Issue - the location of the actual title boundary between the properties
12 The plaintiff's case is that the actual title boundary between its property and that of the defendant is that which coincides at site level with the eastern wall of the MCG Hotel and the western wall of the building on the Break Fast land. This is the opinion of the surveyor called for the plaintiff, Mr Nicholson. The defendant's case is that the actual title boundary is located 20 millimetres to the west of the eastern wall of the MCG Hotel at site level and the western wall of its building. It relies upon the evidence of its surveyor Mr Norman.
13 Extensive evidence was given by both experts. They had different explanations for why they differed. Both were in agreement that, if the frontage dimensions shown on the title of 176 Wellington Parade were used to locate the starting point of the disputed title boundary by proceeding west from the appropriate starting point in Powlett Street, the title boundary as shown in the title appears to be 20 millimetres to the west of the eastern wall of the MCG Hotel. Mr Nicholson gave evidence, however, that establishing the location of the disputed title boundary by starting from Clarendon Street and applying the dimensions shown on the title of 178 Wellington Parade, produces a title boundary that is aligned with the eastern wall of the MCG Hotel and the western wall of the defendant's building. For much of the trial this also appeared to be the position of the defendant[5] but, in the course of his evidence, Mr Norman expressed the opinion that Mr Nicholson had made errors in his alignment of Clarendon Street and that, if they had not been made, he would have placed the title boundary where he, Mr Norman placed it. This had not been put to Mr Nicholson when he was first cross-examined. I will refer again later to this issue.
14 Both surveyors had embarked upon the task of re-establishing the boundaries of the two allotments. They had the benefit of similar surveys having been done in the 1970s for both allotments.
15 178 Wellington Parade had been resurveyed in 1974 because of an application to consolidate the titles - CP 100781. 176 Wellington Parade had been resurveyed in 1976 pursuant to an application under s.99 Transfer of Land Act 1958 to accord with the occupation defining the boundaries. Those surveys had been based on adverse possession and monumentation[6] and the intent of the surveys was to adopt the wall of the structures that existed at the time. The MCG Hotel was in its present location at the time of those surveys. The s.99 application survey also resulted in small adjustments in a westerly direction to the southern section of the eastern boundary shown on the title of 178 Wellington Parade.
16 Having regard to the survey history, it is surprising that there should be any discrepancy of the kind identified in this case in the measurement of the Wellington Parade boundaries and the location of the common boundary. Several possibilities were canvassed. For example, the field notes of the 1976 survey of 176 Wellington Parade reveal that, after the field notes were submitted to the Examining Draftsman, a change was made to increase the dimension of the frontage of 176 Wellington Parade by approximately 30 millimetres. It has not been possible to establish precisely why that occurred. The only evidence is the Examining Draftsman's Report which appears to have required that that change be made but the reason is not clear. The longer dimension is said to be calculated from the field notes. How that was done is unclear. Absent evidence from those involved it would be unwise to draw any conclusion. The possibility exists, however, that an error was made at that time. Mr Nicholson's opinion was that the 20mm difference found by he and Mr Norman was probably due to the age of the original survey. He referred to the fact that the equipment and techniques employed now are much more accurate than those employed at the time of those surveys. Mr Norman floated the possibility that the difference may be explained on the basis that the measurements in the 1970s were conducted by ignoring the render on the eastern wall of the MCG Hotel or because the render was not there. This was no more than a possible hypothesis. He did not himself investigate the depth of the render and Mr Nicholson was not cross-examined about that issue even though he was recalled for further cross-examination on related matters. There was also no evidence that the render that can be seen today did not exist at the time of the surveys conducted in the 1970s.
17 In the end a choice has to be made between the opinions. In my view, the opinion of Mr Nicholson is to be preferred. Mr Norman was given the opportunity to be specific about the particular matters that he had relied upon in forming his opinion about the location of the starting point of the actual north-south boundary. The only specific matter he identified was the taking of the measurement from Powlett Street using the dimensions on the title of 176 Wellington Parade. This appeared to be the decisive matter as far as he was concerned but his approach involved giving primacy to it over monumentation. It is well established, however, that monumentation takes precedence over later survey measurements.[7] Mr Nicholson on the other hand gave primacy to monumentation. I am also satisfied that Mr Nicholson's re-establishment survey was significantly more thorough than that of Mr Norman. Mr Norman had relied on earlier surveys he had conducted. He did not, for example, as Mr Nicholson in fact did, attempt to survey the whole block bounded by Wellington Parade, Clarendon Street, George Street and Powlett Street or take into account features (such as a pillar in George Street) in identifying the line of the boundary.
18 There were also signs of partisanship. As noted above, he volunteered, during cross-examination, a criticism of Mr Nicholson that he had in effect made an error which had resulted in changing the location for survey purposes of the corner of Clarendon Street and Wellington Parade from which he had made his measurements using the title measurements for 178 Wellington Parade. Mr Norman said that Mr Nicholson had said in his report that the boundaries that he, Mr Nicholson, had adopted had resulted in a step in the Clarendon Street alignment which he had attempted to rectify by putting a bend in that alignment. He argued that this had resulted because Mr Nicholson had in fact displaced "the title ... from its correct position".
19 This was an important assertion. If true, it would explain the differences in their measurements. It also involved a serious criticism of Mr Nicholson's work and expertise. It arose, however, from a misinterpretation of Mr Nicholson's Survey Report. What Mr Nicholson had done was introduce a bend in the alignment of Clarendon Street at the northwest corner of the certificate of title and amend the angle at the south-western corner. This was required to maintain the title angle for the corner of the property at George and Clarendon Street - Mosspennock House. He did not, however, make any change to the location of the corner of Clarendon Street and Wellington Parade. The alignment changes were made by Mr Nicholson as a result of his survey of the whole block, including the Clarendon Street boundary. Mr Norman himself has not recently surveyed the Clarendon Street boundary. The issues identified by Mr Nicholson required the alignment of Clarendon Street to be changed whether his eastern boundary of 178 Wellington Parade or that of Mr Norman was adopted.
20 Finally, I note that Mr Nicholson and Mr Norman agreed on a joint report but Mr Norman was not permitted by his client to sign it. As to the variation in the common boundary positions between the two properties, the document records their agreement that:
(Note: arrows point to areas of cladding)