North v Marina

CITATION : North v Marina [2003] NSWSC 64 HEARING DATE(S) : 4/2/03-7/2/03 JUDGMENT DATE : 3 March 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Parties to bring in short minutes

CATCHWORDS : CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - construction and interpretation of contract - general principles - application of general principles of construction to document containing a plan - contra proferentem rule - REAL PROPERTY - easements - grant under section 88K Conveyancing Act 1919 - payment of compensation Conveyancing Act 1919 LEGISLATION CITED : Encroachment of Buildings Act 1922 Real Property Act 1900 Amax International Ltd v Custodian Holdings Limited [1986] 2 EGLR 111 Anderson v Fitzgerald (1853) 4 HL Cas 484; 10 ER 551 A/S Ocean v Black Sea & Baltic General Insurance Co Ltd (1935) 51 L1 L Rep 305 Australian Aviation Underwriting Pty Ltd v Henry (1988) 12 NSWLR 121 Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140 Bartlett & Partners Ltd v Meller [1961] 1 Lloyd's Rep 487 Birrell v Dryer (1884) 9 AC 345 Brown v Petranker (1991) 22 NSWLR 717 Browning v Beston (1555-56) 1 Plowden 131; 75 ER 202 Burton v English (1883) 12 QBD 218 C E Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 Canada Steamship Lines Limited v The King [1952] AC 192 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Durbin v Perpetual Trustee Company Limited (1995) NSW ConvR 55-725 Canada Steamship Lines Limited v The King [1952] AC 192 G L Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 Gwyn v Neath Canal Co (1868) LR 3 Ex 209 Halford v Price (1960) 105 CLR 23 Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343 Howe v Teefy (1927) 27 SR (NSW) 301 CASES CITED : Independent Timber Importers v Mercantile Mutual Insurance Ltd [2002] NSWCA 304; (2002) 12 ANZ Ins Cas 61-543 J Fenwick & Co Pty Ltd v Federal Steam Navigation Co Ltd (1943) 44 SR (NSW) 1 Johnson v American Home Assurance Company (1998) 192 CLR 266 Johnson v Miro Hotels Pty Ltd [1984] ANZ ConvR 397 Lobb Phoenix Assurance Co Ltd [1988] 1 NZLR 285 MGICA Ltd v United City Merchants (Australia) Ltd (1986) 4 ANZ Insurance Cases 68-729 MLC Limited v O'Neill [2001] NSWCA 161 McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 McEntire v Crossley Bros (1895) AC 457 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Neill v Duke of Devonshire (1882) 8 AC 135 Parkinson v Barclays Bank Ltd [1951] 1 KB 368 Rouleston Clarke Pty Limited (in liq) v FAI General Insurance Co Limited (2000) 11 ANZ InsCas 61-473 St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) [1975] 1 All ER 772 Stroud; In Re (1849) 8 CB 502 Swann v Fonnereau (1796) 3 Ves Jun 41; 30 ER 883 Thomas National Transport (Melbourne) Pty Ltd v May and Baker (Australia) Pty Ltd (1966) 115 CLR 353 Travinto Nominees Pty Ltd v Vlattas [1972] 1 NSWLR 24 Webb v Plummer (1819) 2 B & Ald 746 Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533 Wilson v Harvey Trinder (NSW) Pty Ltd [1973] 2 NSWLR 870 Yien Yieh Commercial Bank Ltd v Kwai Chung Cold Storage Co Ltd (1989) 2 HKLR 639 PARTIES : Marie-Louise North - Plaintiff Doru Marina - Defendant FILE NUMBER(S) : SC 6024/01 COUNSEL : R J Weber SC; P W Gray - Plaintiff N Perram - Defendant SOLICITORS : Stephen Blanks & Associates - Plaintiff Landerer & Company - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

6024/01 MARIE-LOUISE NORTH v DORU MARINA JUDGMENT HIS HONOUR: Background to the Dispute 1 This is a dispute between neighbours concerning structures which lie on, or near, the boundary between their properties. The plaintiff, Ms North, is the registered proprietor of land known as 2 Hargrave Street Paddington. Title to that land is under the Real Property Act 1900; its title reference is folio 45/4/180. The defendant, Mr Marina, is the registered proprietor of the adjoining property known as 4 Hargrave Street Paddington. Its title is also under the Real Property Act 1900; the title reference is folio 46/4/180. 2 The two lots lie on the northern side of Hargrave Street. A lane, Hargrave Lane, runs parallel to Hargrave Street, and the properties lie on the southern side of Hargrave Lane. Each of the lots has a frontage of a little over 6 metres to Hargrave Street, and a depth of approximately 32 metres. (I suspect the size of the frontage arises from the fact that 20 feet, in imperial measurements, is equal to 6.096 metres.) The orientation of the blocks is such that their longer sides run at approximately 30 to the east of north. However, for ease of exposition, I will henceforth speak as though the longer side of the two blocks ran in a north-south direction. 3 The two blocks were created by the plan of subdivision of the Underwood Estate at Paddington, made in 1875. The two lots were not developed as a terrace, but rather by being built at different times. 4 Now, No. 2 has erected at the Hargrave Street frontage a dwelling of three storeys. From Hargrave Street, one enters that dwelling at its middle level, sometimes referred to as the upper ground floor. A set of timber stairs leads down to the lower ground floor. On the lower ground floor are located, as one moves back from Hargrave Street to Hargrave Lane, the kitchen, the dining room, and the living room. The stairs which take one down to the lower level are stairs which involve the walker travelling in a squared "U" shape in getting from the upper ground floor to the lower ground floor. The base of that squared "U" lies hard against the eastern wall of the living room. 5 The walls of the kitchen and dining room are rough hewn stone, and part of the original structure which was erected on No. 2. The living room is part of a later addition, constructed in 1977, with its eastern wall consisting of rendered brick. The roof of the living room is supported by metal beams, which run in an east-west direction. Protruding into the living room from its eastern wall, immediately to the north of the space occupied by the stairs, is a brick pier, which supports the end of one of these beams. The floor of the living room is tiled with white tiles. 6 Built diagonally across the northeastern corner of the living room is a stone wall, in which a fireplace is constructed. 7 In the northerly wall of the living room glass doors occupy virtually all of the western part, and lead to a patio. At the eastern end, a brick wall runs in an east-west direction. A small laundry/toilet lies on the northern side of that part of the north wall of the living room which lies behind the diagonal wall in which the fireplace is constructed. The floor of that laundry/toilet is tiled. The features I have described are illustrated in a measured drawing made in January 2001 by Mr Peter Scott, Architect, which is annexed to these reasons for judgment. 8 The top storey of No. 2 is also a later addition. Those parts of the upper ground storey and top storey which are not abutting the wall of the building built on No. 4, are clad, at the exterior, with a material called Hardiplank which is moulded to look like weatherboards. It is common ground that this cladding encroaches onto the land of No. 4 by several centimetres. The precise extent of the encroachment depends upon the precise location of the boundary between No. 2 and No. 4, a matter concerning which various different opinions have been expressed. 9 No. 4 has constructed on it a three storey dwelling built in the late 19th century. That dwelling also is one which is entered on its middle level from Hargrave Street. Prior to December 2001 at the rear of that dwelling there ran, along the western side of No. 4, two single storey structures. The southern most of these structures, called a service wing, had its western wall made of brick. 10 In November 2000 Mr Marina commenced some major renovation and reconstruction works on No. 4. The plan for those works included not only substantial renovations to the main dwelling on No. 4, but also the demolition of the single storey structures which ran along the western side of No. 4 and construction of a structure, called a pavilion, which was to be freestanding from the main house, and to occupy, for practical purposes, the entire width of the block. 11 On 29 November 2000 demolition of the single storey structures at No. 4 was underway. The builder carrying out the demolition had removed one skin of bricks from the double brick wall which formed the western side of the service wing building. The builder then attempted to remove some of the bricks from the second skin of bricks from that wall. He found that, when he did so, he revealed part of the interior of the lower ground level of No. 2. 12 The interior of No. 2 was exposed in two areas - there was a small hole in the laundry, where a thin layer of rendering over the bricks remained after the bricks were removed, but that thin layer of rendering had a hole broken through it in one place - and there was a larger hole beside the fireplace in the living room. 13 Later examination has shown that the section of wall dividing No. 2 and No. 4 was constructed by building two single skins of bricks abutting each other and tied to each other by what was known as "Flemish bonding". This bonding method involves laying three rows of bricks ("stretchers") which are oriented in the direction of the wall, and then a single row of bricks ("headers") which are laid at right angles to the stretchers, and span the two skins of bricks making up the wall. The bricks in this particular wall were soft non-machine made bricks, laid in lime mortar. In or about 1905, building methods changed after the invention of the cavity brick method of construction of walls, and the invention of the brick tie. By 1910, the cavity brick method of construction was almost universally adopted by builders in Sydney including Paddington. Thus, the wall in question is likely to have been erected prior to 1910. Other evidence suggests that the wall in question was erected many years prior to 1910, but the precise length of time does not matter. When the living room extension to No. 2 was constructed in 1977, the western most face of that wall had been used as the eastern wall of the new living room of No. 2. 14 In December 2000 No. 2 was tenanted, and Ms North was living overseas. By 7 December 2000 she had travelled to Australia, and was informed by the letting agent for the property that the living room wall of No. 2 had been pulled down during the construction work next door. 15 On 8 December 2000 Ms North inspected No. 2, in company with Luke Oldfield, an officer of the Woollahra Council. In the course of that inspection Mr Oldfield told Mr Marina he had to stop all demolition on the wall, and hoard it up. 16 On 21 December 2000 there was a meeting at the Council's chambers, with the owners of No. 2 and No. 4 present, with their solicitors. Possible solutions to the problem of the damaged wall were discussed. A Council file memorandum records: "It was decided that Council was not satisfied with the survey information, as it appeared to differ from surveyor to surveyor, and to know a clear boundary would require a boundary redefinition from the Land Titles Office. The meeting concluded and Council requested that both parties submit cross sections of possible solutions incorporating the agreed boundary. Council advised both parties that a mutual agreement had to be found in order to avoid a legal battle." 17 On 21 December 2000 a further meeting took place at No. 2 and No. 4. It was attended by Ms North, her husband, the defendant, Mr Oldfield and Mr Daintry from Woollahra Council, solicitors for Ms North and Mr Marina, and Mr Peter Scott. Mr Scott is an architect, who had been engaged by Ms North. At the meeting on 21 December 2000 Mr Daintry expressed the opinion that the wall would need to be demolished and rebuilt, because it could not be safely repaired. Mr Scott expressed agreement with that view. In the course of that meeting Mr Daintry enquired of Mr Scott whether it would be possible to rebuild the wall further onto No. 2. Mr Scott said that anything was possible, but it would be very expensive because a number of items inside No. 2, some of them structural, would have to be altered, such as the staircase, the stone fireplace, the tiled floor and the brick pier. He also said that the rebuilding of the wall further onto No. 2 would also make the space available for the staircase too small for proper access. Mr Daintry expressed agreement with that view, and put forward a number of options for rebuilding the wall. Mr Marina did not agree at that time with any of those options. 18 After the meetings of 21 December 2000 Mr Daintry produced a plan of his preferred option for rebuilding the wall. That plan came to be made available to Mr Scott, and to the solicitors for Ms North and Mr Marina. Without going into all its details, it proposed constructing a single-skin brick wall on, approximately, the location of the wall which had been breached (a location which, as Mr Daintry understood it, and as the plan he produced showed, would have involved the boundary line between No. 2 and No. 4 passing through that single-brick wall), easements for support being granted in relation to portions of that brick wall which lay on either side of the boundary line, and a further double brick wall being constructed on Mr Marina's land roughly (but not quite) parallel to that new single-skin brick wall. 19 There was correspondence between the solicitors for Ms North and for Mr Marina, but no resolution was arrived at concerning repair of the wall. On 2 January 2001 Woollahra Council issued an emergency order to the plaintiff. The order was served on the plaintiff under cover of a letter saying: "I refer to the meeting between your representatives and Council Officers on the 2 January 2001. A proposal was drawn up by Council's Manager of Building and Compliance, dated 2 January 2001, detailing a possible solution that would permit the reconstruction of the party wall. Council puts to both parties that this is the most sensible solution since it meets the objectives of both parties and meets the requirements of the Building Code of Australia. This proposes that a 110mm party wall would be reconstructed spanning the boundary and Mr Marina would then construct a 230mm wall wholly within No.4 Hargrave Street's boundary. Council also advised that an easement for support must to [sic] be created for the 110mm party wall to ensure that support is maintained to the wall and to ensure that no future dispute arises in relation to the status of the party wall. A mutual agreement is required between both neighbouring parties regarding this matter. Council expects that both parties will comply fully with the attached orders within 14 days to ensure that a structurally sound, weatherproof and properly fire rated party wall is erected as required. Council has no jurisdiction to determine costs in this matter. …" 20 The text of the order enclosed with that letter stated (after referring to the legal authority under which it was made): "The terms of the order are: 1. To demolish and reconstruct the eastern brick party wall in it's same location on, near or over the boundary between No.2 and No.4 Hargrave Street, Paddington. The new wall is to comply with Parts 3.7.1 and 3.3.4 of the Building Code of Australia (Housing Provisions) regarding fire separation and weather proofing of masonry (respectively). (Please note an easement for support is to be created to the brick party wall.) Reasons(s) for the Order 1. The wall is so dilapidated as to be prejudicial to occupants of the building or to persons or property in the neighbourhood; 2. The wall is constructed of solid brickwork and is not weatherproof or waterproof to the satisfaction of Council. 3. The wall does not comply with Part 3.7.2 of the Building Code of Australia (Housing Provisions) regarding fire separation of the building. Period for Compliance with Order The period specified by Council as the period within which the order is to be complied with is 14 Days from the date of the Order. …" 21 On 3 January 2001 Woollahra Council also issued an order to Mr Marina. It was in the same terms as the order to Ms North, save only that:

(a) the reference to "eastern brick party wall" was replaced by a reference to "western brick party wall"; and

(b) an additional reason was given for the issue of the order, namely: "4. the wall was demolished without the prior development consent of Council where prior consent is required."

The Council was correct in giving this additional reason. 22 On or about 8 January 2001 Ms North instructed Mr Scott to prepare a Scope and Plan for rebuilding the wall in a manner which would comply with the Council's order. I infer it went through more than one version. The final version of it consisted of the plan which is annexed to these reasons for judgment, and a further single page of typing, headed "SCOPE". That document included the following: "EXTENT OF WORK The work to be performed under this specification comprises: the demolition of the existing remnant section of the brick party wall as identified in the council's emergency order dated 2nd January. The reconstruction of a new single skin 110mm brick wall spanning the boundary and built to the original height of the wall sufficient to cap and flash over the wall from the existing skillion roof. SITE INSPECTIONS DURING CONSTRUCTION Give sufficient notice so that the following may be inspected by the council building inspector, a nominated structural engineer and the architect acting for No.2 Hargrave St.: - wall construction from the existing footings FOUNDATION MATERIAL Existing footing assumed to be sufficient for the reconstruction of the wall, if not then refer to the nominated Structural Engineer's details. … BRICKWORK … Build in as necessary all flashings, D.P.C.'s reinforcements, arch bars, lintels, frames, straps, bolts, lugs, ties, metal work, sills, joists and the like. … COMPLETION The following requirements are given as an indication of the degree of completeness which will be expected at Completion. - The external wall is complete and satisfactorily tied to the existing brick pier and stone walls adjoining the boundary. - The requirements of the emergency order of the local council have been complied with. - Wall surface to the inside of No. 2 Hargrave St has been left suitably prepared for application of render. The adjoining floor area of white tiles has been left clean and undamaged."

(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…"

Lord Watson, at 354 said that certain of the judges below "held that "no St Lawrence" must be applied to the river only, on the ground that the expression is ambiguous, and that the ambiguity must be solved adversely to the [underwriters], because "the underwriters are the proferentes with regard to a policy of insurance." That the underwriters may be rightly held to be the proferentes with regard to many conditions in a policy I do not doubt; whether they ought to be so held depends, in each case, upon the character and substance of the condition. In the present case there are many considerations which lead to the inference that the clause in question is not one constructed and inserted by the [underwriters] alone, and for their own protection merely. It was, in point of fact, inserted in the contract by the agent of the [insured]; and it is in form a warranty by them that the vessel will not be navigated in certain waters, a matter which is entirely within their power to regulate. These considerations point rather to the [insured] themselves being the proferentes; but I think the substance of the warranty must be looked to; and that, in substance, its authorship is attributable to both parties alike. The main object of the clause is to define the limits within which the vessel is to be kept whilst she is navigated under the policy; and that appears to be as much the concern of the shipowner as of the underwriters. To define the limits within which the vessel is to be navigated, for the purposes of a time policy, is, in principle, precisely the same thing as to describe the voyage for which vessel is insured under ordinary policy. In both cases it is a definition of the subject-matter of the insurance, a term of the contract, the settlement of which must, in my opinion, be regarded, in a case like the present, as the deliberate act of both parties." 66 Another approach which appears in the case law is to say that a provision in a contract is to be interpreted against the person for whose benefit it is inserted: Burton v English (1883) 12 QBD 218 at 220 per Brett MR, 222 and 224 per Bowen LJ (exclusion from liability in charter party); Thomas National Transport (Melbourne) Pty Ltd v May and Baker (Australia) Pty Ltd (1966) 115 CLR 353 at 376 per Windeyer J. Other examples are given by Sir Frederick Jordan in J Fenwick & Co Pty Ltd v Federal Steam Navigation Co Ltd (1943) 44 SR (NSW) 1, at 5-6: "Thus, in relation to clauses providing for an exception from some liability assumed by one of the parties, it has been said that "the rule of construction as to exceptions is, that they are to be taken most strongly against the party for whose benefit they are introduced. The words in which they are expressed are considered as his words, and, if he do not use words clearly to express his meaning, he is the person who ought to be the sufferer": Blackett v Royal Exchange Assurance Coy (1832) 2 C&J 244 at 251. This rule has been applied against an insurer in the construction of an exception from the insurer's promise to indemnify, ibid ; against a shipping company in construing an exception from a promise to carry safely: Taylor v Liverpool & Great Western Steam Company (1874) LR 9 QB 546 at 549-550; Burton v English (1883) 12 QBD 218 at 220; against a lessor in construing an exception from the property leased: Bullen v Denning (1826) 5 B&C 842 at 847, 850; and against a conveyor in construing an exception from the property conveyed: Earl of Cardigan v Armitage (1823) 2 B&C 197 at 206-7; Savill Bros Ltd v Bethell (1902) 2 Ch 523 at 537-8. In all these cases except the last, the person in whose favour the exception is introduced is also the person who prepares the document; but in the case of a conveyance it is against the conveyor that an ambiguous exception is read, notwithstanding that it is the purchaser who prepares the conveyance.

In Philippson v Imperial Airways Limited [1939] AC 332 at 353, 365-6, the cases of Elderslie Steamship Company v Borthwick [1905] AC 93 and Nelson Line (Liverpool) Limited v James Nelson & Sons Ltd [1908] AC 16 are treated as attempts by shipping companies to limit their liability by an exception which was inoperative because ambiguously expressed." 67 Thus, one line of cases says a deed is strongly construed against the grantor because someone who is conveying property ought be careful to ensure that he or she does not give too much away. Another line of cases says a contractual provision is construed against the party for whose benefit it is intended to operate because a person who receives benefits under a contract ought be careful that he or she clearly states the benefits which are to be received, so that he or she does not receive too little. When a conveyance of property can readily be seen as a benefit, it is hard to reconcile these two views. 68 A further theme which appears in the case law, is that the words of a covenant are to be taken, "most strongly against the party who stipulates" (Webb v Plummer (1819) 2 B & Ald 746 at 751, per Holroyd J). At least sometimes, this notion of "the party who stipulates" is taken in the sense which found its way into the Civil Code of Lower Canada, considered by the Privy Council in Canada Steamship Lines Limited v The King [1952] AC 192; that Code provided "in cases of doubt, the contract is interpreted against him who has stipulated and in favour of him who has contracted the obligation" [1952] AC 192 at 208. This appears to be adopting a notion of the Roman law. Broom's Legal Maxims, 10th edition 1939 says at 406: "In the Roman Law, the rule under consideration for the construction of contracts may be said, in substance, to have existed, although its meaning differed considerably from that which attaches to it in our own: the rule there was, fere secundum promissorem interpretamur , where promissor, in fact signified the person who contract the obligation, that is, who replied to the stipulatio proposed by the other contracting party. In case of doubt, then, the clause in the contract thus offered and accepted, was interpreted against the stipulator , and in favour of the promissor ; In stipulationibus cum quaeritur quid actum sit verba contra stipulatorem interpretanda sunt ; and the reason for this mode of construction is, quia stipulatori liberum fuit verba late concipere : the person stipulating should take care fully to express what he proposes shall be done for his own benefit." 69 When there are these different strands of principle recognised in the caselaw concerning the application of the maxim, those strands could themselves come into conflict. A common example is the one given by Sir Frederick Jordan in Fenwick, that a conveyance of land is commonly prepared by the transferee, yet is a grant made by the transferor. 70 Lewison, The Interpretation of Contracts, 2nd edition, page 172 argues that one of the strands of interpretation of the maxim is wrong. He says: "… identification of the proferens should not be confused with identification of the draftsman. In Levison v Farin [1978] 2 All ER 1149 at 1156 it was common ground that as the clause in question "emerged as a result of joint efforts" the maxim was of no relevance. A similar approach was taken by Hirst J in Kleinwort Benson Ltd v Malaysian Mining Corpn Berhad [1988] 1 WLR 799 where he held that the principle would not apply to "a joint drafting effort". It is submitted that this approach is unsound. The contra proferentem principle is a principle of construction. Evidence of negotiations is inadmissible on questions of construction. But an investigation into who drafted what must always require an examination of the negotiations. The true principle is that the proferens is the person for whose benefit the clause was inserted rather than the person who actually did the drafting." 71 It does not seem to me that the line of authority which seeks to apply the maxim by identifying the draftsperson, can be disposed of so simply. There are many cases, of high authority, which seek to apply the maxim by identifying the draftsperson - see paragraphs 60 and 61 above. As well, the reason of principle which Mr Lewison gives for rejecting such cases is not one which can be used, at least in the form in which Mr Lewison expresses it, in Australia. In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, at 352 Mason J said: "The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations, they are not receivable." 72 In accordance with this statement, the law in Australia is that evidence of negotiations is, sometimes and for particular limited purposes, admissible on questions of construction. Identifying the draftsperson of a contract (or clause, as the case may be) could, arguably, be seen as proving an "objective background fact … known to both parties". Identifying the draftsperson does not identify any of the actual intentions or expectations of the parties to the contract, so the vice which Mason J identified in using evidence of negotiations to construe a contract is not committed. Some way of dealing with the different strands of authority concerning the application of the maxim needs to be found, different to (or at least more complex than) that which Mr Lewison proposes. 73 The application of the contra proferentem rule to the facts of this case causes difficulties. The parties to the Agreement cannot be readily categorised as grantor and grantee - they had each been served with a council order requiring them to reconstruct the wall, the wall was over, or near, their common boundary, and they each agreed to give the other cross easements for the wall. Similarly, Mr Scott's drawing, or indeed any aspect of it, cannot readily be categorised as being inserted for the benefit of one or other of the parties - it was for the benefit of both of them. Mr Marina had some input into Mr Scott's documentation - a council file note of 17 January 2001 records Mr Marina telling Mr Oldfield that Mr Marina had asked Mr Scott to amend certain aspects of his specification before it was resubmitted. While the evidence does not disclose what those amendments were, or whether they were actually accepted, it remains the case that Mr Scott's plan, like other aspects of the Agreement, came to be in its final form through a process of negotiation between the parties. 74 Rather than solve the problems I have just been considering concerning the contra proferentem maxim, I will look elsewhere to decide how that maxim bears on the facts of this case. The different strands of authority which I have been considering so far have related to the meaning of the maxim. There is not the same diversity of views concerning the circumstances in which, and purposes for which, the maxim can be used. 75 The role of the maxim is to enable the court to choose between alternative meanings of the document or clause in question, being meanings which are fairly open. It is not a legitimate use of the maxim to say that two meanings of a particular contractual provision are possible, and that the meaning unfavourable to the proferens should be chosen, if one of those alternative meanings is an unrealistic or unlikely construction of the contract. In Swann v Fonnereau (1796) 3 Ves Jun 41 at 47-48, 30 ER 883 at 887 Sir Richard Arden MR said, concerning a deed of settlement: "This being the grant of Thomas Fonnereau, it is truly argued, that the grant should be taken as extensively in favour of the objects of the settlement, the wife and her children, and as strongly against the grantor, as fair inference can allow …" (emphasis added)

In Neill v Duke of Devonshire (1882) 8 AC 135 at 149 Lord Selbourne LC said: "It is well settled that the words of a deed, executed for valuable consideration, are to be construed, as far as they properly may , in favour of the grantee." (emphasis added)

In Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533 at 554 Griffiths CJ said: "the doctrine verba chartarum fortius accipiuntur contra proferentem , although seldom to be resorted to, rests on a solid foundation of justice. If one party to a transaction uses, verbally or in writing, language reasonably susceptible of two constructions, the party to whom they are used may fairly say that he understood them in the sense most favourable to his contention: Ireland v Livingston LR 5 HL 395: (emphasis added)

In Wilson v Harvey Trinder (NSW) Pty Ltd [1973] 2 NSWLR 870 at 878 Samuels J said: "… one should not be astute to find an ambiguity in order to work all presumptions against the insurer …" 76 It is well established that the contra proferentem rule is only to be used where the document is otherwise ambiguous: Travinto Nominees Pty Ltd v Vlattas [1972] 1 NSWLR 24 at 42 per Mason JA; Brown v Petranker (1991) 22 NSWLR 717 at 726 per Clarke JA (with whom Handley JA and Waddell AJA agreed); Independent Timber Importers v Mercantile Mutual Insurance Ltd (2002) 12 ANZ Ins Cas 61-543, [2002] NSWCA 304 at [22] per Gzell J (with whom Sheller and Giles JJA agreed); C E Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535 at 548 per Dawson Toohey and McHugh JJ. As the statements of law set out in the previous paragraph show, in deciding whether the document is ambiguous, no stretched or artificial notion of ambiguity should be used. 77 Further the contra proferentem rule is a principle of last resort: MLC Limited v O'Neill [2001] NSWCA 161 at [20] per Mason P (with whom Handley and Hodgson JJA agreed); McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579 at 602 per Kirby J; Rouleston Clarke Pty Limited (in liq) v FAI General Insurance Co Limited (2000) 11 ANZ InsCas ¶61-473 at 75,417. In Parkinson v Barclays Bank Ltd [1951] 1 KB 368 at 375 Cohen LJ said: "[counsel] pressed us with the maxim that a deed must be construed contra proferentem . But if, applying the ordinary principles of construction, we arrive at a clear conclusion as to what the parties meant by the language which they used, I do not think that the maxim comes into action" .

Other statements, to the same effect, are to be found in Western Australian Bank v Royal Insurance Co (1908) 5 CLR 533 at 559 per Barton J, and St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) [1975] 1 All ER 772 at 780 per Russell, Orr LJJ and Sir John Pennycuick. 78 That approach is established as the law in New South Wales. In G L Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 at [27] Giles JA (with whom Spigelman CJ and Beazley JA agreed) said: "The rule applies only when, having applied all other aids to construction, ambiguity remains." 79 In the present case, the construction of the Agreement, as requiring the New Wall to be identified by reference to either of the mistakes in Mr Scott's plan, or as requiring the New Wall to be built with a kink in it, are strained and artificial ones. I am comfortably able to construe the Agreement, for the purpose of working out whether the New Wall was built in the place it requires, without any application of the contra proferentem rule. When the Agreement is construed using the aids to construction other than the contra proferentem rule, there is no ambiguity on that topic. Thus, the occasion for the use of the contra proferentem rule does not arise. 80 I conclude that the New Wall has been built in the location required by the Agreement. In consequence, Mr Marina is not entitled to damages for any breach of the Agreement, and is not entitled to any compensation by reason of any encroachment by the New Wall. Extent of the Easement for Waterproofing the New Wall 81 The parties accept that the New Wall must be made waterproof. Mr Scott has expressed the view, which I accept, that proper waterproofing of that portion of the New Wall which lies immediately adjacent to the pavilion, will require a flashing to extend, in the manner shown more precisely in Exhibit C, from the New Wall to that portion of what is now the wall of the pavilion which is immediately adjacent to the top of the New Wall. However if an easement were to be ordered to be created, it would create less interference with Mr Marina's rights if the drafting of that easement permitted Mr Marina to eventually bring the outer skin of the wall of the pavilion to full height, without being impeded in so doing by the easement for waterproofing. It is common ground between the parties that periodical painting of that part of the New Wall which is not immediately adjacent to the pavilion with a waterproof paint or sealant, will suffice to waterproof the wall. 82 While it is common ground between the plaintiff and the defendant that there must be some form of easement for waterproofing, the defendant does not accept that the width of easement shown on the Linker Plan is necessary, and as well the defendant submits that compensation for the grant of such an easement should be made. The Linker Plan shows an easement, described as an "easement to permit encroaching structure to remain and waterproofing variable width" which includes the site of the New Wall, and a roughly rectangular space extending out into Mr Marina's property from the face of that wall. 83 To examine these areas where dispute remains, it is necessary to look at the basis upon which the plaintiff seeks the easement for waterproofing. One basis is in the Agreement. Part of the "Scope" document, which forms part of the Drawings, and hence defines the Works for the purpose of that Agreement, says that one of the requirements for completion is that "the requirements of the emergency order of the local council have been complied with". That emergency order includes a requirement that "the new wall is to comply with Parts 3.7.1 and 3.3.4 of the Building Code of Australia (Housing Provisions) regarding fire separation and weather proofing of masonry (respectively)." The plaintiff has not proved what the requirements of the Building Code of Australia concerning weather proofing are. In light of paragraph 9 of the Agreed Issues Document (set out in paragraph 35 above), there was no need to litigate that issue at the trial. It was common ground between the parties that painting the portion of the New Wall which is south of the pavilion with a waterproof paint, would suffice to waterproof it in the manner required by the Council order. By this route, Ms North has a contractual right to have the waterproofing of the southern portion of the New Wall carried out. 84 Another route through which the Agreement imposes an obligation concerning waterproofing is that part of the "Scope" document relating to brickwork, which includes the item "build in as necessary all flashings …". I am satisfied that a flashing is necessary between the top of the New Wall and the immediately adjacent part of the wall of the pavilion. In denying access to No. 4 for the purpose of constructing that flashing, Mr Marina is in breach of his obligations under Clause 3.1 of the Agreement. Insofar as the construction of the flashing would require more than the mere granting of access, but would also require Mr Marina to permit the flashing to be affixed to the outer wall of the pavilion, Clause 11.3 requires him to permit that to occur. By this route, Ms North has a contractual right to have the waterproofing of the northern part of the New Wall carried out. 85 The alternative basis upon which the plaintiff seeks the easement is section 88K of the Conveyancing Act 1919. It provides: "(1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that: (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. (3) The Court is to specify in the order the nature and terms of the easement and such of the particulars referred to in section 88 (1) (a)--(d) as are appropriate and is to identify its site by reference to a plan that is, or is capable of being, registered or recorded under Division 3 of Part 23. The terms may limit the times at which the easement applies. (4) The Court is to provide in the order for payment by the applicant to specified persons of such compensation as the Court considers appropriate, unless the Court determines that compensation is not payable because of the special circumstances of the case. (5) The costs of the proceedings are payable by the applicant, subject to any order of the Court to the contrary." 86 While Ms North has contractual rights to carry out the waterproofing of the New Wall, the contract does not address the question of her having an ongoing right to repair and maintain that waterproofing and replace it from time to time. If Ms North, or her successors in title, are to be able to repair, maintain and replace the waterproofing, it would be necessary for them to obtain the grant of an easement under section 88K. I therefore turn to consider the requirements of that section. 87 I have no doubt that the effective use or development of No. 2 requires that the New Wall be waterproof. Further, as the New Wall is located very near to, or over, the boundary between No. 2 and No. 4 it will in practice be necessary for there to be an easement over No. 4 to enable that waterproofing to occur. Thus, the requirements of section 88K(1) are met. 88 It has not been submitted to me that use of that part of No. 4 which has the benefit of an easement will be inconsistent with the public interest. For the purposes of section 88K(2)(a), the Court needs to be satisfied, regardless of any submissions which the parties might make to it, but on the basis of the evidence before it, that use of the land having the benefit of the easement will not be inconsistent with the public interest. I am so satisfied. 89 Provided only that the easement is drafted in a way, or granted on conditions which, permit Mr Marina to complete construction of the walls of the pavilion, I see no reason why the owner of No. 4 cannot be adequately compensated for any loss or other disadvantage which would arise from the imposition of the easement. The requirements of section 88K(2)(b) are satisfied. 90 The long course of negotiation between the parties in this matter also satisfies me that the plaintiff has made all reasonable attempts, short of litigation, to obtain an easement, but has been unsuccessful. The requirements of section 88K(2)(c) are satisfied. 91 In the result, I would order specific performance of the Agreement, to enable waterproofing of the New Wall to occur, and the creation of an easement under section 88K to permit repair and maintenance of waterproofing of the New Wall to take place, and its replacement from time to time. For that portion of the New Wall which is immediately adjacent to the pavilion, the easement would be of a width sufficient to enable the flashing shown in Exhibit C to be installed, and the easement would be granted on the basis which I talked about in paragraph 81 above. I shall proceed, in this judgment, on the basis that the parties will be able to draft documentation to achieve this objective. To the extent that they are unable to agree on any such documentation, I will settle it. For the rest of the New Wall, I see no need for the easement for waterproofing to extend more than 2cm beyond the eastern most face of the New Wall. That width would be enough to enable the waterproofing material to be applied from time to time, and to remain there. While it would be necessary for any tradesmen who replaced the waterproofing from time to time to enter upon the land of No. 4 to carry out the work, provided the terms of the easement itself made clear that it was for both the application of waterproofing material from time to time, and the retention of waterproofing material, there would be an implied ancillary right which permitted the workmen to come onto the land of No. 4 with such material as was necessary to carry out the waterproofing from time to time: Hemmes Hermitage Pty Ltd v Abdurahman (1991) 22 NSWLR 343. 92 Mr Weber SC, counsel for Ms North, submits that there should not be any compensation payable in respect of the easement for waterproofing because:

(a) the need to waterproof arises solely from the fact of the defendant demolishing the eastern skin of the old brick wall contrary to his development consent;

(b) the plaintiff has paid for the construction of the New Wall

(c) the waterproofing is required to be done as a result of the Council order issued to both the plaintiff and the defendant;

(d) to the extent to which the flashing attached to the outer wall of the pavilion would constitute an encroachment, it is of the most minimal kind, and

(e) no compensation should be payable because the Agreement provides for waterproofing, and mutual releases. 93 I accept the first four of these points as factually correct. I accept the fifth of the points only in part. As I have earlier held, the Agreement provides for the installation of waterproofing by flashing, so far as is necessary, at the northern part of the New Wall, and waterproofing by painting the southern part of the New Wall. For that initial performance of the work, Mr Weber's fifth point is correct. So far as the ongoing maintenance of the waterproofing is concerned, the fifth point is not one I accept. 94 What ought flow from these facts? As paragraph 9 of the Issues Document says, the defendant accepts that compliance with the Council's order 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. When the parties accept that the effect of the order is to require the grant of such an easement, that is a strong, but not necessarily decisive, factor in favour of there being no compensation payable in respect of the easement for waterproofing. In my view, the first and second of Mr Weber's reasons provide a separate, and sufficient, ground for no compensation being payable in respect of the easement for waterproofing. Breach by Defendant of the Agreement? 95 The plaintiff seeks damages for breach of the Agreement by the defendant. The plaintiff alleges that the defendant is in breach of the Agreement in two ways - that he has refused access to the plaintiff's tradesmen to allow the waterproofing to be undertaken, and that he has failed to comply with his obligations to cause cross easements to become registered pursuant to his obligations under Clause 8.2 of the Agreement. 96 From 4 April 2001 Mr Marina has been refusing access to the plaintiff for the purpose of completing the waterproofing of the wall. It follows from my earlier findings that Mr Marina is in breach of Clause 3.1 of the Agreement in refusing to permit access for the purpose of installing flashing between the New Wall and the pavilion, and painting of the southern end of the New Wall. 97 Clause 8.2 of the Agreement requires the defendant to execute documentation to create cross easements for the Wall. His obligation under Clause 8.2 is dependent upon the plaintiff having submitted to him, within 28 days after the completion of the Works, documentation sufficient to create those cross easements. Because the waterproofing has not been completed, the Works are not completed. Thus the occasion for the defendant to execute documents creating the cross easements has not yet arisen. The defendant is not in breach of Clause 8.2. 98 However, the reason why the defendant is not in breach of Clause 8.2 is because the Works are not complete, and the failure for the Works to be complete arises from the waterproofing having not been performed, which is in itself a breach of Clause 3.1, on the defendant's part. The Agreement contemplated, expressly, that registration of the cross easements would follow upon completion of the Works. Thus, any damage which the plaintiff might have suffered by reason of the cross easements not having been registered is special damages for breach of Clause 3.1. 99 The damages the plaintiff claims are largely legal fees. On 4 April 2001 Blake Dawson Waldron rendered her a tax invoice, relating to professional services concerning the boundary wall for the period ended 31 March 2001, in a total amount of $4,157.52, inclusive of GST. That liability was incurred by the plaintiff before the breach on which the plaintiff relies. As well, consideration of the items for which Blake Dawson Waldron charged (Exhibit D page 875-876) shows that many of them are of a nature which could not be a consequence of a breach on the part of the defendant. The plaintiff is not entitled to any damages concerning this tax invoice. 100 On 2 May 2001 Blake Dawson Waldron rendered a further tax invoice, for an amount of $2,480.48 inclusive of GST, relating to advice concerning the boundary wall for the period ended 30 April 2001. The narration concerning that account (Exhibit D page 907) reveals some items which are likely to be a consequence of a breach on the part of the defendant of the Agreement, and others where I cannot be satisfied that that is the case. No attempt was made, by either evidence or submission, to analyse this memorandum of fees, or any of the other memoranda of fees which relate to Ms North's claim for damages. When a court is assessing damages for breach of contract, it "… is not relieved from the duty of assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty" (per Street CJ, Howe v Teefy (1927) 27 SR (NSW) 301 at 305-306, quoted by Dixon and Fullagar JJ, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 412.) Even so, the plaintiff still bears the onus of proof concerning the quantum of damages. The plaintiff has not established that any more than $500 of the face value of that memorandum of fees arises from a breach on the part of the defendant. 101 On 1 June 2001 Blake Dawson Waldron sent an additional invoice, for a face value of $5,110.48, relating to the period ended 31 May 2001. Consideration of the matters to which this memorandum of fees relates (Exhibit D page 916) suggests that some of it relates to a breach by the defendant, and some might not. I would not regard more than $2,000 of the face value of this memorandum of fees as an amount which it is likely results from the defendant's breach. 102 On 28 June 2001 Blake Dawson Waldron sent a further memorandum of fees, for the period ending 27 June 2001. It is for a face value of $1,125.70. Looking at the description of the matters to which that memorandum relates (Exhibit D page 923) I am not satisfied that any of it is a consequence of a breach of the Agreement by the defendant. 103 On 31 July 2001 Blake Dawson Waldron sent Ms North a tax invoice of $1,208.51 inclusive of GST. The narration of matters to which this memorandum relates (Exhibit D page 933) does not persuade me that any of it relates to the consequences of a breach on the part of the defendant. 104 There are certain other, subsequent, memoranda of fees which Blake Dawson Waldron rendered to Ms North, and which she accepts ought properly be taken into account in any order for costs which might be made in her favour, rather than as a claim for damages. The total amount ultimately rendered to her by Blake Dawson Waldron was $77,111. By agreement, that liability was discharged upon payment by her of the sum of $39,473.95, which represented 56% of the sums rendered. It seems to me that this 56% figure should be applied to that portion of the face value of the invoices which is a consequence of the defendant's breach of the Agreement. Thus, of the amounts she paid to Blake Dawson Waldron, the plaintiff should receive as damages the sum of 56% of $2,500, namely $1,400. 105 Ms North also makes a claim in connection with an amount of $968 which she paid to Hill & Blume, surveyors, to prepare a plan for execution and registration. That plan was sent, by Blake Dawson Waldron, to the defendant's solicitors on 20 June 2001. It has not been executed. However, the plaintiff does not now claim that that plan drawn by Hill & Blume should be executed - instead, she now propounds the Linker Plan. I am not satisfied that the costs of preparing the Hill & Blume plan are a consequence of any breach by the defendant of the Agreement. 106 The total damages to which the plaintiff is entitled, by reason of the defendant's breach of the Agreement, is $1,400. Orders

I direct the parties to bring in Short Minutes of Order to give effect to those agreements which they have reached, and these reasons for judgment. **********

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