(Another part of the "Scope" document makes clear that "DPC" means "Damp Proof Course" .)
23 The plan which Mr Scott prepared is a measured drawing. This is a type of drawing which architects use, and which is prepared by measuring the internal spaces within a structure with a tape measure. The process of preparing a measured drawing does not enable the preparer to ascertain whether any room he or she is measuring is exactly square. It has the limits on precision inherent in it which are inherent in any measurements made with a tape measure.
24 When Mr Scott inspected No. 2, he observed that the stairs leading from the upper ground floor to the lower ground floor were built to, and abutted, the western face of the eastern wall. As well, the brick pier also abutted that wall. The hearth and stone edge of the fireplace abutted that wall. In the living room area, the tiled floor was built to, and abutted, that wall. In the toilet area of the external laundry the tile floor was laid to, and abutted, that wall. Part of the wall was obscured by a custom-built wall unit which was built to, and connected with that wall.
25 On 15 February 2001 Ms North and Mr Marina entered a written agreement ("the Agreement"). It was entered after very lengthy negotiations, the details of which it is not necessary to recount, between the solicitors for the parties, and officers of the Council. In the Agreement, No. 2 was referred to as "Building", and No. 4 was referred to as "Adjoining Building". The Agreement contained the following recitals:
"C. In or about November 2000 Marina undertook certain demolition and construction work on his property, including the partial demolition of a structure near to the boundary between the Building and the Adjoining Building which structure is allegedly partly situated on each property.
D. A dispute arose between North and Marina as to the work in paragraph C above including the following:
(i) the ownership of the structure;
(ii) whether the work was in accordance with the Development Consent; and
(iii) their respective rights and responsibilities with respect to the structure generally.
E. The Woollahra Council, being the Council for the area in which the properties are situated, became involved in the dispute and issued the Orders. Marina disputes the validity of the Orders.
F. The parties have agreed to resolve the dispute, and all matters incidental to the dispute, including compliance with the Orders on the terms set out in this Agreement."
26 It contained the following definitions:
""Drawings" means the drawings and other documents prepared by Peter Scott, copies of which are annexed at Attachment A to this Agreement.
"Orders" means the orders issued by Woollahra Council to North and Marina on or about 2 January 2001.
"Wall" means the wall referred to in the Drawings and includes the remainder of the existing wall to be demolished as part of the Works.
"Works" means the work described in the Drawings and any materials or manuals to be supplied as part of that work."
27 It included the following provisions. Sometimes the word "you" was used to refer to Mr Marina, and "we" to refer to Ms North.
"3.1 You must allow us access to the necessary parts of the Adjoining Building to carry out and complete the Works in accordance with this Agreement, and you must comply with the other clauses of this Agreement and in consideration of that we will comply with the other clauses in this Agreement.
3.2 We must cause the Works to be carried out only by a licensed builder and strictly in accordance with, and only in the location indicated on, the Drawings. …
8.1 North will, within 28 days after the completion of the Works, cause to be prepared by appropriately qualified surveyors and lawyers and submit to Marina, documentation sufficient so that, if registered at the Land Titles Office, the documentation will create cross easements for the Wall, as referred to in sections 88BB and 181B of the Conveyancing Act 1919 .
8.2 Marina must execute the documentation and use his best endeavours to achieve execution by all other persons holding an interest in the Adjoining Building, and must return the executed documentation to North within 28 days of his receipt of it under clause 8.1.
8.3 The documentation must be executed by North and all other persons holding an interest in the Building as soon as reasonably practicable and the parties must arrange any such other necessary execution as may be required and take all necessary steps to achieve registration of the documentation.
8.4 This clause does not affect generality of clause 11.3. …
9.1 North must, on the date of this Agreement provide to Marina, a letter addressed to Woollahra Council to the effect that North will not object to an application made to modify the Development Consent provided that the modification is in substantially the same form as the draft letter dated 16 January 2001 from Marina to the Woollahra Council and the plan in 1 sheet titled "Project - Alterations and additions no. 4 Hargrave Street Paddington - changes to Roof Pitch of Garage and living pavilion to accommodate Council requested wall height" dated 14 January 2001, both of which documents were provided to North's solicitors by Marina's solicitors under cover of a letter dated 17 January 2001.
10.1 Following registration of the documentation under clause 8 and performance of clause 9, except as provided in this Agreement the parties mutually release the other from and against any claim that they might have had, but for this Agreement, against the other arising out of any of the matters referred to in the Background.
10.2 Marina must, on the date of this Agreement, provided the amount of $1,400 to his solicitors to hold in escrow for payment to North to reimburse the tenants of the Building for the cost of alternative accommodation for the period of the Work. The solicitors are hereby irrevocably directed to deal with this amount as follows:
(a) if an amount exceeding $1,400 is claimed by a tenant of the Building, the solicitors must provide the $1,400 to North upon notice from North of the amount of the claim (including a copy of the claim with supporting invoice);
(b) if an amount of less than $1,400 is claimed by a tenant of the Building:
(i) the solicitors must provide to North the amount claimed, upon notice from North of the amount of the claim (including a copy of the claim with supporting invoice); and
(ii) the remainder may be released to Marina;
(c) if no claim is made by the tenant of the Building within 3 months of the date of this Agreement, the solicitor may release the whole amount to Marina. …
11.3 Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that any other party may reasonably require to give full effect to this document.
11.5 This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect."
28 The drawings and other documents which made up the "Drawings", within the meaning of the Agreement, consisted of the plan prepared by Mr Scott, a copy of which is annexed to these reasons for judgment, the "Scope" document, relevant portions of which I have quoted at paragraph 22 above, and two documents which set out some detail of the manner in which the new wall was to be connected to both the stone wall at the southern end of the new wall, and to the brick pier.
29 On 26 February 2001 builders engaged by Ms North, built a new single skin dividing wall between No. 2 and No. 4 ("the New Wall") to replace the one which had been breached ("the Breached Wall").
30 By 26 February 2001, the foundation of the demolished eastern skin of the Breached Wall had been excavated down to a level of approximately two brick courses below the original footing. Fresh concrete foundations had been constructed there. That excavation had revealed the bedrock foundation of the remaining western skin. Once the western skin was demolished, a bedrock foundation for a single skin wall remained. That is to say, the demolition of the western skin wall exposed a footing, made of bedrock, which was one brick course in width along its length. The New Wall was built on that original footing of bedrock. It was built to abut the stairs, the pier, the fireplace, the wall running east-west separating the living room and laundry/toilet and the tiled floor areas of the living room and laundry/toilet areas. The stairs, pier, edge of the fireplace wall and east-west wall formed four reference points, which extended vertically, by reference to which one could check whether the New Wall was being built on the same location as the western skin of the Breached Wall. The eastern edge of the tiles laid on the floors of the living room, and of the laundry/toilet, provided a further check, at floor level, that the New Wall was indeed following the line along which the western skin of the Breached Wall had been constructed. Mr Scott was present throughout the process of demolition of the previous wall and construction of the new wall. He gives evidence that, "The new wall was built on the same footing as the old wall and it was built in exactly the same position of the old wall." I accept that evidence. After the wall was constructed, the wall unit in the living room was reinstated. It also aligned with the rebuilt wall. This provided a further check that the New Wall was indeed built in the same position as the western skin of the Breached Wall.
31 During the course of rebuilding the wall on 26 February 2001 both Mr Marina, and Mr Marina's builder were on site at No. 4. Neither of them expressed any concern to Mr Scott about the position in which the New Wall was being constructed.
32 During the course of building the New Wall, on 26 February 2001, Mr Scott enquired of Mr Marina what sort of new wall he was proposing to build on his side. Mr Marina told Mr Scott "I am not building a new wall now. I don't like to give council too much detail." That was the first time that Mr Scott had heard that Mr Marina would not be building a new wall on the No. 4 side of the boundary. This caused Mr Scott to become concerned about the New Wall needing waterproofing. Ms North's solicitors made numerous attempts to obtain Mr Marina's agreement to the waterproofing of the New Wall, but without success.
33 Construction of the pavilion, on Mr Marina's land, has occurred so that the western wall of the pavilion is very close to the northern part of the New Wall, and runs in a northerly direction beyond the northern end of the New Wall. The southern part of the New Wall forms, on Mr Marina's side, the wall of a courtyard which lies between the main building erected on No. 4, and the pavilion.
Issues in the Proceedings
34 The issues in the proceedings changed substantially during the course of the trial. At the time the trial started, the plaintiff was seeking an order for specific performance of the Agreement, to require the defendant to execute a surveyors plan and a section 88B instrument which would create an easement to permit the New Wall to remain, and an easement for the waterproofing of that wall. These documents also made provision for the granting of an easement for the overhanging cladding - a matter concerning which Ms North had been negotiating with Mr Marina. The plan (which had been annexed to an Amended Summons filed on 5 April 2002) was known as the Linker Plan. The basis on which Ms North sought the granting of an easement for the overhanging cladding was the Encroachment of Buildings Act 1922, or alternatively section 88K of the Conveyancing Act 1919. The plaintiff also sought damages from the defendant, for breach of the Agreement. The defendant, for his part, alleged that the New Wall was not erected in the location required by the Agreement, sought the removal of the New Wall, and damages arising from the New Wall having been constructed in the wrong place. An issue had arisen between the parties, not recognised on the pleadings but recognised by counsel, arising from Woollahra Council having served the plaintiff with a notice requiring the areas of the upper ground floor and top floor of No. 2 which were covered with cladding to be made fireproof. Depending on how that fireproofing was carried out, it might involve an increase, of the order of 0.02m, in the size of the easement which the plaintiff needed with respect to the overhanging cladding.
35 On the second day of the trial both counsel gave the court a document which set out the extent of agreement, and of disagreement, between the parties.
A. THE PLAINTIFF'S CASE
The New Brick Wall Easement
1. The defendant does not press for the demolition of the new brick wall.
2. Subject to paragraphs 3-12 below, the defendant accepts the Court should order both a form of easement in relation to the new brick wall of the type generally proffered by the plaintiff, and in addition cross-easements flowing from the description of the wall as a "party wall" .
3. The defendant accepts the Linker plan insofar as it delineates a boundary between the properties.
4. The defendant has the following reservations concerning certain technical surveying aspects of the Linker plan, namely:-
(i) whether it is correct in showing the new brick wall as having a width of 140mm at its southern end;
(ii) whether it is correct in showing that the brick wall having a width of 100mm at the northern end, and possibly that width near the southern end of the pavilion on No. 4;
(iii) whether it describes the western wall of the pavilion erroneously as a "brick fence" ;
(iv) whether it fails to describe the new brick wall as a "party wall" ( "the Reservations" ).
5. The plaintiff agrees that the wall on the Linker plan should be described as a "party wall" .
6. If the plaintiff accepts the balance of the Reservations, there will be no issue with respect to the Linker plan.
7. Absent agreement as to the Reservations, it will be necessary for the Court to determine whether any of the Reservations have merit.
8. The defendant will grant access to his property to the plaintiff's surveyor to allow him, inter alia, to consider the Reservations.
Waterproofing
9. The defendant accepts that there must be compliance with the Council's order with respect to waterproofing, and that such compliance will require some form of easement, both by way of access to enable the work to be undertaken and maintained, and with respect to encroachment created by the waterproofing.
10. The defendant does not accept that the extent of the waterproofing encroachment of the easement shown in the Linker plan is necessary.
10A. Any compensation payable by the plaintiff to the defendant in respect of such easement.
11. In the absence of agreement, the Court will need to decide this issue.
Fire Resistance to Overhanging Cladding
12. The defendant accepts that the Court should order for an easement of 0.07m with respect to the overhanging cladding, and the fire rating works required by the Council order which involves the application of "Fyrcheck" to either side of the stud wall upon which the overhanging cladding is situated.
13. The parties agree that the sum of $1,050 is appropriate compensation for this easement.
14. The parties are aware that Council's requirements with respect to fire rating of the cladding may change in the near future, and seek liberty to apply in the event that such changes require variation to the agreement underlying this aspect of this document.
Damages
15. The court will need to determine the plaintiff's case in damages, which is limited to loss occasioned by the defendant's breach of the Agreement of 15 February 2001 ( "the Agreement" ).
CROSS-CLAIM
B. THE FOLLOWING MATTERS ARE IN ISSUE ON THE CROSS-CLAIM :-
16. The proper construction of the Agreement.
17. Whether the plaintiff breached the Agreement by causing the New Brick Wall to be constructed in a position not contemplated by the Agreement.
18. If so, whether the defendant has suffered loss, being a loss in value of his property by virtue of the pavilion constructed on his property being smaller in dimension as a consequence of the New Brick Wall not being constructed in a position as contemplated by the Agreement.
19. Any compensation payable by the plaintiff to the defendant in respect of any encroachment by the New Brick Wall.
36 Paragraph 4 of that document had, by the end of the trial, been further clarified such that the parties accepted that the Linker Plan, with some minor amendments, could be incorporated in a court order. In case there is any respect in which this is still a matter of contention, I record that I am not persuaded that there is any substance in the first three Reservations to the Linker Plan.
37 Further, the issue concerning waterproofing of the New Wall developed beyond the situation described in that document. A view, and further evidence, made it apparent that the pavilion on No. 4 is constructed so that, at present, it has only a single skin of brick extending all the way to its roof. However, it is designed to have the wall immediately adjacent to No. 2 of a cavity brick construction. The single skin of brick which extends all to way to its roof will, eventually, be the innermost skin of the cavity brick wall. At present the skin of brick which will, eventually, comprise the outer surface of that cavity brick wall is constructed only to a level a little above human head height. The portion of that outer skin which is constructed is, for most practical purposes, hard up against the wall of No. 2. The outer skin of the pavilion on No. 4 is built to a height a little below the top of the New Wall. If that section of the New Wall which was immediately adjacent to the pavilion was to be waterproofed by placement of flashing between the top of the New Wall and the wall of the pavilion which is at the same height as the top of the New Wall (ie, the inner skin of the pavilion) that flashing would span a greater distance than had been allowed for by the easement for waterproofing in the Linker Plan.
Is the New Wall Built in the Right Place?
38 Mr Marina contends that the New Wall was not constructed in the position which the Agreement of 15 February 2001 required. One basis upon which this contention is put arises from the fact that there is a mistake in Mr Scott's drawing which was annexed to that Agreement. The drawing shows the "existing brick wall" separating the northern portion of the laundry/bathroom in No. 2 from No. 4 as being of a thickness appropriate to a double brick wall. In fact, that wall is only a single brick wall. As Mr Scott was preparing his measured drawing from internal dimensions inside No. 2, and assumed, rather than measured, that that particular wall was a double brick wall, he did not realise this error until well after the New Wall was constructed. Photographs taken from No. 4, before demolition of the Breached Wall, show that the Breached Wall in fact stood slightly to the east of the prolongation of the western face of the northern part of the laundry/toilet wall, whereas Mr Scott's drawing shows the proposed new wall as standing slightly to the west of the prolongation of the northern part of the laundry/toilet wall. Mr Marina contends that the New Wall should have been constructed so that the junction, on his side of the New Wall, between the New Wall and the laundry/toilet wall, had the configuration shown in Mr Scott's plan.
39 Another basis upon which Mr Marina contends that the New Wall has not been built on the site where the Agreement of 15 February 2001 required it to be built, arises from some survey evidence. The boundary between No. 2 and No. 4 has been examined by surveyors on various occasions since 1953, and those surveyors have prepared sketch plans. A common theme of all of the surveys tendered in evidence is a recognition that it is impossible to define any of the original lot boundaries other than by reference to the way in which the lots are occupied, because the original survey markings have disappeared. Extra difficulty in identifying the boundary arose from the fact that the structures on No. 2 and No. 4 were , for much of the length of the boundary between them, built hard up against one another, so it was not possible for the surveyors to have a close inspection of much of the boundary. On 19 December 2000 - that is, after the eastern skin of the Breached Wall had been removed, after the western skin of the Breached Wall had been breached, but before the western skin of the Breached Wall was demolished - Hill & Blume, Surveyors, carried out a further survey. The sketch plan which Hill & Blume then produced was made available to Mr Marina, Ms North, and Mr Scott. It shows the single remaining skin of the Breached Wall as standing wholly within No. 4 at its southern end, but as standing approximately half in No. 2 and half in No. 4 in its northern end. Mr Scott had that sketch available to him at the time he drew the plan which was annexed to the Agreement of 15 February 2001, and a boundary, intended to be based upon that sketch plan, is included in Mr Scott's plan. It appears there as a broken line, labelled with the words "Boundary runs at angle within wall to survey". Unfortunately, it appears that there was another error in transcribing the surveyor's sketch plan onto Mr Scott's plan - Mr Scott's plan proceeds on the basis that substantially the whole of the southern end of the Breached Wall lies on No. 4, but that approximately one half of the thickness of the Breached Wall, considered as a double-skin wall, at the northern end lies within No. 2. Mr Marina contends that the New Wall should have been built so that it had the same relationship to the boundary between the two properties as is shown in Mr Scott's plan.
40 There is a third way in which Mr Marina submits the New Wall is not constructed in the correct location. On 8 February 2001 R W Martin & Associates, Surveyors, issued a report to Mr Marina, which annexed a sketch of the disputed boundary. Alone of all the survey reports which have been produced, this report stated that the Breached Wall was in fact two walls. It asserted that the northern most portion of the Breached Wall, of a length less than one metre long, was not the same age as the rest. The surveyor expressed the view that in his opinion it was built as an addition later to fill a gap in the boundary fencing. Mr Martin shows that short wall as bearing at a slightly different angle to the rest of the Breached Wall. He says that at its western face at the southern end it is on the boundary, and at the northern end 0.04m over onto No. 2. Thus, according to Mr Martin, the Breached Wall considered as a totality was not straight, but rather had a kink in it, near its northern end.
41 Mr Marina did not make that survey report available to anyone else until well after the New Wall dividing No. 2 from No. 4 had been constructed.
42 Insofar as Mr Marina's submissions about the New Wall being built in the wrong place arise from the fact that Mr Scott's plan shows an incorrect thickness of the northern end of the laundry/toilet wall, and shows a boundary line, one has a situation where the Agreement requires the New Wall to be built "strictly in accordance with, and only in the location indicated on, the Drawings", yet the plan which is part of those Drawings contains some mutually inconsistent pointers as to where the New Wall is to be built. The plan shows the location of the New Wall by reference to a variety of different reference points - where it lies in relation to the stone foundation wall at its southern end, where it lies in relation to the stairs, where it lies in relation to the brick pier, where it lies in relation to the fireplace, where it lies in relation to the eastern end of the east-west wall dividing the living room from the laundry/toilet, where it lies in relation to the "existing brick wall" separating the northern portion of the laundry/toilet in No. 2 from No. 4, and where it lies in relation to the boundary indicated on the plan. Even if the boundary which is shown on the plan was the correct boundary between No. 2 and No. 4, it would be physically impossible for a wall to be constructed which aligned, in the way shown on the plan, with every one of those reference points. It is physically impossible precisely because Mr Scott made the two mistakes which he made. Deciding whether the New Wall has been built in the place required by the Agreement requires one to construe the Agreement, to determine what it really requires concerning where the New Wall should be built.
43 In construing a document, one seeks to ascertain the intention of the parties arising from the document as a whole, and reading the document with such background information as was known by all parties to it. In McEntire v Crossley Bros (1895) AC 457, at 462-3 Lord Herschell LC said, in words quoted with approval by Isaacs J in Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 at 151.
"…the agreement must be regarded as a whole - its substance must be looked at. The parties cannot, by the insertion of any mere words, defeat the effect of the transaction as appearing from the whole of the agreement into which they have entered. If the words in one part of it point in one direction, and the words in another part in another direction, you must look at the agreement as a whole and see what its substantial effect is. But there is no such thing, as seems to have been argued here, as looking at the substance, apart from looking at the language which the parties have used. It is only by a study of the whole of the language that the substance can be ascertained."
44 In Gwyn v Neath Canal Co (1868) LR 3 Ex 209 at 215 Kelly CB said:
"… when a court of law can clearly collect from the language within the four corners of the deed or instrument in writing the real intentions of the parties, they are bound to give effect to it by supplying anything necessary to be inferred from the terms used, and by rejecting as superfluous whatever is repugnant to the intention so discerned."
45 The court tries, if it can, to give a meaning to all parts of a contract, and will only reject one clause as inconsistent if an attempt to read the contract in its entirety, and harmonise the provisions, fails. In Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd (1989) 2 HKLR 639 Lord Goff of Chievelly, delivering the advice of the Privy Council, said:
"Their Lordships wish to stress that to reject one clause in a contract as inconsistent with another involves a rewriting of the contract which can only be justified in circumstances where the two clauses are in truth inconsistent. In point of fact, this is likely to occur only where there has been some defect of draftsmanship. The usual case is where a standard form is taken and then adapted for a special need, as is frequently done in, for example, the case of standard forms of charterparty adapted by brokers for particular contracts. From time to time it is discovered that the typed additions cannot live with the printed form, in which event the typed additions will be held to prevail as more likely to represent the intentions of the parties. But where the document has been drafted as a coherent whole, repugnancy is extremely unlikely to occur. The contract has, after all, to be read as a whole; and the overwhelming probability is that, on examination, an apparent inconsistency will be resolved by the ordinary processes of construction."
46 There is a rule of construction whereby, as a last resort, inconsistencies between two clauses can be resolved by adopting the earlier of them. That rule (criticised and qualified as it has been - Durbin v Perpetual Trustee Company Limited (1995) NSW ConvR ¶ 55-725 at 55,604 per Kirby P) cannot apply to resolve inconsistencies which appear within the one drawing, as is the case with Mr Scott's plan.
47 It is apparent from the recitals to the Agreement that compliance with the Council order is a fundamental objective of the parties. The same conclusion arises from that portion of the "Scope" document annexed to the Agreement, which provides that completion has not occurred until the requirements of the Council's order have been complied with. Mr Scott's plan, annexed to the Agreement, describes the New Wall as "110mm wall reinstated to council's order". The Schedule of Work on Mr Scott's plan included the item "rebuild single skin wall to council's detail". The terms of the order required the parties to "demolish and reconstruct the … brick party wall in its same location on, near or over the boundary …" The order could be complied with only if the wall was reconstructed on the same site as the Breached Wall had occupied. I have already found it occupied that site.
48 The first factor which Mr Marina relies upon to assert that the New Wall has not been constructed in the location it was supposed to be constructed in, is that Mr Scott's plan, mistakenly, showed that the northern part of the existing brick wall of the laundry/toilet on No. 2 protruded to the east beyond the prolongation of the New Wall. In my view, this mistake in Mr Scott's plan does not affect the proper construction of the Agreement where the New Wall is to be constructed. Rather, the substance of the whole agreement requires construction of the New Wall in the same location as the Breached Wall, for only then can the Council's order be complied with. The alignment of the New Wall with the stone foundation wall, the timber stair, the existing brick pier, the end of the diagonal wall in which the fireplace is placed, and the eastern end of the wall separating the area behind the fireplace from the laundry/bathroom are all attributes which the New Wall must have, if it is to be in the same location as the Breached Wall. When building the New Wall so that it has those attributes necessarily means that the New Wall adjoins the laundry/toilet wall in a way which is different to the way shown on Mr Scott's plan, it is not possible to reconcile all the attributes which the plan shows the New Wall as having. To achieve the substantial effect of the Agreement as a whole, that aspect of the plan which shows the shape of the junction between the New Wall and the laundry/toilet wall, should be rejected as inessential. Thus the fact that the New Wall has been built with its junction differently shaped to the junction shown on Mr Scott's plan does not mean the Agreement has been breached. It would have been possible for a plan to define adequately the indicia for the construction of the New Wall without indicating a thickness of the northern part of the existing brick wall of the laundry/toilet at all. That mistake in the plan is one of those inconsistencies which a process of construction permits one to discard, so that the main objective of the Agreement can be achieved.
49 The second basis on which Mr Marina submits that the wall is not constructed in accordance with Mr Scott's plan, and hence is not the wall which the Agreement required to be built, is that Mr Scott's plan shows a boundary which would result in the New Wall, at its northern end, being constructed entirely within No. 2. In my view, the location of the boundary on the plan does not assist in ascertaining the intention of the parties, objectively expressed, concerning where this wall was to be constructed. One piece of information which both parties shared was that several surveyors had expressed the view that the boundary could not be accurately located because of the absence of original survey marks. It was precisely because of this uncertainty about the precise location of the boundary that the Council's order was expressed in the terms it was. When the Council said the wall was to be constructed "in its same location on, near or over the boundary" the Council was recognising the uncertainty about the precise location of the boundary, but saying, wherever the boundary might be, the wall was to be constructed in the same location as the Breached Wall.
50 Further, recital D records that one aspect of the dispute between Ms North and Mr Marina was the ownership of the Breached Wall. Whether A or B owns a wall depends upon whether, or the extent to which, the wall is constructed inside the boundaries of land owned by A and B respectively. Before execution of the Agreement, Mr Marina's solicitors had been asserting, and Ms North's solicitors had been denying, that the Breached Wall was constructed entirely on Mr Marina's land. When the parties have explicitly recognised, in the Agreement itself, that there is a dispute about where the Breached Wall lay in relation to the boundary, and when it was one of their objectives to comply with the Council order requiring a wall to be constructed in the same location as the Breached Wall, the intention of the parties, drawn from the Agreement, is not that the location of the New Wall is to be defined by reference to any boundary line. The boundary line which is shown on Mr Scott's plan could have been omitted, and the plan would have defined the location of the New Wall just as well. Thus, failure to build the New Wall so that it had the same relationship to the boundary as is shown in Mr Scott's plan does not mean the Agreement has been breached.
51 A third basis upon which Mr Marina asserts that the New Wall is not constructed in the correct location arises from the sketch attached to Mr Martin's survey report. Mr Marina says that, if it were to be held, contrary to his submission, that the Council order was an important factor in deciding the construction of the Agreement concerning where the New Wall was to be built, the New Wall has in fact not been built in exactly the same location as the Breached Wall. This is because Mr Martin's survey shows that the Breached Wall had a kink in it, and the New Wall does not.
52 Mr Martin was not called as a witness - his plan was simply tendered. However no other surveyor had suggested that the Breached Wall was not a straight one. After it had had one skin removed and the remaining skin had been breached, the Breached Wall was not at all stable. The process of removing the eastern skin of the Breached Wall had required Mr Marina's builder to break every one of the header bricks which connected the eastern and western skins of that wall. By 21 December 2000 a gap of 15mm had developed between the western face of the Breached Wall, at the top of that wall, and the brick column. That gap tapered to nothing towards the ground level. Thus, the wall had moved laterally at its top. Mr Scott observed, on that day, that the wall moved if it was pushed. At some stage (the evidence does not establish precisely when) bricks which ran in an east-west direction into No. 4 from the end of the Breached Wall were removed - it is not clear whether this happened before or after Mr Martin attended. Mr Martin's plan was in any event only a sketch plan. All these circumstances would lead one to approach with some caution the results reported in this survey.
53 I regard Mr Scott's observations about where the New Wall was built by comparison by where the Breached Wall stood, and the multiple physical checks which are available to show that the New Wall was indeed built in the location of the Breached Wall (set out in paragraph 30 above) as a more reliable indicator than Mr Martin's survey of whether the New Wall was built in the same location as the Breached Wall.
54 Further, and equally significantly, it is clear that the wall which Mr Scott's plan shows as the wall to be built is straight. That is a sufficient reason to reject any submission that, by not building a wall with a kink in it, the plaintiff was in breach of her obligations under the Agreement.
55 If I were to construe the Agreement by reference only to the principles of construction which I have been applying so far, I would arrive at the conclusion that the New Wall has been built in the location required by the Agreement.
Construe the Agreement Contra Proferentem?
56 However, counsel for Mr Marina submits that an additional principle of construction should be taken into account, and that the result of taking it into account is that Mr Marina's contention, that the New Wall has not been built in the place required by the Agreement, should succeed. He submits that the drawing is ambiguous about the location of the wall, by reason of the factors which I have held to be mistakes of Mr Scott, and that, through the operation of "the contra proferentem rule" that ambiguity ought be construed against Ms North, whose agent Mr Scott was.
57 Sir Edward Coke's Commentary on Littleton on Tenures (Vol 1, 15th edition, 1794) at 36a concludes a general discussion of the law of deeds by saying "Of deeds and their distinctions you shall reade excellent matter in antiquitie", and then giving a list of Latin maxims. One of those maxims is "verba cartarum fortius accipiuntur contra proferentem".
58 This maxim translates as "the words of documents are to be taken strongly against the one who puts forward". A crudely literal translation like this suggests that the maxim has a potential for ambiguity. Is the relevant "one who puts forward" the one who puts forward the whole document, or the one who puts forward the particular words which are being talked about? Is it the person who actually prepared the document or clause in question, or is it someone who should be taken, from the nature of the document, to have put the document or clause forward? And if the latter, by reference to what does the court decide who ought to have been taken to have put forward the particular document or words?
59 These ambiguities have in fact been reflected in the history of the use of the maxim, from the 16th century onwards, and continue to exist.
60 One stream of authority, applied particularly in connection with insurance contracts, proceeds on the basis that one party has the responsibility for putting forward the entire document, and hence the document will be construed against that party, even if the other party has had some involvement in its drafting: Halford v Price (1960) 105 CLR 23 at 30 per Dixon CJ (with whom Menzies J agreed) 34 (per Fullagar J); MGICA Ltd v United City Merchants (Australia) Ltd (1986) 4 ANZ Insurance Cases ¶ 68-729 at 74,350 per Kirby P; Johnson v American Home Assurance Company (1998) 192 CLR 266 at 274 per Kirby J; McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 at 602 per Kirby J; Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121 at 126 per Hope JA; Anderson v Fitzgerald (1853) 4 HL Cas 484 at 507; 10 ER 551 at 560 per Lord St Leonards.
61 Other cases have been prepared to look at who it was who introduced particular words into the contract: Lobb Phoenix Assurance Co Ltd [1988] 1 NZLR 285 at 288, 289, 291 (that words are part of a printed form, rather than typed additions, shows they are the insurer's words); A/S Ocean v Black Sea & Baltic General Insurance Co Ltd (1935) 51 L1 L Rep 305 at 307, 310 (assured is the proferens of clauses in a policy set out on a broker's slip); Bartlett & Partners Ltd v Meller [1961] 1 Lloyd's Rep 487 at 494 (follows A/S Ocean).
62 Sometimes the enquiry into who put forward the words is not treated as an exercise in fact finding, about what actually happened in the preparation of the document, concerning which the wording of the contract and its physical form can be the basis for inferences. Rather, the enquiry into who put forward the words is treated as an exercise in the analysis of the document, to decide who ought be taken to be saying certain words. In Browning v Beston (1555-56) 1 Plowden 131 at 134; 75 ER 202 at 206 this approach was articulated by counsel, in a passage which has been referred to in succeeding centuries.
"But if an indenture contains matter of substance, the law will make such reference thereof as is most fit and reasonable, and will say that the words are spoken by him whom could most properly speak them; and therefore where the plaintiff here has covenanted and granted to render and pay the said sum for the land, the words are in fact the words of the lessee, but in construction of law they shall be taken the words of reservation of the lessors, inasmuch as they have the sense and effect of a reservation."
63 It is this approach to the maxim which results in the principle that a deed is construed against the grantor: In Re Stroud (1849) 8 CB 502 at 529, 137 ER 604 at 615 per Wilde CJ; Neill v Duke of Devonshire (1882) 8 AC 135 at 149 per Lord Selbourne LC; Swann v Fonnereau (1796) 3 Ves Jun 41 at 48, 30 ER 883 at 887 per Sir Richard Arden MR; Johnson v Miro Hotels Pty Ltd [1984] ANZ ConvR 397 at 400 per Mitchell ACJ. The rationale for this view is explained in Cruise's Digest of the Laws of Real Property (4th edition, 1835) title 32, chapter 20, section 13:
"a deed is always construed most strongly against the grantor, verba chartarum fortius accipiuntur contra proferentem, et quaelibet concessio fortissime contra donatorem interpretanda est . For the principle of self-interest will make men sufficiently careful not to prejudice themselves, by using words of too extensive a meaning. And all manner of deceit is hereby avoided in deeds; for people would always affect ambiguous expressions, if they were afterwards at liberty to put their own construction on them."
64 This approach to the maxim was adopted by Hoffmann J in Amax International Ltd v Custodian Holdings Limited [1986] 2 EGLR 111 at 112, when he said, concerning construction of a rent clause in a lease "… the fact that the tenant is the covenantor and therefore technically the proferens …".
65 This version of the maxim, also appears in the decision of the House of Lords in Birrell v Dryer (1884) 9 AC 345 their Lordships considered a marine insurance policy which included the words "warranted no St Lawrence between the first of October and the first of April". The question was whether that warranty related only to the St Lawrence River, or included also the Gulf of St Lawrence. Lord Blackburn said, at 351-352
"I do not think the description of the district excluded can be considered as the words of one party more than the other. The shipowner knowing where he is likely to employ his ship, and that he does not intend to use her in some district, generally puts on the slip a description of the district in order to induce the underwriters to agree to a lower premium.
I am by no means prepared to say that in some cases where the description of the excepted district is special, it may not be right to say that these are the words of the assured. But where the description is, like this, general, I think that the assured has a right to suppose that the underwriters understand the description as they ought to understand it. It is alike for the interest of assured and underwriters that the description should be definite…"