007 regarding compliance with the orders of the Local Land Board which sat in Armidale on 13th February 2007. The Chairman has asked me to respond to your enquiries as follows.
A request was made by Patterson, Byfield & Bryen, solicitors for Mr & Mrs Erratt, for an inspection to be conducted of a fence that had been erected between their client's and your client's properties. The purpose of this inspection was to ascertain if the fence had been constructed in accordance with the Local Land Boards' orders of 13th February 2007. A Department of Lands officer attended the Erratt's property on 22nd November 2007 and a report was prepared for the Chairman's consideration.
The Chairman has determined from the information provided in this report that the fence has not been constructed in accordance with the orders of the Local Land Board. Accordingly, the fence as ordered by the Board is to be constructed within 28 days of the date of this letter by the fencing contractor selected by the Chairman (GE & LM Fittler). As previously advised both parties are required to contribute equally to the amount stated in the quotation for the work specified in section (a) of the order. Both parties are to pay their contribution for the cost of the fencing work to the fencing contractor on the day of completion of that fencing work. Any costs associated with the fencing work already completed that is deemed not to be in compliance with the Board's order are to be paid by your client.
The Chairman has also advised that the agreement as to the boundary between the properties as filed in the Supreme Court did not alter the earlier agreement as to the maintenance of the fence on the western side of the creek."
22 Mr Grills has now conceded that the fencing he constructed on the southern and northern portions of the fence line are not in the correct position. Mr Fittler was also under the misapprehension that he had only to construct the fence in the U section and he had only quoted for this portion.
23 On 10 January 2008, Mr Fittler returned to the property to put in markers in anticipation of doing the work. He planned to commence the work the next day. That evening Mr Fittler had a conversation with Mr Grills. Mr Grills said words to the effect "If Mrs Erratt wants the fence moved within reason, I'm not worried. I'm also happy for netting to be used. We just want to get the fence up." Later that night, Mr Fittler rang Mrs Erratt and said words to the effect "Would it be ok to meet you on your property to discuss the fencing that I had quoted on. Can I have permission to have access to your property to do the job?" Mrs Erratt said, "Yes, we'll meet tomorrow."
24 Between 8.10 am and 8.40 am on 11 January 2008, Mr Fittler met with Mrs Erratt and her farm manager Mr Noel Hoy. Mr Fittler showed them the markers he had placed and informed them "John and Pip are happy to move the fence within reason from where I've pegged if you thought there may be a problem for your stock. They're also happy for netting which wasn't quoted." Mrs Erratt said, "Where the pegs are is totally wrong. If the fence is constructed there I'd have to go back to the Land Board and get the fence pulled down and get it put up in the right spot." While Mr Hoy agreed that Mr Fittler did ask those questions, he did not agree that Mrs Erratt gave those answers.
25 As there was no agreement between the parties as to the location of the fence, he did not proceed with the job. Mr Fittler still does not wish to return to erect the fence.
26 On 11 January 2008, Mr and Mrs Grills filed a further application in the Local Board seeking "Fence from halfway between lot 3 down on Erratt property to halfway between lot 4 - as per diagram, using the rest of the new fence as the rest of the fence." In other words, the Grills were seeking to alter the boundary to recognise the fences they had constructed on the northern and southern part of the boundary.
27 On 20 February 2008, Mr and Mrs Grills lodged a further application (the third application) to the Local Land Board seeking an order for the Land Board to determine the manner in which the fencing work between the adjoining properties as follows. "Fence both Grills and Erratt sides of the creek with flood gates at either end."