4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS
JUDGMENT
HIS HONOUR:
Nature of the Application
1 This is the hearing of a charge of Contempt of Court.
2 The plaintiff and the defendant own adjoining blocks of land. The defendant is in the preliminary stages of constructing a new dwelling on his land.
3 Built hard against the boundary between the two lots, and on the plaintiff's land, is a freestanding building known as a cabana. The defendant had, prior to 12 August 2004, caused some excavation work to be carried out on his land, which had lowered the level of the land. In particular, excavation had occurred at the boundary, where the cabana was located. This excavation had got to a level which was below the level of the foundations on which the cabana was built.
4 The plaintiff began proceedings against the defendant on 5 August 2004, alleging that the defendant's building work was in various ways wrongful. On 12 August 2004 Young CJ in Eq made an order in the following terms.
"6. The defendant, by himself, his servants and agents, be and is hereby restrained, until Friday 27 August 2004, from using any large piece of earthmoving plant, bulldozer, pneumatic drill, or rock crushing plant or excavator, other than small hand-operated electric jack hammers and hand-operated rock-crushing manual tools used by individual workmen, in order to excavate sandstone or other rock and earth from the defendant's land for any purpose whatsoever.
7. The defendant, by himself, his servant and agents, be and is hereby restrained, until Friday 27 August 2004, from undertaking any work at all on the excavation of the defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the plaintiff's land, by any excavation means whatsoever, until such time as the defendant has caused the footing for the southern wall of the brick cabana constructed on the plaintiff's land which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, or in any such further specification of such unpinning work made by Mr McMillan in writing as is communicated to the defendant's solicitors within 7 days of the date of this order."
5 On 27 August 2004, when sitting as Duty Judge, I made orders by consent (though without admission on the part of the defendant) in the following terms:
"THE COURT ORDERS THAT:
The Defendant, by himself, his servants and agents, be and is hereby restrained until further order of the Court from
1. using any large piece of earthmoving plant, bulldozer, pneumatic drill, or rock crushing plant or excavator, other than small hand-operated electric jack hammers and hand-operated rock-crushing manual tools used by individual workmen, in order to excavate sandstone or other rock and earth from the Defendant's land for any purpose whatsoever, except as provided in Orders 2 and 3 below.
2. undertaking any work at all on the excavation of the Defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land, by any excavation means, whatsoever, until such time as the Defendant has:
(a) caused the footing for the southern wall of the brick cabana constructed on the Plaintiff's land which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the experts report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer dated 17 August 2004, which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as "Carno MBK Preliminary Drawings 605071-D-101A, 102A and 103-A' which comprise Appendix A to that supplementary report of Mr McMillan;
(b) served on the Plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the Plaintiff's land complies in all aspects with the terms of paragraph 2(a) above.
3. undertaking any work at all on the excavation of the Defendant's land adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land, except in accordance with the following manner, namely:
(a) by the use of a 4.5 tonne mini-excavator with a model 521 Indeco hammer ("model 521") but not nearer than 4 metres to the common boundary between the Plaintiff's land and the Defendant's land, subject to paragraph 3(c) below
(b) by the use of hand-held jackhammers, rotary grinders and rock saws within 4 metres of the common boundary between the Plaintiff's land and the Defendant's land
(c) by the use of a model 521 mini-excavator at all unless there is at all times a vibration monitor ("the monitor") installed and operating at the foundation level of the cabana on the Plaintiff's land fitted with an alarm mechanism, such as a horn and a flashing light, which is activated if vibrations being emitted by the model 521 mini-excavator are recorded by the monitor at or in excess of 5mm/s.
(d) by the use of a model 521 mini-excavator at all once vibration levels of 5mm/s have been recorded by the monitor, until such times as the monitor has been reset, but on the basis that the use of the model 521 mini-excavator will cease on each occasion that the monitor is being activated.
…
5. Each party have liberty to apply on 7 days notice, including liberty to apply to alter the terms of any of the interlocutory injunctions made by the court and to apply for such additional injunctions as [they] may be so advised to apply for.
THE COURT NOTES THAT:
The Plaintiff consents to the Defendant, by himself, his servants and agents, having access to the Plaintiff's land for the sole purpose of installing, maintaining, servicing, calibrating, setting and resetting the monitor referred to in order 3 above."
6 A copy of that order, endorsed with the notation, "If you disobey paragraph 1-3 of this Order, you will be liable to sequestration of property and to imprisonment" was personally served upon the defendant on 2 September 2004.
7 The charge now before the Court is in the following terms:
"3. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), by any excavation means, without having first:
(a) Caused the footing for the southern wall of the brick cabana constructed on the plaintiff's land, which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer, dated 17 August 2004 which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as 'Cardno MBK Preliminary Drawings 605071-D-101A, 102A and 103A' which comprise Appendix A to that supplementary report of Mr McMillan;
(b) Served on the plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the plaintiff's land complies in all respects with the terms of par (a) above.
PARTICULARS
(i) Paragraphs 1 and 2 of the Court's orders;
(ii) See the report of Mr DR McMillan, structural engineer, dated 9 September 2004 which is annexure 'A' to the affidavit of DR McMillan sworn 9 September 2004 (which accompanies this statement of charge), pages 3-4, answer to Question 4, which particularises the failure to comply with paragraphs 1 and 2 of the Court's orders;
(iii) No certificate which complies with par 3(b) above was served on the plaintiff before such excavation works were undertaken.
4. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate or approximate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), otherwise than in accordance with the following manner, namely:
(a) By the use of a 4.5 tonne mini-excavator with a model 521 Indeco hammer ("model 521") but not nearer than 4 metres to the common boundary between the plaintiff's land and the Defendant's land, subject to par 3.3 below;
(b) By the use of hand-held jackhammers, rotary grinders and rock saws within 4 metres of the common boundary between the Plaintiff's land and the defendant's land;
(c) By the use of a model 521 mini-excavator at all unless there is at all times a vibration monitor ('the monitor') installed and operating at the foundation level of the cabana on the Plaintiff's land fitted with an alarm mechanism, such as a horn and a flashing light, which is activated if vibrations being emitted by the model 521 mini-excavator are recorded by the monitor at or in excess of 5 mm/s;
(d) By the use of a model 521 excavator at all once vibration levels of 5 mm/s have been recorded by the monitor, until such time as the monitor has been reset, but on the basis that the use of the model 521 mini-excavator will cease on each occasion that the monitor is again activated.
PARTICULARS
(i) Paragraphs 1 and 3 of the Court's orders.
(ii) No monitor called for under the above order has ever been installed or used.
(iii) A mini-excavator with a hammer attachment has been used to undertake excavation works nearer than 4 metres to the common boundary between the Plaintiff's land and the Defendant's land.
(iv) No hand-held jackhammers, rotary grinders and rock saws have been used to excavate the Defendant's land within 4 metres of the common boundary between the Plaintiff's land and the Defendant's land.
5. The conduct charged in paragraphs 3 and 4 above constitutes contempt of paragraphs 1, 2 and 3 of the Court's orders by you."
Factual findings
8 In this judgment, any facts are found beyond reasonable doubt unless I say otherwise.
9 The plaintiff's land is known as 14A Ashley Street, Tamarama. The plaintiff lives there. The defendant's land is known as 10 Cross St Bronte. At the rear of the defendant's land is a parcel of land, also owned by the defendant, in the shape of a right-angled triangle, known as 10A Cross St. The right angle of that right-angled triangle has one of its sides running in a north-south direction, the other in an east-west direction. It is the right-angled triangle of land which was in the process of being excavated before Young CJ in Eq made his orders on 12 August 2004. The hypotenuse of that right-angled triangle is the common boundary between the plaintiffs land and the defendants land. The cabana constructed on the plaintiff's land abuts the westernmost part of the hypotenuse of the right-angled triangle. Thus, the southernmost wall of the cabana adjoins the excavation.
10 By 12 August 2004 the excavation had proceeded to a stage where the level of the defendant's land had been lowered below the level of surrounding lots of land by about five metres. A ramp, made of earth or rock-like material led in a westerly direction from the floor of the lowered section of the land, to adjacent but higher land within 10 Cross Street. The ramp emerged from the excavated area at the southern end of the western wall of the excavated area.
11 The excavation was of an area that extended right up to the boundary between the plaintiff's land and the defendant's land. It had reached a level that exposed a wall of concrete blocks which were part of the cabana, a concrete footing on which that wall of concrete blocks was constructed, and the face of the rock and other earth-like material which underlay the footing.
12 Because the excavation was in material which was to a very large extent sandstone, it was possible for the excavation to be made with edges which were, for all practical purposes, vertical. The excavation which had been made at the boundary where the cabana was located, had an edge which was substantially vertical. As well, the part of the western wall of the excavation which was not covered by the ramp was substantially vertical.
13 While a large part of the footing of the southernmost wall of the cabana was founded on solid sandstone, one portion of it was not. In roughly the centre of the length of that wall, some sandy material underlay the footing.
14 Mr Douglas McMillan is an engineer, who works for an engineering firm known as Cardno MBK, which was engaged by the plaintiff. He had observed that sandy material, and reported on what should be done about it, in a report made available to the solicitors for the defendant on or prior to 12 August 2004.
15 Paragraph 5.3 of the expert report on Mr McMillan annexed to his affidavit sworn 4 August 2004, referred to in the orders of Young CJ in Eq of 12 August 2004, and also in the consent orders made on 27 August 2004, is in the following terms:
"Before removing the adjacent materials that prior to excavation had provided lateral restraint to the sandy materials under the central portion of the footing on the south wall of the cabana, the portion of the footing not bearing on rock should have been underpinned to below the proposed excavation level. Excavation without underpinning in such circumstances radically weakens the support afforded to the footing and much increases the likelihood of settlements and associated distress. Underpinning of the affected portion of the footing is required to restore the level of support previously enjoyed and to prevent future movements and possible distress."
16 By 16 August 2004, Mr McMillan had noticed that there was a second part of the footing of the southernmost wall of the cabana which was not founded on solid sandstone. It lay within about 0.6 metres of the westernmost corner of the cabana. There, for a length of approximately 0.6 metres, was the trench for a sewer line which lay below the level which the excavation had reached. That trench had been filled in with soil.
17 On 16 August 2004, there was a meeting onsite between Mr McMillan and a Mr Crino, an engineer advising the defendant. By that time the sandy material which underlay part of the centre of the wall had been removed and replaced with a kind of underpinning, made of brickwork. Neither Mr Crino nor Mr McMillan was satisfied with that work. Nothing had been done, by 16 August, concerning the soil in the sewer pipe trench. After the inspection, Mr McMillan prepared a supplementary report dated 17 August 2004, in which he concluded:
"As the thickness of the underpinning was indeterminate, as no subsoil water drainage had been provided, and as the packing between the top of the underpinning and the soffit of the footing over was inadequate, Mr Crino and I agreed that the existing brickwork should be demolished and replaced with the underpinning as detailed on our Drawings 605071-D-101, 102 and 103, attached as Appendix A. Shown on these drawings is underpinning where the natural rock occurred below the soffit of the wall footing and in the sewer trench location. The latter is not intended to provide vertical support to the footing, but to retain the soil fill within the trench on the No. 14A Ashley Street side of the common boundary."
18 There were three drawings annexed to that report. Each of them bore the name and logo of Cardno MBK. Two of them (identified by alphanumeric codes 605071-D-101A ("101A") and 605071-D-102A, ("102A")) were plans which identified the site and certain features of it, one at a scale of 1:500, the other at a scale of 1:200. The drawing at the scale of 1:200, with the suffix 102A, identified the location of the sewer pipe trench, and indicated the length of the wall of the cabana where the sewer pipe trench crossed the boundary by the words "approx. ext. of underpinning". I will refer to that location as "the western underpinning site". Drawing 102A also identified the length of the wall in the centre of the cabana wall which caused Mr McMillan concern, and also identified it by the words "approx. ext. of underpinning". I will refer to that location as "the eastern underpinning site".
19 The third drawing (identified by the code 605071-D-103A ("103A")) was of a section of the underpinning intended to be constructed, showing it bearing upon rock, and showing the materials of which it was to be constructed so as to underpin the soffit of the foundation. It was a drawing which was not appropriate for the underpinning of the foundation at the sewer trench (as the soil-filled trench continued down below the level of the excavation, and there was no rock to bear upon), and indeed Mr McMillan did not intend it to be a drawing of the kind of underpinning he wished there to be for the foundation at the sewer trench.
20 The case proceeded before me on the basis that Mr McMillan's report dated 17 August 2004 had been communicated to the defendant's solicitors within seven days of 12 August 2004, and thus was a "further specification of such underpinning work made by Mr McMillan in writing" within the meaning of the orders made by Young CJ in Eq on 12 August 2004.
21 The plan identified in Mr McMillan's report with the suffix 102A had been prepared on or before 16 August 2004. Mr McMillan had it with him at the site inspection with Mr Crino. He discussed it with Mr Crino at the site inspection, and conducted the site inspection by reference to it. Mr McMillan told Mr Crino that that drawing required the defendant to infill between the rock walls of the trench with brickwork so as to retain the soil in the trench and under the cabana. There was never any suggestion in the discussion between Mr McMillan and Mr Crino about that brickwork providing vertical support to the original concrete footing over the sewer, because the existing footing was obviously capable of spanning the 0.6 metres (approximately) across the trench. In fact the brickwork that they talked about would not provide any vertical support to the footing.
22 Mr McMillan understood that it was a requirement of Sydney Water that any construction over a sewer not impose a load on the sewer. He believed that brickwork constructed over the loose filling above the sewer pipe and grouted hard to the rock walls of both sides of the narrow trench would fulfil that requirement, in that the self-weight of the brickwork would be transferred to the sides of the trench, and, accordingly, would not impose loadings on the sewer pipe. In some fashion, he discussed with Mr Crino the rationale for this design.
23 On 17 August 2004 Mr Crino sent Mr McMillan a facsimile, saying "we are in receipt of your preliminary drawings 605071-D-101, 102, 103 and wish to advise that we concur with the extent of works and your underpinning detail depicted there-on." Even though the drawing numbers which Mr Crino quoted in this facsimile do not have the letter "A" at the end of them, I am satisfied that he was referring to the same three drawings as were annexed to Mr McMillan's report of 17 August 2004.
24 In correspondence dated 20 August 2004 to the defendant, Mr Crino stated:
"We wish to advise that Mr Mark Larsson of Direct Building Pty Ltd Underpinning Contractors have been engaged to carry out the works as specified on the abovementioned drawings and commencement of works will be on Wednesday 25 August 2004.
Mr Larsson advises that the work will be complete by Friday and periodical site inspections will be called during the process to ensure compliance with the documents prepared by Cardno MBK.
I undertake to personally conduct such inspections as and when required and issue relevant certification of the works."
25 By the end of 10 September 2004 nothing had been done about inserting any structural material at all underneath the part of the foundation of the cabana at the western underpinning site. Nor had any certificate relating in any way to the underpinning of the footing for the southern wall of the cabana been served on either the plaintiff or Mr McMillan.
26 Underpinning work has been carried out at the eastern underpinning site. In fact it was not carried out exactly in accordance with Mr McMillan's specification, because the site conditions were found, upon removal of the underpinning which both Mr McMillan and Mr Crino found unsatisfactory, to not be suitable for the implementation of that design. However, Mr McMillan is satisfied with the adequacy of the work which was in fact done at the eastern underpinning site, and the plaintiff makes no complaint about departure from the precise terms of the order dated 27 August 2004 in that respect.
27 The excavation work which had been proceeding on the defendant's land before Young CJ in Eq made orders on 12 August 2004 had been carried out by Zoril Holdings Pty Ltd ("Zoril Holdings"). It is a company which carries out excavation and demolition work, whose directors and shareholders are members of the Kazonis family. Mr Michael Kazonis is one of the directors.
28 When the orders were made on 12 August 2004, excavation work stopped, and the excavator was removed from the site. On 9 September 2004 Mr Michael Kazonis delivered the excavator back to the site. He did not take the excavator down into the previously excavated area, but left it on the unexcavated land. He did no other work at the site that day.
29 The excavator which Mr Kazonis delivered is owned by Zoril Holdings. It travels on caterpillar tracks. It has a cabin for a driver to sit in, and in front of the cabin is a mechanical arm, hinged in several places. Different types of tool can be attached to the end of this arm, and manipulated or operated using it. One such type of tool is a scoop bucket. The scoop bucket cannot be used to break rock. Another is a pneumatic hammer, which can break rock.
30 On 10 September 2004 (which was a Friday) Mr Kazonis went back to the site. He arrived at eight o'clock, or a quarter to eight, or thereabouts. He had an appointment, for around nine o'clock, to meet on the site a geophysicist called Allan Li. Mr Kazonis' understanding was that "the purpose of him coming out was to install a monitor, vibration monitor before I could start working on that site." As well, he understood that Mr Li was to do some testing in connection with the vibration monitor.
31 Mr Kazonis did some work on the site before Mr Li arrived. Using the excavator with the scoop bucket attached to its arm, he cleaned up the site. During the time that the excavation had been halted, some soil had fallen off the ramp onto the floor of the excavation site. Whether for that or some other reason, there were loose rocks and soil on the floor of the excavation site. In particular, there were loose rocks and soil along the base of the part of the western wall of the site which was not covered by the ramp, and extending out from the base of the wall. That collection of loose rocks and soil went all the way along the part of the western wall not occupied by the ramp, right up to where it was adjacent to the cabana. Using the scoop attachment on the excavator, Mr Kazonis collected the loose soil and rock, including from immediately adjacent to the cabana, and put it onto the ramp. The rocks collected included ones Mr Kazonis described, accurately, as "big boulders" - though they were still of a size which could fit in the scoop bucket of the excavator. He did this work for half an hour or forty minutes. What he was seeking to do was to expose the horizontal surface of the rock along the western end of the excavation site, so that it would be ready for him to carry out further rock-crushing activities, and also to clear the site so that the excavator could travel over it easily. Another purpose of Mr Kazonis exposing at least a part of the horizontal surface of the rock was that it would be ready for some tests that he understood Mr Li wanted to perform. In the course of doing that work both the part of the excavator on which the cabin was located, and the scoop bucket at the end of the excavator's arm, were on occasions within 4 metres of the cabana.
32 Next, Mr Kazonis fitted the pneumatic hammer attachment to the excavator arm. He did nothing with the pneumatic hammer until Mr Li arrived. Mr Li arrived after 9 am. Mr Li spent four or five minutes setting the vibration monitor up. Then, Mr Kazonis operated the pneumatic hammer, with its point down in the rock, in four or five different spots, for twenty or thirty seconds in each spot. The places where he operated the pneumatic hammer were ones indicated to him by Mr Li. On those occasions the hammer head was "drilling into the ground, it's banging into the ground …". In the course of that, the hammer broke some of the rock it was drilling into. Mr Kazonis understood that the purpose of him doing this was to enable Mr Li to test the vibration monitor. The entire time that Mr Kazonis was on the site after Mr Li arrived was not more than 15 minutes. Mr Kazonis then left the site, and did not return that day. He was in a hurry to leave, as he wanted to visit his wife and newborn baby in hospital, so did no extra cleaning up after he had operated the hammer.
33 Mr Kazonis had marked a line on the western wall of the excavation site (which he referred to as the back wall), 4 metres from the cabana. Using that line as a guide, when he used the pneumatic hammer he tried to ensure that no rock splitting occurred at a place that was within 4 metres of the cabana. While his method of measuring - by a single line on the back wall, and lining up where he was working with that line by eye - was not a particularly precise one, it is not shown that he applied the point of the pneumatic hammer to the rock within 4 metres of the cabana.
34 There is evidence of the plaintiff, which I accept, to the effect that on 10 September 2004 he saw the excavator, with the hammer attached, operating within one metre from the southernmost wall of the cabana. That evidence does not specifically identify the part or parts of the excavator that were within one metre of the wall. It is an open possibility, on that evidence, that it was part of the body of the excavator that was within one metre of that wall, not the tip of the operating hammer.
35 There is also evidence from the plaintiff's solicitor, which I accept, that he visited the site on 10 September 2004, at 3:00pm, and observed the excavator approximately two metres from the southern wall of the cabana, with the hammer attachment fixed to it. I infer that this is where Mr Kazonis left the excavator at the time he finished work earlier that morning.
36 Mr Li set up the vibration monitor so that it was located on the defendant's land, in the general area of the north-western corner of the right-angled triangle. It was placed on the floor of the area being excavated, a small distance east of the soil-filled trench underneath the cabana foundation. The land on which it was placed was below the bottom of the footing on which the cabana foundation was constructed. The monitor was contained in a box. The top of that box was below the bottom of the footing on which the cabana foundation was constructed.
37 The Notice of Motion alleging contempt was filed on 13 September 2004, and was made returnable that afternoon. At a court hearing in the afternoon of 13 September 2004 legal representatives of the defendant became aware that the plaintiff contended that the monitor was not installed in the position that was required by the orders. The defendant's lawyers took the view that the monitor had been installed in the correct position. Under an agreement that the respective lawyers reached on 20 September 2004, the monitor was moved to a place on the plaintiff's land, at the foundation level of the cabana, immediately in front of the cabana and on the tiled courtyard leading to it.
Construing Consent Orders by Reference to Surrounding Circumstances
38 Several questions of construction of the orders arise in this application. I shall deal at the outset with some questions which relate to principles to be applied when construing orders in a contempt application.
39 The defendant submits that the orders in the present case should be looked at as a freestanding piece of prose, unaffected by any surrounding circumstances, for the purpose of deciding their construction. I reject that submission. In Rogers v Wentworth (New South Wales Court of Appeal, 18 April 1988, unreported); BC8802033 Hope JA (with whom Samuels JA agreed) said, at 18 of BC8802033:
"'A consent order must.....be construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention:' General Accident Fire and Life Assurance Corporation Limited v Inland Revenue Commissioners [1963] 1 WLR 421 at 430 per Plowman J; affirmed [1963] 1 WLR 1207. In In re Frackelton v McQueen; In re a Solicitor [1910] QSR 1 at 6,7, Chubb J said:- "While this judgment stands, it is final and unimpeachable, and cannot, unless it is ambiguous (if even then), be explained or added to by extraneous evidence", and "the Undertaking ... is embodied in the judgment, and that is all we have to look at, and construe....." The other members of the Court did not express any view on this matter, and indeed, notwithstanding what he had said, Chubb J himself seems to have had some regard to the surrounding circumstances. When the matter was being considered by the High Court: Frackelton v Atthow (1909) 10 CLR 522, Isaacs J considered the construction which Chubb J gave to the undertaking, and without discussing any principle of construction, had regard to the surrounding circumstances and came to a different conclusion. There is nothing in this decision which would lead me to any conclusion other than that the statement of principle by Plowman J is correct, and I accept that it is."
40 Mahoney JA said, at 6-7 of BC8802033:
"What is here in question is the construction of an order made by consent and embodying a compromise made between the parties. In England the view has been taken that a consent order must be "construed in the light of any admissible evidence of surrounding circumstances, but without direct evidence of the parties' intention", that evidence including "evidence as to the nature of the dispute which was compromised by" the orders: see Halsbury Laws of England , 4th ed, Vol 26, par 527, note I and the case there cited, General Accident Fire & Life Assurance Corporation Limited v IRC [1963] 1 WLR 421 at 430-1; 1207. The dispute in the present case was as to the withdrawal of the second caveat.
In Australia, the general principles have been referred to by the High Court in Harvey v Phillips 95 CLR 235. In that case, the court referred to the circumstances in which, and the principles upon which, a consent order embodying a compromise may be set aside: at 243-4. The court did not, in terms, equate the consent order to the compromise on which it was based. It cited with approval a dictum of Lindley LJ in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280 where his Lordship said that "a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual .... To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not". In that case the court was not directly concerned with the construction of the compromise agreement or the evidence to which reference might be made in the interpretation and construction of it. The observations of Chubb J in In re Frackleton v McQueen; In re a Solicitor [1910] QSR 1 at 6-7, may perhaps suggest that regard may be had only to the terms of the order: the terms of the other judgments and of the judgments of the High Court: 10 CLR 522; do not, I think, deal directly with the question.
The view expressed in General Credits Ltd v Ebsworth [1986] 2 QdR 162 by de Jersey J: at 164 et seq; does not suggest any such limitation. See generally Baines v State Bank of New South Wales (1985) 2 NSWLR 729.
In interpreting and construing the compromise agreement, the court would not be limited to the mere terms of it. It would be entitled to go to the admissible surrounding circumstances. Those circumstances would include, inter alia, the nature of the dispute and that in respect of which the dispute existed. The court therefore could know that the dispute which the parties compromised was one in relation to, as they believed, the second caveat. Therefore, in my opinion, the compromise, insofar as it referred to "the caveat", would be construed to refer to the second caveat. If it be proper, in construing the compromise agreement, to take into account such evidence, it must be proper to refer to it in interpreting and construing the consent order. It would not be contemplated that the consent order would be construed differently from the compromise which it was to carry into effect."
41 While this decision in Rogers v Wentworth (New South Wales Court of Appeal, 18 April 1988, unreported) is binding upon me and provides authority for using surrounding circumstances to construe a consent order, there are also other cases, which were not relied upon by the judges who decided Rogers v Wentworth, which lead to the same conclusion. In Dinch v Dinch [1987] 1 WLR 252 Lord Oliver of Aylmerton (with whom Lord Keith of Kinkel, Lord Templemen, Lord Griffiths, and Lord Goff of Chieveley agreed) said, at 263:
"One has, as it seems to me, simply to look at the order and any admissible material available for its construction and determine what the court intended - or, in the case of the consent order, what the parties intended - to effect by the order." (emphasis added)