Plaintiff v First Defendant

J Collopy (solicitor; appeared in addresses for part of 1 December 2021)

1 The plaintiff, Ray Malone, said that he purchased 6 Shandford Avenue, Brighton in about January 2011 and moved into the property later that year.

2 The plaintiff's neighbours, at 8 Shandford Avenue, Brighton, are Michael Hirsch and Andrea Murkies. They are husband and wife and also directors of the first defendant, which became the registered proprietor of that property in 1995. Prior to that, the property was, relevantly, owned by both of Ms Murkies' parents and, later, by Ms Murkies' mother, Adelaide Murkies.

3 Relations between the present neighbours have never been good. The position was exacerbated by events relating to renovations undertaken by the plaintiff to the house and garden of 6 Shandford Avenue commencing in 2015.

4 On 3 March 2015, Mr Hirsch, on behalf of the first defendant, wrote to the plaintiff as follows -

I write in regard to your above property and your recently commenced renovations and works.

I wish to avoid any unpleasantness between us and so I want to advise that the brick, cement block, steel wire and wood post fence that is on my property remains my property. This fence is not on the boundary line and is not a jointly owned fence.

In 2001, my surveyors conducted a comprehensive land and boundary survey and utilising this plan of survey and field records my lawyers lodged an adverse possession claim and a realignment of title boundaries claim with the Land Titles office.

This was successful and a new title was issued that clearly shows that this particular fence and all its attachments and items attached to it, are wholly within my property's boundary and so remain in my property. The face of the fence line facing your property is the new property boundary between our two properties.

I do not want any person to drill into, attach things to, apply anything to, interfere with, destabilise or deleteriously affect my fence in any way please. I do not want anything removed from my fence or anything done to my fence please without my written consent. It would avoid any friction or unpleasantness if this request could be followed and there be no breaches of this request.

Thank you for your understanding.[1]

5 That was the first step in a sequence of correspondence and other dealings that unfolded between early-2015 to mid-2018. Many of those events formed part of the dispute at trial. Critically, in about 2017 it emerged that the first defendant's registered title did not cover all of the land under what Mr Hirsch described as 'my fence'.

6 At trial, both sides tended to insinuate that the other was to blame for the dispute. In that regard, it came to develop an almost medieval character: a bitter enmity acted out via a fight over strips of land; most of which are underneath 'the fence'.[2] There was nothing in it that could make any economic sense.

7 I should describe the properties, the boundary, the five 'sections' comprising 'the fence' and the structures within it. In that connection, I should say that a view, which took place on the first day of the trial, was invaluable.[3]

8 At their respective western boundaries, each property abuts the foreshore reserve at Brighton beach. The boundary between the properties runs essentially west from Shandford Avenue and is the southern boundary to 6 Shandford Avenue and the northern boundary to 8 Shandford Avenue.

9 The plaintiff and first defendant each retained licensed surveyors in order to define the boundary. In 2017 the first defendant obtained the survey of Myles Sewell and in 2020 the plaintiff obtained the survey of Mark Stansfield. In significant respects there is no difference between these surveys.[4] The real differences concern 'the fence' and boundary at 'sections' D and E.

10 The surveys of Messrs Stansfield and Sewell also differ from those of Francis O'Halloran in 1980,[5] Kevin Barge in 2001[6] and Jeremy Pearce in 2017.[7] Mr Stansfield prepared an 'enlargement' comparison of the boundary defined by Messrs Stansfield, Sewell, Pearce and Barge respectively.[8] That is attached and marked 'Annexure 1'.

11 'Annexure 1' indicates that there are five 'sections' of 'the fence': A, B, C, D and E.[9] Section A is adjacent to Shandford Avenue. Section E is adjacent to the foreshore reserve. Sections D, C and B are in between.

12 Nothing of substance turns on section A, which was barely mentioned during the trial.

13 Section B is between the two front garden areas. Prior to mid-November 2017, 'the fence' in section B comprised a 'weld mesh fence'.[10] The fence in section B now comprises a 'masonry fence'.[11] The 'masonry fence' does not stand in precisely the same place as the 'weld mesh fence' which preceded it. The difference between the parties concerning section B, for the most part, concerns events at a meeting on 2 November 2017.

14 Section C is roughly adjacent to the two residences. It was and still is comprised of a 'high capped wall' standing on foundations of concrete brick.[12] The 'split face concrete bricks' in the 'high capped wall' closely resemble those in the walls of the residence at 8 Shandford Avenue.[13] Since early 2018, as viewed from 6 Shandford Avenue, 'the fence' at section C (and sections D and E) has been obscured by a 'brush fence' erected on the title to that property.[14] Since 2001 the first defendant has been the registered proprietor of practically the whole of the land under 'the fence' at section C. As between Mr Sewell and Mr Stansfield, the difference at section C tapers from 1cm to nothing.

15 Section D commences towards the rear of the residence at 8 Shandford Avenue. Viewed from 8 Shandford Avenue, 'the fence' at section D appears to be a continuation of the 'high capped wall',[15] however part of it is comprised by the 'lower red brick wall'.[16] In that regard, Mr Stansfield prepared two further enlargements attached and marked 'Annexure 2'.[17] Enlargement No 1 purports to mark out the 'lower red brick wall' (dark orange). Enlargement No 2 purports to mark out -

(a) the extent to which the 'high capped wall' overlays the 'lower red brick wall' (blue);

(b) the extent to which the 'high capped wall' does not overlay the 'lower red brick wall' (yellow); and

(c) the extent to which the 'high capped wall' is located to the south-west of the boundary defined by Mr Stansfield (pink).

16 The plaintiff contends that in sections D and E there are, in fact, two adjacent 'single walls': a 'skin' of red bricks to the north of the 'high capped wall' to the south.

17 At section D, there was once a 'privacy screen'.[18] In a sense, that has been replaced by 'the brush fence' to which I have already referred.

18 Since 2001 the plaintiff has been the registered proprietor of much of the land under 'the fence' at section D. As between Mr Sewell and Mr Stansfield, the difference is generally about 5 cm and the area of land in dispute is 3,150 square centimetres (or 0.315 square metres).[19]

19 Section E is adjacent to the foreshore reserve. Again, the plaintiff contends that there are two 'single walls'. However, in section E the 'lower red brick wall' is largely overlaid by the 'high capped wall'.[20] The 'rear pier' is adjacent, and the gate from 6 Shandford Avenue to the foreshore reserve is attached to it.[21] A vertical line has been produced in the render via the use of different colours.[22]

20 Since 2001 the first defendant has been the registered proprietor of almost all of the land under 'the fence' at section E. The area of land in dispute is 3,200 square centimetres (or, 0.32 square metres).[23]

21 The total area of land in dispute - in respect of all 'sections' - is 0.844 of a metre; which is less than a square metre.[24]

22 As I have indicated, controversy arises from a meeting on 2 November 2017. Broadly speaking, the meeting concerned various fence structures. Much evidence was given concerning that and a later meeting on 8 November 2017.

23 Thereafter, pursuant to s 99 of the Transfer of Land Act 1958 (Vic) ('the Act'), the first defendant applied to amend the title boundary; this time to accord with the survey of Mr Sewell ('the 2017 Application').[25] The 2017 Application included a report of Mr Sewell that stated, among other things -

The occupation along the northern boundary of LUS [Land under survey] is unchanged since AP121181R was completed. A chainage error in the original survey completed by Kevin Barge LS has been noted and this survey rectifies this issue. Occupation on the Southern boundary accords with Title. This boundary is the result of a boundary re-alignment as completed in PS700718.[26]

24 The plaintiff became aware of the 2017 Application in May 2018[27] and, on 15 June 2018, lodged a caveat claiming an interest in the land.[28]

25 The plaintiff commenced this proceeding by Writ filed on 11 July 2018.

26 It will be evident that the plaintiff commenced this proceeding defensively: in order to take up the dispute provoked by the 2017 Application and the plaintiff's consequential lodging of a caveat.

27 The defensive nature of the proceeding is evident in the plaintiff's pleading.[29] It was also evident in his evidence: he said that he had been 'quite concerned' about Mr Hirsch 'you know, trying to pinch my land'.[30] The real substance of it, however, is that the plaintiff claims that his predecessors built the 'lower red brick wall'. Consequently, he claims -

(a) an interest in fee simple in the land 'occupied' by the 'lower red brick wall', and the 'high capped wall' to the extent that it overlays the 'lower red brick wall';

(b) an interest in fee simple in the land to the north-east of what is described as the 'Stansfield Common boundary';[31] and

(c) that the first defendant is not entitled to become the registered proprietor of the land sought by the 2017 Application.

28 The plaintiff also claims that an agreement was made between him and the first defendant on 2 November 2017 to the effect that 'the boundary between 6 and 8 Shandford Avenue would be determined by reference to the existing title boundaries'. The plaintiff says that the defendant is estopped from claiming title to 'additional land adjacent to the masonry fence [in section B]'.

29 For its part, the first defendant admits several of the underlying contentions of fact, but denies the plaintiff's claims and, more particularly, contends by counterclaim that the first defendant and its 'predecessors in title' have been 'in continuous and exclusive possession' of the land claimed in the 2017 Application since 1983.[32] It follows that, in substance, the first defendant seeks the 're-alignment' of the boundary to the position defined by Mr Sewell.

30 In this context, the plaintiff and first defendant each essentially came to contend that the effect of the survey of Mr Barge and the application to 're-align' the boundary in 2001 ('the 2001 Application') had been in error. In that particular connection, the Court ultimately invited the second defendant to make submissions.

31 It will be evident that, in substance, the plaintiff and first defendant each sought to displace the presently registered title boundary. In that regard, the plaintiff, in effect, relied upon the claimed 'bona fide occupation' of the 'lower red brick wall'. In the end, both parties relied upon the relevant provisions of the Limitation of Actions Act 1958 (Vic) and, in that connection, the principles of the doctrine of adverse possession.[33] In substance, the determinations of the Court in respect of the latter were treated as answering the application (or not) of the former.

32 In this context, the issues for determination came to be -

(a) the reliability and credit of the witnesses, and any inferences to be drawn from the failure of the parties to call certain identified persons to give evidence;

(b) the construction of 'the fence';

(c) whether any agreement or estoppel arose from the meeting on 2 November 2017; and

(d) the claims of 'ownership', 'bona fide possession' and adverse possession.

C Applicable statutory provisions and principles

33 Section 99 of the Act provides relevantly as follows -

(1) A proprietor may make application in an appropriate approved form for the amendment of the folio of the Register -

(a) of his own land, in any case in which the boundary area or position of the land differ from the boundary's area or position of the land actually and bona fide occupied by him and purporting to be so occupied under the title in respect of which the folio of the Register was created, or in any case in which the description in a folio of the Register is erroneous or imperfect on the face of it;

(b) of the land of any other proprietor, where by reason of any error in survey or other misdescription part of such land is actually and bona fide occupied by the applicant together with the land described in the applicant's folio of the Register.

34 In the present instance, it was common ground that 'bona fide occupation' means adverse possession.[34]

35 An application under s 99 having been granted, and the title boundaries of the properties altered in the Register accordingly, s 41 of the Act states -

No folio of the Register under this Act shall be impeached or defeasible by reasons or on account of any informality or irregularity in any application or instrument or in any proceedings previous to the creation of the folio or the making of any recording on it; and every folio of the Register shall be received in all courts as evidence of the particulars recorded in it and all the recordings of those particulars in the Register, and shall be conclusive evidence that the person named in the folio as the proprietor of, or having any estate or interest in, or power to appoint or dispose of, the land described in the folio is seised or possessed of that estate or interest or has that power.

36 In argument, counsel for the plaintiff described s 41 as a 'presumption', although it is, in form, something more than that: by s 41 a folio of the Register is conclusive evidence of the land described.

37 That said, s 42(1) of the Act essentially provides that the registered proprietor holds such land free from encumbrances (except in the case of fraud) and otherwise, pursuant to s 42(2), subject to rights including 'any rights subsisting under any adverse possession of the land'.

38 Related to the above, by operation of sections 8, 9, 14 and 18 of the Limitation of Actions Act 1958 (Vic), exclusive possession of land beyond the period of 15 years can cause the registered proprietor to lose any right of action to recover it.[35]

39 In this context, as I have indicated, much in the present case turned upon whether either party may be said to have had, variously, 'bona fide occupation', 'ownership' or 'possession' of all or part of 'the fence'. To some extent, the terms were often used interchangeably throughout the trial. In any event, both parties sought to call in aid the doctrine of adverse possession. More will be said about that below; however, for present purposes it is sufficient to acknowledge that, for the relevant period, a claimant must establish -

(a) acts of possession constituting an appropriate or sufficient degree of exclusive and physical control of the land; and

(b) a present intention to possess the land, also described as the animus possidendi.[36]

40 Notwithstanding the above, in closing address the plaintiff also sought to rely upon principles relating to the law or doctrine of fixtures, particularly as adumbrated by Lord Cranworth in Ramsden v Dyson-

If a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to preserve in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.

But it will be observed that to raise such an equity two things are required, first, that the person expending the money supposes himself to be building on his own land; and, secondly, that the real owner at the time of the expenditure knows that the land belongs to him and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.[37]

Counsel also referred to a similar passage from the speech of Lord Wensleydale.

41 I do not accept that the above passages and principles have any present application. The fixtures doctrine concerns the ownership of fixtures as a consequence of the ownership of land to which they are affixed; not the other way around. Further, the doctrine arises in respect of the building of a fixture on the land of another. As I understand it, the plaintiff primarily contends that his predecessor constructed the 'lower red brick wall' on the title of 6 Shandford Avenue. Thus, even if it be assumed that such a construction could be a 'fixture', it is not building on the land of another. Moreover, I was referred to no passage in any of the adverse possession authorities in which any court has related the above principles to the doctrine of adverse possession.

42 In addition to the above, insofar as it was submitted that the fixtures doctrine could apply to the building of parts of the 'high capped wall' above the 'lower red brick wall', I am also unable to accept that it has any present application. The necessary relevant findings are presently unable to be made. Among other things, there was either no or insufficient evidence in order for me to feel any measure of persuasion either that Mr Murkies knowingly built the 'high capped wall' on the title to 6 Shandford Avenue or did so believing it to have been on 8 Shandford Avenue. I would not draw the necessary conclusions concerning the state of mind of either Mr Murkies or the Givonis merely from the circumstances in which the 'high capped wall' appears to have been built.

43 The plaintiff also relied upon the following proposition, stated by O'Bryan J in Walsh v Elson -

Where a wall is built on the boundary of two adjoining pieces of land so that the centre of the wall coincides with the boundary line, the adjoining owners are not the tenants in common of the wall, even though the wall was erected at their joint expense, but the property in the wall follows the property in the land upon which it stands.[38]

I pause to note that Walsh concerned issues of 'ownership' and an easement. It was not an adverse possession case.

44 As to estoppel, there seemed to be little or no dispute between the parties that the doctrine will be made out where -

(a) a party acts in a certain manner;

(b) the other party relies upon that action (or representation or conduct); and

(c) relying party consequently suffers loss or detriment.[39]

45 For its part, however, I acknowledge that the first defendant emphasised principles relating to the inferring of agreement.[40]

46 The first witness for the plaintiff was Mark Stansfield, licensed surveyor. Mr Stansfield gave evidence with reference to his expert report dated 20 May 2020.[41]

47 The essential substance of Mr Stansfield's opinion was evident in the conclusion to his report, in which he stated as follows -

6.1 In my opinion the boundary within Section (E) as established by Kevin Barge LS and as adopted along the face of the northern single brick wall is incorrect and he should have adopted the centreline between the 2 single brick walls.

6.2 In my opinion the boundary within Section (E) as established by Myles Sewell in Application 140247E [ie, the 2017 Application] has attempt to adopt the same boundary as the Kevin Barge survey being along the face of the northern brick wall is incorrect and he should have adopted the centreline between the 2 single brick walls.

6.3 In my opinion the boundary within Section (D) as established by Myles Sewell in Application 140247E has adopted the centre of the northern single brick wall and he should have adopted the centreline between the 2 single brick walls.

6.4 In my opinion the boundary within Section (C) as established by Myles Sewell in Application 140247E has adopted the face of the double brick wall and is for practical purposes correct, albeit for some minor survey differences.

6.5 In my opinion the boundary as established within Sections (C), (D) and (E) as established by Myles Sewell in Application 140247E has attempted to introduce a series of steps in the boundary and has failed to observe that a practical straight line can be fixed in accordance with my survey as outlined in Section 4.3.6 above. Furthermore the intent of the original survey in LP14606 was to have a straight boundary without any introduced steps or bends.

6.6 In my opinion my survey has established that the boundary between Nos 6 and 8 Shandford Avenue is the centreline between the lower and higher single brick walls within Sections (D) and (E) and the northern face of the double brick wall within Section (C) which practically forms a straight boundary between the western extremity of Section (E) and the eastern extremity of Section (C).[42]

48 At the time of Mr Stansfield's report, the survey of Mr O'Halloran in 1980 had not been uncovered and so had not yet been considered.

49 Mr Stansfield addressed his opinions in oral evidence. He confirmed that the title boundary passed between what he described as 'two single brick walls' in sections D and E and along the face of the high capped wall in section C. He was 'not sure' when or how the 'lower red brick wall' was built, although he thought that it might have been built 'to provide some support for the capped single brick wall'.[43]

50 Mr Stansfield was of the view that the 'lower red brick wall' extended slightly into section C.[44] He was also shown the survey of Mr O'Halloran and considered it to show 'two brick walls' that were 'shown as hatching on both sides'. He considered the survey to show the 'centre line of those two brick walls' to stand inside 6 Shandford Avenue by 1 centimetre.[45] As to the 'brick fence' shown in the O'Halloran survey, Mr Stansfield said -

It gives no indication on height, length. All it demonstrates is the position of both brick walls relative to the title boundaries in that corner.[46]

The walls that are on the boundary between Sections C, D and E or within those sections, are not the same walls as that wall in the 1980 survey. The 1980 survey shows the join between the brick walls as 1 centimetre from the title boundary. My latest survey, which is the green line on my plan at the rear pier at the back it can be calculated that that is, in fact, 19 centimetres from the original title boundary.[47]

52 In respect of the 'wall now there', Mr Stansfield stated -

The join between the two single brick walls is now 19 centimetres from the original title boundary. In 1980 it was only 1 centimetre. Both are standing inside No 6 property. So they can't be the same brick wall. They can't possibly be.[48]

53 Mr Stansfield considered that the accuracy of the O'Halloran survey would depend 'on how accurate the surveyor was doing it', but 'would be very accurate'.[49]

54 Mr Stansfield was of the view that the survey of Mr Barge in 2001 had a 'very big error ... these things happen unfortunately'.[50]

55 As to his own opinion, Mr Stansfield explained, in summary, that -

... I have defined the join between the two single brick walls as the boundary, lining up perfectly with the high - the face of the high brick wall, the capped high brick wall within section C.[51]

56 He also did not agree with all aspects of the survey of Mr Sewell, particularly in respect of sections D and E.[52] Among other things, Mr Stansfield identified similarities and differences in the boundaries as defined by Mr Barge and Mr Sewell. As to the adoption by Mr Sewell of the 'same' measurement at the 'rear leg', Mr Stansfield said it was 'probably because he's established that it was the same occupation at the time'.[53]

57 Mr Stansfield's opinions were challenged in cross-examination, but remained essentially unaltered.

58 Mr Stansfield confirmed that the difference between his opinion and that of Mr Sewell in respect of section E is 'the width of a brick'.[54] He also confirmed that at section E the 'high capped wall' portion was 'a decorative wall which has been built above two single brick walls'. He said that there were 'two single brick walls which appear to be a double brick wall'.[55]

59 Mr Stansfield gave evidence about the abstracts of field records of Mr Barge and Mr Sewell respectively. As to the accuracy of that of Mr Barge, he said -

... it depends on how the surveyor had drawn these. They're not to scale. They don't always show everything. And particularly in a case like this, they probably wouldn't show - - -[56]

60 Mr Stansfield said that he did not know whether Mr Sewell had interpreted the boundary for section E or 'just adopted the boundary from the previous survey [ie, that of Mr Barge]'.[57]

61 Mr Stansfield confirmed that he practically agreed with Mr Sewell in respect of section C. The 'main disagreement' was in respect of sections D and E.[58]

62 As to his instructions, Mr Stansfield confirmed that -

My instructions were to go out and do a survey and to find the boundaries as I felt it was. Or as I know it is. They were my instructions.[59]

63 The issues were sections 'C, D and E in particular'; section B 'wasn't the issue in question'.[60] Mr Stansfield had not been given specific instructions concerning 'occupation of the wall'. He had also not been given any photographs of what the wall looked like previously.[61] He rejected the suggestion that he had simply adopted the assessment of Mr Pearce that there had been two single brick walls. He said 'I haven't adopted his finding. I've adopted my finding.'[62]

64 Mr Stansfield confirmed that in undertaking work as a surveyor -

We look at the age of the fencing. We look at the type of the fencing. We look at where the fencing is defined as the boundary. I mean, for instance, a paling fence, the boundary is where the palings meet the rail. There's Crown boundaries involved. There's a lot of decisions that need to be made in relation to people's properties.[63]

65 In substance, Mr Stansfield confirmed that the difference between his opinion and that of Mr Sewell came down to the difference between their views concerning 'occupation'.[64] Mr Stansfield said that the difference amounted to a different 'interpretation of the boundary', in respect to which he essentially acknowledged the potential significance of instructions from the client, albeit that 'the client may not have been aware that those two single brick walls went through'.[65] In that regard, he acknowledged that determining adverse possession is ultimately 'up to this Court'.[66]

66 Mr Stansfield was a confident witness. He endeavoured to assist the Court. I reject the contentions of the first defendant that Mr Stansfield was not forthcoming and had difficulty making appropriate concessions.[67] I also reject the contention that Mr Stansfield 'realised' that he had 'made the mistake' about the 'single capped wall in section E: that was not my sense of his evidence at all.[68] It does not follow, of course, that all aspects of his evidence must be accepted.

67 Angelo Racovalis was the plaintiff's builder in connection with the renovations undertaken at 6 Shandford Avenue between 2015 and 2018. Mr Racovalis gave evidence of both a lay and expert nature. His expert report was admitted into evidence.[69] In conclusion, his report stated -

4.1 The brick wall between 6 and 8 Shandford Avenue [ie, the 'lower red brick wall'] is currently supporting a section of the raised tile area (rear garden) shown on photos and the red brick grid structure is a footing system which interlocks with the entire brick wall (apart from the section that EBR [Mr Racovalis' company] re-bricked). If the brick wall was removed in the future it would significantly compromise the structural integrity of the red brick grid system and the raised tiled section in the rear garden of the site [ie, at 6 Shandford Avenue].

4.2 In my opinion, the brick wall to the boundary and the supporting grid pattern brick support would have been constructed at the same time by the same contractor, as the same materials were found in the construction of these areas, and because the brick wall and the red brick grid structure are interlocked.[70]

68 Mr Racovalis gave oral evidence that the render on the 'lower red brick wall' matched that on the house of 6 Shandford Avenue.[71] The 'lower red brick wall' had 'cement based mortar'.[72]

69 He also gave evidence in respect of pool light fittings in the 'lower red brick wall' at 6 Shandford Avenue,[73] and the 'privacy screen', which had a footing foundation and steel columns 'DynaBolted' into the 'lower red brick wall'.[74]

70 Mr Racovalis referred to the in-ground pool at 6 Shandford Avenue. He also identified a 'red brick grid structure'. There were four red brick piers that connected the 'grid structure' to the 'lower red brick wall'.[75] In his view, the 'entire section, it had all the same red brick'.[76] It also had the same mortar.[77] In his view, it was likely to have been constructed about the time of the construction of the pool in the 1970s.[78]

71 In that regard, Mr Racovalis was taken to a set of plans that had been obtained from the Council. In that portion of his evidence, Mr Racovalis referred to the condition of 6 Shandford Avenue going back to the 1950s.

72 Mr Racovalis said that in bricklaying a wall it would have made sense - if it was all being done at the same time - 'to use the same brick, front and back'.[79]

73 Mr Racovalis gave evidence concerning the meeting on 2 November 2017, a subsequent meeting on 8 November 2017 and his various email communications with Mr Hirsch. Mr Racovalis confirmed that the attendees at the meeting at about 9am on 2 November 2017 had been, on the one hand, the plaintiff, Mr Racovalis, Mr Pearce (licensed surveyor) and Mr Nicolson (solicitor) and, on the other, Mr Hirsh and Mr Sewell (licensed surveyor).[80] Mr Racovalis' evidence concerning the meetings and communications to which I have referred will be considered further in part F below.

74 Towards the end of his evidence in chief, Mr Racovalis said, in respect of Mr Hirsch, that in '25 years of building I've never met a man so hard to work with'.[81]

75 Mr Racovalis was cross-examined at length. None of that, in my view, altered the substance of the evidence that I have outlined. I do not accept the submission of the first defendant that Mr Racovalis' evidence and opinions were displayed to be 'no more than speculation' or that he was 'unable to concede appropriate adjustments to his opinion'.[82]

76 Mr Racovalis did confirm that the mortar in the 'high capped wall' at section C was different to the mortar at sections D and E.[83] He considered the 'high capped wall' to have 'definitely' been bricked 'at a later period' to the 'lower red brick wall'.[84]

77 Mr Racovalis confirmed that he did not know the 'internal composition' of the bricks in the 'high capped wall'.[85] He accepted that the 'upper section' of the 'high capped wall' in section E could be a double brick wall.[86]

78 There was a challenge to Mr Racovalis' recollections concerning the meetings on 2 and 8 November 2017, which included an implicit challenge to Mr Racovalis' veracity as a witness. I have already indicated that I will consider that evidence in some greater detail below. However, I should make it clear that, by my assessment, Mr Racovalis endeavoured to give evidence dispassionately, accurately and from his recollection. He appeared to endure the process and to answer as best he could, no matter who was asking the questions. I reject any suggestion of partiality of any kind in the evidence of Mr Racovalis.

79 The plaintiff described his former occupation as that of 'corporate raider'.[87] He said that he was now retired from corporate life and runs his own investments.

80 The plaintiff gave evidence that he purchased 6 Shandford Avenue in early January 2011. He moved in later that year and settlement seems to have occurred in 2012. 6 Shandford Avenue is the plaintiff's principal residence.

81 The plaintiff gave evidence concerning the retention of Mr Pearce in 2016, in order to determine 'where the boundaries were'.[88] That seems to have occurred as a consequence of Mr Hirsch's assertions that he owned 'the fence'.

82 It was quite clear that relations between the neighbours were poor from the beginning. It was also clear that the plaintiff had kept himself out of the dealings with Mr Hirsch and left much of it to Mr Racovalis. At least part of the explanation for that seems to have been that the plaintiff had suffered a heart attack and was 'avoiding stressful things'.[89] That said, the plaintiff described Mr Racovalis as having been 'beside himself' as a consequence of dealing with Mr Hirsch.[90] That seems to have been one of the explanations for the presence of a solicitor, Mr Nicholson, at the meeting on 2 November 2017. The plaintiff said 'I needed some support too because I needed it to end'.[91]

83 The plaintiff gave evidence concerning that meeting, which is considered in greater detail in part F below.

84 The plaintiff was cross-examined at length. In the course of cross-examination, the plaintiff confirmed that he had not wanted what became the 'brush fence' to extend all the way to the end of section E or to block the view from his terrace.[92]

85 The plaintiff disagreed with Mr Hirsch's version of the meeting on 2 November 2017. He gave evidence that he spoke directly with Mr Hirsch and reached agreements with him, including in respect of the removal of the 'weld mesh fence' in section B, the building of the 'masonry fence' and the retention of the 'title boundary'.[93]

86 Part of the cross examination concerned a contrast between the plaintiff's evidence in relation to the meeting on 2 November 2017 and allegations made over time in the pleadings. I accept the plaintiff's explanations concerning those matters. The plaintiff is not a lawyer. I do not regard the form of earlier pleadings as impugning his version of events.

87 Notwithstanding the above, the plaintiff had deficiencies as a witness. He tended to be discursive - in his own words, there were points where he was 'rabbiting on'.[94] At those points, I had a degree of difficulty in understanding whether and how particular points were related as a matter of chronology. To some extent, that was ameliorated by later access to the transcript.

88 In all the circumstances, I did not come to the view that the plaintiff was untruthful or even necessarily unreliable; merely that he was not good at giving chronological or sequential evidence. For these reasons, I have approached the contentious parts of his evidence with some care.

89 The final witness called by the plaintiff was his solicitor, Leath Nicholson.

90 Mr Nicholson gave evidence concerning the circumstances in which he had known the plaintiff since about 2009 or 2010 and given advice to both the plaintiff and companies associated with the plaintiff.

91 Mr Nicholson became aware of the 'agitation' relating to 'the fence' in about 2016. He viewed it and took some photographs.[95]

92 Mr Nicholson gave evidence concerning the meeting on 2 November 2017. As with the other relevant witnesses, that evidence will be considered in greater detail below.

93 Mr Nicholson was cross-examined at length. Part of the cross-examination was directed to establishing that Mr Nicholson's firm had earned significant fees in advising both the plaintiff and companies associated with him. In that context, Mr Nicholson rejected the suggestion - expressly made - that he was 'motivated' to assist the plaintiff in 'more than just an ordinary solicitor/client relationship'.[96]

94 Like the plaintiff, Mr Nicholson was cross-examined concerning the pleadings, but confirmed that he had not been involved.[97] He was also cross-examined about other documents, steps taken in preparation of the case on behalf of the plaintiff and the circumstances in which his firm had ultimately ceased to act. Mr Nicholson answered those questions patiently and, in my view, sufficiently.

95 Plainly, the cross-examination to which I have referred was intended to cast doubt upon Mr Nicholson's veracity and integrity. It is sufficient to say that it did not achieve its objective. The next day, the suggestion made in respect of Mr Nicholson's integrity was essentially abandoned, albeit that the cross-examination was said to remain relevant to 'weight'.[98] In closing submissions, the first defendant contended that Mr Nicholson was 'not an independent witness and the weight to be attributed to his evidence ought to be considered in this context'.[99]

96 None of the cross-examination to which I have referred caused me to be concerned about Mr Nicholson's truthfulness or reliability as a witness. Indeed, Mr Nicholson impressed me as considered, careful and professional. The less said about the suggestions concerning his integrity and 'independence', the better. In the face of sustained challenge, Mr Nicholson maintained that he was just giving evidence of what he heard and saw. The manner in which he gave his evidence, in my view, underlined his truthfulness and reliability.

97 Mr Hirsch was the first witness called on behalf of the first defendant. He gave evidence over several days.

98 Mr Hirsch was not an impressive witness. His manner was highly argumentative throughout a great part of his evidence. Much of it was dogmatic and superior in tone. Parts of his evidence contained elements of anticipatory defensiveness as well as an unreasonable reluctance to make straightforward concessions.

99 These features were combined, early in the cross-examination, with instances of unnatural pausing while Mr Hirsch seemed to calculate the 'angle' from which the cross-examiner might be coming. Once he settled in, Mr Hirsch tended to give evidence by way of argument rather than simple recollection and answer. Part of this style involved some instances of hatching further details or angles of argument that had not earlier been revealed or deployed. His whole manner was unsettling.

100 It seems to me to be possible that Mr Hirsch believes what he says to be true; indeed, rather definitely and defiantly so. However, the manner in which he gave much of his evidence left me unconvinced that it was being given via any true process of recollection or memory rather than via reconstruction influenced by considerations of overall interest. Having observed Mr Hirsch give evidence over many hours, it seems to me to be possible that the process is a wholly or partly unconscious one.

101 Putting aside whether Mr Hirsch was consciously untruthful as a witness or not (about which I make no ultimate finding one way or the other), I did not consider his evidence concerning contentious matters (and perhaps any matters at all) to be reliable. I have generally approached his evidence with a great degree of caution.

102 Mr Hirsch gave evidence-in-chief for roughly a day and a half and was subsequently cross-examined for about the same period. As with the other witnesses referred to in this part of the reasons, the following is not a summary of the whole of Mr Hirsch's oral evidence at the trial.

103 Mr Hirsch gave evidence that he was an 'investor' and gave evidence of a work history in international finance.

104 He gave evidence concerning the purchase of 8 Shandford Avenue by Mr Murkies in 1980. Mr Hirsch plainly admired Mr Murkies. In 1980, Mr Hirsch was 23 years of age.

105 Mr Hirsch gave evidence of attending 8 Shandford Avenue in the period in which the old dwelling and, it seems, fences, were demolished and re-built by Mr Murkies in order to build a 'dream home'. That was between about late 1982 and late 1983.[100]

106 During construction, Mr Hirsch visited the site with Mr Murkies from time to time. Mr Hirsch gave evidence of the 'laying of a course of red bricks for the north boundary wall, two or three courses, that's my memory'. That was 'in the area' of sections D and E. He said it was 'done early on' and 'when I next visited the wall was completed and there were other works covering that up'. He said that there were red bricks on the side facing 6 Shandford Avenue. He also said that there was 'concrete block' and 'the split brick that the rest of the house is comprised of'.[101] Photographs of one of the split face concrete bricks were produced in evidence.[102] Mr Hirsch said that there were 'several hundred' such bricks in his basement.[103]

107 Mr Hirsch also gave evidence concerning the 'weld mesh fence' and the 'privacy screen'.[104]

108 Mr Hirsch gave evidence concerning discussions with Mr Murkies. Those were relied upon as going to his state of mind rather than the truth of their contents. Mr Hirsch gave evidence of a belief that the red bricks were used 'because of the cost' and also that the boundary between the two properties was in error.[105]

109 Between early 1984 and late 1988 Mr Hirsch was living and working in New York City. He said that after he returned he noticed that 'the Givonis had raised the terrace level' on 6 Shandford Avenue by '4 or 500 millimetres'.[106]

110 In respect of the neighbours at 6 Shandford Avenue, it was evident that Mr Hirsch had known the Givonis. He referred to their sons. It was also evident that he had known the subsequent neighbour, Mr Bardiger. They got on 'very well'. Mr Hirsch said that there were no discussions with those neighbours concerning ownership of 'the wall'.[107] He gave some evidence concerning Mr Bardiger and maintenance of the 'privacy screen'.

111 Mr Hirsch gave evidence concerning the survey undertaken by Mr Barge in 2001. Mr Hirsch said that he had told Mr Barge -

That the weld mesh fence and the other fences were built by my father-in-law and we were in occupation and ownership of those fences and they hadn't moved since [they] were built in 1983, and it was in his opinion that the boundary should be along the north face of that fence to incorporate it into my property.[108]

112 The 2001 Application was made when Mr Hirsch knew that the Givonis 'had sold' but they 'may not have moved out'. He said that he was 'not a hundred per cent sure on that'.[109] The Application was supported by statutory declarations made by Peter Atkinson, Adelaide Murkies and Andrea Murkies.[110]

113 In respect to more recent times, Mr Hirsch gave evidence relating to the renovations at 6 Shandford Avenue commencing in 2015. There was a suggestion that, to some extent, the activities were able to be observed via CCTV.[111]

114 Mr Hirsch took large swathes of photographs - mostly of or relating to 'the fence'.[112] Some of the photographs were taken in 2008 and 2011, but larger numbers were taken on various dates after the renovations commenced in 2015. At various points it was evident that Mr Hirsch had been taking photographs while standing on the roof of the residence at 8 Shandford Avenue, on 'the wall' and, on one occasion, on a ladder looking over the front fence of 6 Shandford Avenue. It was also apparent that he had used a telephoto lens on one or more occasions.[113]

115 Mr Hirsch referred to a letter to the plaintiff in 2015[114] and later correspondence with Mr Racovalis, including in respect of what he described as 'illegal asbestos'.[115] He said that after that he did not have any 'confidence' in the plaintiff's 'word or his undertakings'.[116]

116 Mr Hirsch gave evidence concerning an incident in mid-2017 in which he and Mr Racovalis had had a difference of opinion about the state of the 'weld mesh fence'. Mr Hirsch took a considerable number of photographs and insisted that the 'weld mesh fence' was 'dead straight' and 'perfectly upright'.[117]

117 Mr Hirsch also gave evidence (and was later cross-examined) about the meetings on 2 and 8 November 2017, and subsequent correspondence and events. His evidence concerning those meetings is considered briefly below and further in part F.

118 As I have indicated, Mr Hirsch was cross-examined for roughly the same period as that for which he gave evidence in chief. The cross-examination did not really alter Mr Hirsch's overall 'narrative'. However, it was effective in that it served to reveal and confirm Mr Hirsch's unreliability as a witness. In that regard, the following examples - which are by no means a complete recitation of the features of Mr Hirsch's evidence which caused me concern - should be sufficient to highlight the difficulties in his evidence.

119 When asked about his evidence concerning the 'two or three courses of red bricks', Mr Hirsch said that he saw the construction 'when the building of the red brick wall had been further progressed, not completed'. When his attention was drawn to his earlier evidence in chief - to the effect that when he had next attended 'the wall was completed and there were other works covering it up' - Mr Hirsch then said he 'may have misspoke', but denied changing his evidence.[118]

120 After that, Mr Hirsch conceded that he could not say definitively that the 'lower red brick wall' was or was not 'there' before the old house at 8 Shandford Avenue was demolished.[119] He was also not sure exactly where the 'two or three courses of red bricks' had been put.[120] Notwithstanding that evidence, he later asserted that 'that wall was not there prior to 1980' (when Mr Murkies had purchased 8 Shandford Avenue).[121]

121 When asked about whether a photograph taken by the first defendant's expert structural engineer, Mr Smith, could be showing not the 'lower red brick wall' but 'red bricks supporting the concrete slab', Mr Hirsch initially answered it 'could be', but then qualified his answer to say 'it is most definitely unlikely to be'. He then said that there was 'no chance of it'.[122] In his evidence, Mr Smith acknowledged the possibility.[123]

122 When asked about the complexity involved in building a wall with a combination of 'red bricks and split concrete bricks', Mr Hirsch said that the 'exact same building methodology' had been used when Mr Murkies had built the 'southern wall' (between 8 and 10 Shandford Avenue). He said that he had photographs that he could produce. Mr Hirsch later said that the building method in the 'southern wall' had been 'split concrete block' and confirmed that there were no red bricks.[124] No relevant photographs of the 'southern wall' were produced.

123 Notwithstanding repeatedly insisting that Mr Murkies had built the 'privacy screen', Mr Hirsch did not in fact have a memory of it in 1982/83.[125]

124 Further, when asked about whether the 'privacy screen' had provided a mutual benefit to both neighbours, Mr Hirsch replied 'no'. He then acknowledged the possibility, but said the benefit to 6 Shandford Avenue was 'secondary'. He then again denied that there was any mutual benefit.[126]

125 When asked whether the 'privacy screen' had been built on the title to 6 Shandford Avenue, Mr Hirsch replied 'no'. He later said 'I don't know' before finally concluding 'it appears so'. When asked whether he had known that at the time of the 2001 Application, he commenced upon an argument based upon what he claimed to have been told by Mr Barge.[127]

126 When asked about a photograph that appeared to show a point at which a brick from one of the 'piers' or 'spacers' from the 'grid structure' on 6 Shandford Avenue had been 'mitred' into the 'lower red brick wall',[128] Mr Hirsch said that he knew what a mitre joint was;[129] but when asked about whether the photograph showed one said 'I don't know'. He then sought to say that the bricks appeared damaged.[130] In the course of that evidence, Mr Hirsch referred to the anticipated evidence of 'our expert witness' (ie, Mr Smith). Mr Smith's expert report included a photograph of the wall together with the annotation 'Mitred Pressed Red Bricks, cut with concrete saw'.[131] In his evidence in chief, Mr Smith readily acknowledged that a mitre joint was shown.[132]

127 In respect of the basis for his 'impression' that the terrace at 6 Shandford Avenue had been 'raised' in the period while he was in New York between 1984 and 1988, Mr Hirsch denied that his recollection could be mistaken. He acknowledged that in order to see the terrace he would have had to have looked over the 'high capped wall'. When asked whether he would have to make a conscious effort to see and understand what was there, Mr Hirsch said 'not really' and 'you have a quick glance and then look away'. When then asked whether he had only had 'quick glances', he said that he could not say 'definitively' how many times he looked and conceded that there had not been a conscious effort by him to look at what had occurred. He confirmed that he did not actually see the raising of the terrace which he says occurred.[133]

128 Mr Hirsch was taken to the series of photographs that he had taken in response to Mr Racovalis' contention that the 'weld mesh fence' had been in poor condition.[134] As in his evidence in chief, Mr Hirsch denied that any rotting was shown and asserted that 'the weld mesh fence' was 'perfectly straight'. He said that the amount of vegetation shown was 'negligible'. On the face of the photographs, however, the vegetation shown was not 'negligible' and it was debateable whether 'the weld mesh fence' was, in fact, 'perfectly straight'.[135]

129 When Mr Hirsch was then taken to a photograph of 'the weld mesh fence' with a superimposed straight red line,[136] he initially accused counsel of placing the line 'on an angle'. Later, he conceded that 'the weld mesh fence' was shown to move 'by half a centimetre to a centimetre'. However, when then asked whether he would accept that it had moved, he said 'no'. He accepted movement of 'a negligible amount; certainly so small as to be invisible to the naked eye'.[137]

130 As to the 'rear pier', he was asked whether it had been built by Mr Murkies and replied 'substantially, ... yes'. He then said that he did not believe that it 'was built like that fully in 1980'. He conceded that he was not sure whether Mr Murkies had built it or not.[138]

131 In respect of the 'two tone colour' of the 'rear pier', Mr Hirsch confirmed that he had not claimed title to the section with the 'lighter colour' in either the 2001 Application or the 2017 Application. When then asked why he had told Mr Racovalis that nothing could be attached to the 'rear pier', he said 'maybe it was an error, a misstatement' and 'I don't know'. When it was then pointed out that he had sought to stop Mr Racovalis from attaching anything to the rear pier, he said 'not at all'. When the issue was further pursued, he said 'maybe I misstated what I owned'.[139]

132 Later, Mr Hirsch acknowledged that he had sent an email to Mr Racovalis in August 2016 in which he had said 'you are not to touch in any way the pier' and 'damage the pier, you'll be responsible for the costs of rectifying'.[140] He also acknowledged another email in July 2017 in which he had said that 'there must be no fixtures or attachment into the pier'. In respect of that email, Mr Hirsch sought to suggest that he had not been 'claiming any rights to the section of the pier not under my fence'. When it was pointed out that was not what his email had said, Mr Hirsch said 'it might have been worded somewhat poorly'.[141]

133 Mr Hirsch confirmed that having been advised that the Givonis were selling 6 Shandford Avenue in 2001 had been the 'trigger' for him to engage Mr Barge. When asked about Mr Givoni, Mr Hirsch said that he was 'still alive today, I believe'. He then retreated and said 'my comment about Mr Givoni being alive ... I wouldn't stake my life on it, but I'm assuming that he is'.[142]

134 When it was suggested that the Givonis may not have received notice of the 2001 Application, Mr Hirsch said 'I couldn't comment on that'. He was then asked whether the Givonis had been living at 6 Shandford Avenue at the time he said that he was 'pretty sure that they were still there'. When it was pointed out that in evidence in chief he had said that he did not know one way or the other, he said 'I can't remember, I'm sorry'.[143]

135 Mr Hirsch denied that there was any 'element of opportunism' in making the 2001 Application at a time when he knew that the Givonis were moving out, although he acknowledged that it 'might appear like that'.[144]

136 When asked about the replacement of the 'privacy screen' with the 'brush fence', Mr Hirsch said that he would have liked it to go 'all the way at a constant height to the beach' but that he had 'no rights to insist on anything'.[145] Nonetheless, when later asked about his resistance to the tapering of the 'brush fence', he said that that his claim to a brush fence at a 'constant height' had been an 'ambit claim' and that if he 'could ask for that and get a dramatic improvement in privacy' he would be 'happy'.[146]

137 When asked whether there had been agreement at the meeting on 2 November 2017 to remove the 'privacy screen', Mr Hirsch avoided the question. He then confirmed that there was no agreement concerning how 'the replacement brush fence' would be built.[147] Later, he conceded that on 2 November 2017 there had been agreement to remove the 'privacy screen'. When then asked to confirm that he must have agreed to remove the 'privacy screen' in circumstances where it had not been agreed 'what the brush fence would look like', Mr Hirsch said 'no, that's not what you said'.[148]

138 Later, Mr Hirsch confirmed his evidence in chief that he had only become aware 'recently' that the 'brush fence' was attached to the 'lower red brick wall'. He was then taken to an email of Mr Racovalis in April 2018 which stated 'you required the [brush] fence to be affixed quite low down on Ray's boundary wall'.[149] Mr Hirsch then speculated 'maybe I didn't take too much notice [of Mr Racovalis' email]'. He then sought to assert a positive 'reason' why he had not responded to that email.[150]

139 Mr Hirsch was further asked about his 'recent' awareness of the affixing of the 'brush fence' to the 'lower red brick wall' and taken to an email sent by him to Mr Racovalis in March 2018 which suggested an awareness of how it had been built.[151] He denied that that was so.[152]

140 Mr Hirsch then confirmed that he had 'intimate knowledge' of 'the fence' 'from my side'. When asked whether the affixing could be seen from his property, he said 'not really'. He then said that he had become aware of the affixing when he had dropped a 'metal screwdriver' while he was up a ladder 'tightening gutter supports'.[153]

141 By contrast, in his evidence in chief Mr Hirsch had said that the connection could 'only' be seen 'from my side' and that he had discovered it while he was 'clearing out my roof gutters'.[154] At an earlier point in his evidence in chief Mr Hirsch also said that he had seen the affixing when he 'happened to look down' while he 'had to take some photographs' at the request of counsel for the first defendant.[155]

142 In respect of the evidence of Mr Stansfield concerning 'two separate walls', Mr Hirsch said 'he's wrong'. Mr Hirsch was taken to a photograph taken by Mr Stansfield which includes an arrow and the annotation 'centreline of 2 single brick walls'.[156] Initially, Mr Hirsch said 'there's a gap there, yes'. He then commenced upon a series of retreats in which he described it as 'a slight crack', 'a hairline crack', 'a millimetre crack' and then stated that the brickwork on the left was 'almost married' into that on the right.[157] The photograph - which relates to a section of 'the fence' highlighted in the course of the view[158] - clearly enough shows a gap; not a 'hairline crack'.

143 When asked about the decision to make the 2017 Application, Mr Hirsch said that it had been made after the meeting on 2 November 2017.[159] He later said that when he and Mr Sewell had 'regrouped' at 8 Shandford Avenue, Mr Sewell had said 'I think we can go ahead'.[160] Later still, Mr Hirsch was asked when instructions had been given and he confirmed that they were given to Mr Sewell on 2 November 2017. He then apologised and said that 'it wasn't done immediately'. He then said 'I can't exactly recall'. Finally, he said 'I think maybe that afternoon or the next day or shortly thereafter I spoke to Mr Sewell'.[161]

144 Mr Hirsch subsequently gave evidence in re-examination concerning particular topics, but by that point the damage was done. As I have indicated, his evidence in respect of contentious matters (and perhaps anything at all) is unreliable.

145 In light of the above, it will be evident that I cannot accept the submission of the first defendant that Mr Hirsch was 'an impressive and forthright witness' who 'made appropriate concessions'.[162]

146 Stephen Circosta, licensed surveyor, was called to give evidence on behalf of the first defendant.

147 Mr Circosta had prepared letters directed to two distinct aspects of the dispute, namely the interpretation of the survey plan of Mr O'Halloran in 1980 and the opinion expressed by Mr Stansfield. Both opinions were discrete, and both were undertaken on the papers. Mr Circosta had seen 'the fence', but not before he provided his two letters.

148 As to the 'post and rail and ti tree fence' and 'adjoining brick walls' in the survey of Mr O'Halloran, the letter of Mr Circosta stated -

No indication is given on the plan as to the lengths of the aforementioned fences and where they end or possibly meet, nor is the relationship of the fences to the northern title boundary by offset indicated in this particular area.[163]

149 In respect of the opinions of Mr Stansfield, the relevant letter of Mr Circosta concluded as follows -

... it is the interpretation of the brick wall or walls that is in question. What is not addressed in Mr Stansfield's report is the intention of Mr Sewell's application survey. The intention was to rectify the survey computation and drafting error in Mr Barge's Application Survey and not to interpret the brick wall in another way.

Mr Stansfield has also not entirely considered the intention of the application survey, which is based on bona fide occupation. Therefore, Mr Stansfield's point regarding a straight-line boundary is somewhat irrelevant when referring to a bona fide application survey which is based on the interpretation and more importantly the location of the occupation.

Also, it is worth noting that Mr Stansfield agrees with adopting the northern face of the brick wall in Section (C) for 'practical purposes', however does not consider this as an option for Section (E).[164]

150 In that connection, earlier in his letter Mr Circosta had stated -

Section 5.3.6 of the report outlines Mr Stansfield's method and opinion of his adoption of the western portion of the northern boundary within Sections (D) and (E). Mr Stansfield has interpreted that the brick wall is two single brick walls and has determined the centreline between the walls at the boundary.

This depends on the interpretation of the brick wall as viewed in Section (E). In Mr Stansfield's opinion, he has identified two single brick walls. However, Mr Barge and Mr Sewell have determined the brick wall in section (E) as one inclusive double brick wall. Interpretations of the brick wall may differ, however the intention of the brick wall when built is of importance and should be considered. The question of whether the brick wall was intended to be built as a shared divisional brick wall, or alternatively built exclusively by the owner of No 8 Shandford Avenue should be reviewed. If the latter is deemed true, possessory rights may apply.

It appears that occupation has changed through the western portion of the northern boundary within section (D). Mr Barge and Mr Sewell have identified the occupation as pickets on brick in this location. However, Mr Stansfield makes no reference to this occupation in his report and Plan of Survey. This occupation appears to be critical as it is determining the boundary in Mr Barge and Mr Sewell's surveys.[165]

151 In his oral evidence, Mr Circosta was directed to the opinion of Mr Stansfield that 'the fence' at section E comprises 'two single brick walls' and stated -

Although the interpretation of the brick wall may differ, what's important and should be considered is the intention of when that brick wall was built and what was its purpose, was it to be shared, or was it exclusively built by a particular owner, and if the latter is true, then possessor's rights may apply.[166]

152 Mr Circosta thereafter gave evidence concerning 'interpretation of the occupation'.[167]

153 In his evidence, Mr Circosta confirmed that he had not been asked to undertake his own 'cadastral' or full 'title re-establishment' survey in order to determine the boundary between the two properties.[168]

154 In cross-examination, Mr Circosta confirmed that his work had amounted to a 'desktop review of the paperwork' rather than forming his own opinion about 'possession' and 'the boundary'. He re-confirmed that those issues came down to 'interpretation of the occupation'. He also re-confirmed that he was not asked to identify whether there 'two walls or one wall'. He confirmed that the O'Halloran survey showed two 'adjoining brick walls' and the boundary between two walls.[169]

155 At one point, Mr Circosta was asked about the significance of any connection between the red brick 'piers' and the 'lower red brick wall' and appeared unusually reticent to give any clear answer. He also said that it was 'outside my area of expertise'.[170] That evidence was ultimately inconclusive and confused as much as anything else. I cannot form a concluded view that Mr Circosta was not impartial in the giving of that evidence. I otherwise regarded Mr Circosta as a witness who endeavoured to assist the Court.

156 Andrea Murkies is a director of the first defendant and the wife of Mr Hirsch. She said that her parents purchased 8 Shandford Avenue 'in 1981'. She had a 'very vague' recollection of the then existing property.[171]

157 She also had only 'vague' and 'passing recollections' of the fences. She spoke of a 'ti tree-type fence' and an old shed. It was not something that she took 'great interest in'. The fence used 'the same brick that the house was made from'. She remembered the 'weld mesh fence', but not the 'lower red brick wall'. She recalled that there was a pool at 6 Shandford Avenue. She recalled the 'privacy screen', but was not exactly sure when it was built. She considered its purpose 'clearly was to stop number 8 being overlooked from number 6'.[172]

158 As Ms Murkies' evidence unfolded, it was evident that her recollections tended to be rather vague and general, perhaps unsurprisingly having regard to her lack of real involvement in the dispute as well as the passage of time involved. To some extent, and perhaps also unsurprisingly, her evidence seems likely to have been influenced by things that she had been told by Mr Hirsch as well as his passionate convictions concerning the matter.[173] It follows that the style and vagueness of Ms Murkies' evidence generally tends to limit its value. However, I should make it clear that I consider Ms Murkies to have endeavoured to give evidence truthfully.

159 Ms Murkies gave evidence concerning the 2001 Application to 'realign the boundary to show our occupancy of the brick wall'. The application and statutory declarations were drawn by the solicitors. Their intention was to show 'exclusive possession' and 'occupation'. After the application was granted, she 'assumed that the entire brick wall was now on the title of number 8, and the weld mesh fence'.[174]

160 She thought that the Givonis sold 'soon after'. She did not recall any conversation with the Givonis or Mr Bardiger concerning 'the fence'. The first defendant was said to be responsible for maintenance.[175]

161 She has not been involved in the dispute with the plaintiff. She had no relationship with the plaintiff and has never engaged in a conversation with him. She did not 'lead' the 2017 Application. She made another statutory declaration.[176]

162 The cross-examination tended to confirm the vague and general nature of Ms Murkies' recollections, to which I have earlier referred. The character of her evidence was confirmed rather than altered.

163 I should say that in the course of the cross-examination Ms Murkies referred to 'cost cutting' as an explanation for the 'lower red brick wall'.[177] That answer had a particularly throwaway quality to it. I give it no weight.

164 Andrew Smith was the final witness called to give evidence on behalf of the first defendant. He is a construction engineer with degrees in civil engineering and applied mathematics and physics.

165 Mr Smith prepared a report following his inspection of parts of 'the fence' from 8 Shandford Avenue.[178] He also conducted a 'mortar test'.[179] Mr Smith reproduced a considerable number of photographs in his report accompanied by commentary and opinions.

166 Among that commentary, Mr Smith ventured opinions that -

(a) there had been sections where the 'Pressed Red Bricks' [ie, the red bricks] were mitred into what he described as the 'Pressed Red Brick Wall' [ie, the 'lower red brick wall'] on the side of 6 Shandford Avenue;[180]

(b) the 'Pressed Red Brick Wall' and the 'rear pier' and under the 'Split Brick wall' [ie, the 'high capped wall'] has lime mortar whereas the 'Split Brick wall' has off white cement mortar;[181]

(c) the lime mortar at that point is the 'same' as that sighted by Mr Smith under the concrete slab at 8 Shandford Avenue (at the site of the mortar test);[182]

(d) the 'foundation' of the 'Pressed Red Brick Wall' is 'nearly entirely on the title of No 8';[183]

(e) the 'Pressed Red Brick Wall' is 'likely to be the same wall shown ... in the ... O'Halloran Survey plan';[184]

(f) the 'Pressed Red Brick Wall' was constructed by No 8 for the benefit of No 8, 'prior to the Split Brick Wall being constructed';[185] and

(g) the frame for the 'privacy screen' was constructed before the 'Split Brick Wall'.[186]

167 Some of those opinions appear to be either derived from or significantly influenced by aspects of the instructions, photographs and documents provided to Mr Smith. From his further researches, Mr Smith concluded that the 'Pressed Red Brick Wall' was likely to have been constructed before 1969.[187]

The Pressed Red Brick Wall [ie, 'the lower red brick wall'] along the Public Way, based on the information above was constructed prior to 1980.

The Pressed Red Brick Wall under the Split Brick wall [ie, 'high capped wall'] appears to have been constructed to the sole benefit of No 8 and is located on the land of No 8 (Lower portion of wall that was raised by the Owner's (sic) of No 8).

From the photos presented, there is no benefit for the Pressed Red Brick Wall to the support [of] the raised terrace (Now demolished) located at No 6. The Pressed Red Brick Wall is separated from the raised terrace, due to the garden bed stub wall that separated the Pressed Red Brick Wall from the terrace structure.

The Owner of No 8 took the opportunity to construct a Split Brick wall over the Pressed Red Brick wall.

This conclusion is based solely on the photographic evidence and testing of the mortar done on 4/11/20.[188]

169 Mr Smith gave oral evidence concerning 'the fence', particularly sections D and E. He took a sample of the mortar from 'the wall' when he crawled into a tight space underneath the concrete slab and near the pool at 8 Shandford Avenue.[189] He later gave evidence that the mortar in the sample was 'lime mortar only' and therefore 'likely that that wall is pre 1980'.[190]

170 Mr Smith was referred to the photographs and gave evidence concerning the 'spacers' shown between the 'grid structure' and 'lower red brick wall' at 6 Shandford Avenue (referred to elsewhere in the course of the hearing as 'piers', although Mr Smith disagreed with that description). He said that the 'spacers' provided 'stiffening' for the 'stub wall' at 6 Shandford Avenue; not the 'party wall' between the properties.[191]

171 As I have earlier identified, Mr Smith noted that the connection was 'mitred in'. He did not think that was far from where he took his sample. He also identified piers that had supported the 'concrete terrace' at 6 Shandford Avenue.[192]

172 In cross-examination, Mr Smith was taken to further photographs and considered it to be unlikely that the 'capped brick wall' at sections C and D was constructed of any red bricks. Initially, Mr Smith said that closer to the beach there was a 'double [red] brick wall', although he acknowledged that he had 'no way of knowing' and that he did not have 'x-ray vision'. He said 'we will only know if we demolish it'.[193]

173 When taken to another photograph, however, he considered that bricks had been placed on top of a 'pre-existing wall' and 'probably on top of the pre-existing terrace as well'. As I have earlier noted, he was also of the view that the photograph showed a 'definite separation' which supported the theory of 'two walls'. He had not inspected the location shown in the photograph.[194]

174 Later in his evidence, and by reference to drawings which he examined during the lunch break,[195] Mr Smith expressed the view that the theory that there is 'a single skin' is 'actually correct', for 'at least the upper metre'.[196]

175 As to what was shown in the O'Halloran survey, Mr Smith said 'I'd ask Mr O'Halloran, actually, what he meant, rather than me'.[197]

176 Mr Smith gave evidence concerning the 'spacers' that was consistent with his earlier evidence. Having regard to that evidence, he conceded that it was not possible to say that the 'lower red brick wall' was for the exclusive benefit of 8 Shandford Avenue. He accepted there could be a 'shared benefit'. In this portion of his evidence, as I have earlier noted, Mr Smith confirmed that the 'lower red brick wall' supports the concrete slab terrace at 8 Shandford Avenue.[198]

177 Mr Smith also gave evidence concerning his 'mortar test'. He could not give the exact location of the test. Ultimately, he accepted as an 'alternative' the theory that the point at which he had taken the mortar sample could be 'a course of bricks constructed to provide support to the concrete slab'.[199]

178 In Mr Smith's view, the use of 'lime mortar' more likely indicates construction prior to 1969. He considered the difference in dates as between him and Mr Racovalis to be 'six of one, half a dozen of the other'. He confirmed, however, that he had assumed that the bricks at the point at which he took his sample were the same as those elsewhere. He also confirmed that if you were starting a wall from 'scratch' you would use the same materials and mortar.[200]

179 As to the 'lime mortar', specifically, Mr Smith conceded that 'you can be fooled' and confirmed that he had not actually inspected 'the wall'.[201] Later, when he was told that Mr Racovalis had given evidence of 'cement mortar' that had required the wall to be jackhammered when demolishing it, Mr Smith conceded that if that was correct it would support the conclusion that the 'lower red brick wall on number 6 is different to the lower red brick wall portion that you [Mr Smith] took your [mortar] test from'.[202] He also considered some of Mr Racovalis' observations concerning construction methods relating to the 'grid structure' and pool to be 'reasonable'.[203]

180 In re-examination, Mr Smith confirmed that the 'lower red brick wall' appeared to provide some benefit to 'number 8'.[204]

181 I should say that Mr Smith was an impressively professional and plainly honest witness. He was careful in his evidence and it will be evident that he made several concessions.

Other observations and features of the evidence

182 It will be evident from the above that significant parts of the respective expert 'building' evidence (Mr Racovalis for the plaintiff; Mr Smith for the first defendant) ultimately accorded. There were differences; but it will be evident that the common ground was more important.

183 As to the survey evidence, it was ultimately somewhat ironic that despite the enthusiasm of each party in seeking to make out the location of the 'boundary' proffered by their preferred expert (Mr Stansfield for the plaintiff; Mr Sewell for the first defendant), it became evident that whether any such 'boundary' could be adopted at any particular part of 'the fence' must fall to be determined somewhat less by the opinion of any particular surveyor than by whether or not it could be and was established that either party had been in 'bona fide occupation' or adverse possession of any part of the disputed land and therefore that point of the 'fence'. In that regard, in the manner in which the evidence unfolded, it became important to consider the history of the construction of 'the fence' and, in due course, the doctrine of adverse possession.

184 I should mention that each party criticised the other for failing to call certain persons to give evidence.

185 The plaintiff criticised the first defendant for failing to call Mr Sewell. It was evident that Mr Sewell probably could have been subpoenaed to give evidence.[205] The first defendant also made a late application to call him in respect to matters of fact concerning the meeting on 2 November 2017. That application was resisted by the plaintiff, but was granted.[206] Subsequently, however, the solicitor for the first defendant informed the Court by email that Mr Sewell was 'now un-co-operative' and would not be called.[207]

186 The position with Mr Sewell was plainly complicated. I am not prepared to draw an inference in respect to the failure of the first defendant to call him. However, particularly in respect of his plan of survey, the fact that he had not been called to give evidence, and therefore not been able to be exposed to cross-examination, must affect the weight that I am able give to it as well as what might be said to have been the reasoning behind it.

187 In a strikingly bold move, the first defendant criticised the plaintiff for failing to call the Givonis. There was a pretext for the criticism, but it was very thin. If anything, the 'flavour' of the evidence at trial suggested that the Givonis were more likely in the 'camp' of the first defendant.

188 In any event, I would not be prepared to draw any inference against either party for failing to call the Givonis (or any of their sons). Reading between the lines, each party had potentially as much to gain as to lose by calling the Givonis. It is not a case in which the unexplained failure to call the Givonis glaringly points in any particular direction.

189 That said, the apparent fact that Mr and Mrs Murkies are deceased and otherwise the parties did not call the Givonis (assuming that they were available[208]), Mr Bardiger, any builder relating to 8 Shandford Avenue (in 1982/83) or any earlier builder of 6 Shandford Avenue (in or before the mid-1970s) (assuming that any of them were available) meant, ultimately, that both parties were pressing the Court to make findings about historical matters relating to 'the fence' by reference only to the oral evidence to which I have already referred as well as the manner in which 'the fence' was constructed and certain documentary materials admitted into evidence. There were risks for both parties in that approach; albeit, of course, that the risks in calling any witnesses of the kind to which I have referred (if available) concerning events that occurred such a long time ago may well have been greater.

190 The first defendant also criticised the plaintiff for failing to call Mr Pearce. I would not draw any inference against the plaintiff for failing to do so. Mr Stansfield was called in his place and gave evidence and was extensively cross-examined. In his evidence, Mr Stansfield gave some measure of explanation of why it was that Mr Pearce had not been called.[209] As with Mr Sewell, however, the fact that Mr Pearce was not called means that any weight able to be attributed to any contentious part of his written material is necessarily more limited because he was not able to be cross-examined.[210]

191 In any event, as I have indicated, the issues do not fall to be determined solely by reference to the written survey opinions of Mr Pearce or Mr Sewell (or any other surveyor).

192 Finally, as I have noted, a considerable volume of documentary evidence was admitted into evidence and it has been important not to lose sight of it, particularly in light of the circumspection required in respect to some of the oral evidence. In broad terms, the documentary evidence included tenders directed to -

(a) the titles of 6 and 8 Shandford Avenue respectively;

(b) the purchase of 8 Shandford Avenue by Mr and Mrs Murkies in 1980;

(c) the history and construction of 'the fence' - particularly, the significant number of photographs, most of which were taken at different times by Mr Hirsch;

(d) the 2001 Application;

(e) the correspondence, primarily between Mr Racovalis and Mr Hirsch, relating to the renovation works at 6 Shandford Avenue in the period between about 2015 and 2018 and particularly leading up to and relating to the meeting on 2 November 2017;

(f) the 2017 Application; and

(g) the various expert and survey evidence.

193 As is apparent, the building and, it was sought to suggest, consequential 'ownership' and 'possession' of what I have broadly described as 'the fence' was a central issue, and the subject of much evidence at the trial. In many ways, the determinations relating to that issue emerged as a proxies for the parties' contentions concerning the 'bona fide occupation' and adverse possession of the land on which the various structures comprising 'the fence' stand.

194 As I have noted, the first defendant broadly contended that its predecessor - Mr Murkies - had built 'the fence' in 1982 and 1983 from which it should be concluded that the first defendant had come to possess most of the land on which 'the fence' stands for the statutory period, and thereby dispossessed the plaintiff and his predecessors. That contention was developed evocatively by counsel for the first defendant in final address -

... clearly, those bricks [ie, the split face concrete bricks] designate an attachment and an association, we say, that does say to the world, "We own this. This is part of our property. It matches our house. This is a perimeter fence. And we do own this land on which these bricks stand because we've chosen specifically bricks that match our house". And it's not a shared wall. No one else had any say in the colour of the bricks. "They match our house. They are an exclusive decision of which we exercised sole control in determining those bricks".[211]

195 Counsel advanced that argument in several different formulations, including in respect of the building of the 'weld mesh fence'. In the end, it amounted to a contention that the various features of 'the fence' had amounted to a clear 'proclamation' of 'ownership of that wall' or 'statement of possession' by Mr Murkies and, in due course, the first defendant.[212]

196 For his part, the plaintiff contended that his predecessor had built and therefore 'owned' and 'possessed' the 'lower red brick wall' and therefore the first defendant's claims to 'ownership' and thus 'possession' of it were ill founded. It was also contended that by virtue of his predecessors' ownership and possession of the 'lower red brick wall', he and his predecessors had 'possessed' the parts of 'the fence' above it - particularly at sections D and E - and therefore the land occupied by it.

197 As I have already noted, a perplexing feature of the evidence concerning the history and construction of 'the fence', in some ways, was the paucity of any direct or reliable evidence concerning who had built what structures and when in the period prior to about 1989. In that regard, there was no witness who could give direct evidence concerning the state of 'the fence' prior to 1980. Nor did any of the many photographs display the state of 'the fence' at that time.

198 An equally perplexing feature of the evidence was that even at the conclusion of the case there was not perfect certainty about whether and to what extent several of the structures that came ultimately to comprise 'the fence' had originally been built on the land of either 6 or 8 Shandford Avenue.[213] That problem had its origins in the evidence received, as well as the differing assumptions made and opinions formed by the various surveyors and other witnesses.

199 In the context described, the Murkies' signed the contract of sale relating to 8 Shandford Avenue in December 1980 and seem to have entered into possession in about March 1981.[214] There was no dispute that Mr Murkies demolished the pre-existing dwelling and built his 'dream home' at 8 Shandford Avenue in 1982/83, and that title to that property ultimately came to be held by the first defendant in and since 1995.

200 There was also essentially no dispute that Mr Murkies must have built the parts of 'the fence' comprised by 'split face concrete bricks', namely those parts of 'the fence' referred to as the 'high capped wall'. The 'split face concrete bricks' appear in and were also used in the building of the house and other parts of the fences built at that time at 8 Shandford Avenue. Ms Murkies gave evidence that the bricks are 'the same'. She also gave evidence that those parts of 'the fence' were built by Mr Murkies at that time. I accept that evidence. It is essentially plain from their appearance that the 'split face concrete bricks' in the fences and house were likely to have been laid in the course of the one development.

201 There was dispute concerning the building of the 'privacy screen'. The plaintiff contended that it was built prior to 1982/83. The plaintiff invited that conclusion by reference to the evidence concerning the attachment of the 'privacy screen' to the 'lower red brick wall', the contention that the 'high capped wall' was built after the 'lower red brick wall' and the state of the mortar of the 'high capped wall' behind where the shed once stood. None of that evidence was, in my view, decisive.

202 By contrast, Mr Hirsch gave evidence that the 'privacy screen' was built in 1982/83. However, his evidence is generally unreliable. More particularly, he had no memory of seeing the 'privacy screen' in that period.

203 Ms Murkies gave evidence that the 'privacy screen' was built in 1982/83, including evidence concerning the rationale for it, from the perspective of Mr Murkies: namely, to give him privacy in his study.[215] Notwithstanding the generalities in much of her evidence, I accept Ms Murkies' evidence concerning the timing of the construction of the 'privacy screen'. In that regard, it makes sense that the 'privacy screen' would be built at that time, as a new residence was being built and Mr Murkies' study came to be and still is adjacent to the point at which the 'privacy screen' stood. There was no evidence as to what if any part of the pre-existing dwelling stood adjacent to that point prior to the construction of the new house by Mr Murkies in 1982/83.

204 There was little in the way of evidence about the construction of the 'weld mesh fence', although it did not seem to be hotly contested that it was erected in 1982/83 by Mr Murkies. That was the evidence of Ms Murkies,[216] and I accept it. In that time, a similar 'weld mesh fence' also stood or was built at the corresponding part of the fence between 8 and 10 Shandford Avenue.[217]

205 That leaves the 'lower red brick wall', which was really - and quite intensely - the focus of the present dispute. Both parties essentially laid claim to 'ownership' and 'bona fide possession' of it and, ultimately, the land underneath it.

206 In the course of the trial, both parties tended to refer to the 'lower red brick wall' as an undifferentiated whole. At least part of the reason for that was that it was a term that was defined in opening and thereafter given to the witnesses in an endeavour to make their evidence more intelligible. In that regard, the evidence of Mr Smith, in particular, tended to be a little less easy to comprehend at times because his report and significant parts of his oral evidence tended to use other terms.

207 Another part of the reason is probably the enlargement diagrams prepared by Mr Stansfield and appearing in 'Annexure 2'. The enlargement diagrams were used regularly throughout the trial and enlargement No 1 purports to show the 'lower red brick wall' in dark orange and as an undifferentiated whole.

208 I should add that I am also mindful that it was in the interests of both parties to refer to the 'lower red brick wall' in that way: after all, both parties claimed to have built and therefore to 'own' and 'possess' the whole of it.

209 In this context, as I have noted, the 'lower red brick wall' is wholly or very substantially in sections D and E of 'the fence'.[218] However, it does not comprise the whole of 'the fence' in those sections. In each section, there are also adjacent portions of fence comprised of 'high capped wall'. There are also portions of 'high capped wall' on top of 'lower red brick wall'.

210 In this regard, I note the debate concerning the extent to which it can be said that there are 'two single walls' in sections D and E. Mr Stansfield and Mr Smith each conducted some degree of examination of 'the fence'. Mr Stansfield was of the view that there were 'two single brick walls', albeit 'capped to look like a double brick wall'.[219] By contrast, Mr Smith believed that there was a 'double brick wall'. As he observed, the issue may only be definitely determined via 'x-ray vision' or demolition of 'the fence'.[220] On the other hand, by reference to drawings, he later considered that the view that there was a 'single brick wall' was likely for 'the upper metre of it'.[221]

211 Further, most witnesses - particularly Mr Racovalis and Mr Smith - had the opportunity to examine 'the fence' only or substantially only from the side of 'the fence' of the party that called them.[222] That limitation was sought to be overcome via the consideration of photographs. However, the limitations in drawing conclusions from photographs were evident at various points in the trial. As Mr Smith observed in his evidence -

It is very difficult interpreting photographs. It is way better to actually feel and touch and see [for] oneself. So there's limitations to my comments and I recognise that.[223]

212 Finally, there is also the 'mortar' debate: namely, Mr Racovalis' evidence that the mortar used in the 'lower red brick wall' was cement based and Mr Smith's evidence that his 'mortar test' revealed lime mortar, not cement mortar.

213 Mr Racovalis, of course, considered the mortar at points on the 6 Shandford Avenue side of 'the fence' and Mr Smith's 'mortar test' was at a different point underneath the concrete slab on the 8 Shandford Avenue side of 'the fence' and seemingly otherwise by reference to photographs of the 'rear pier'.[224]

214 To further complicate matters, it emerged in the course of Mr Smith's evidence that it was not possible precisely to identify either the corresponding point (on the 6 Shandford Avenue side) from which his 'mortar test' had originated or even, necessarily, that the red brick wall from which Mr Smith had extracted the mortar was part of the 'lower red brick wall'. Mr Smith was of the view that those red bricks were supporting the concrete slab on 8 Shandford Avenue and essentially admitted of the possibility that it could be a wall separate to the 'lower red brick wall'. At one point he also very fairly conceded that what he thought was 'lime mortar' might, in fact, not be so.[225]

215 All of this means that, in the end, one must be careful when speaking of the 'lower red brick wall'. There are features of the evidence that suggest that at least part of the 'red brick' may not necessarily constitute part of an undifferentiated monolith comprising the 'lower red brick wall', all parts of which were built at the one time.

216 Notwithstanding the above, and in support of the contention that Mr Murkies built the 'lower red brick wall' in 1982/83, the first defendant relied primarily upon -

(a) the O'Halloran survey;[226]

(b) the evidence of Mr Hirsch; and

(c) the statutory declarations prepared in connection with the 2001 Application.[227]

217 The O'Halloran survey was said by Mr Hirsch to have been found in the records of the late Mr Murkies some months prior to trial.[228] It is a one page plan of Lot 7 on LP19110 within certificate of title volume 7272 and folio 261 - being 8 Shandford Avenue - prepared by Francis O'Halloran & Co, licensed surveyors. It is old-fashioned. Much of it appears handwritten or at least to have been prepared by hand. It is certified - by signature of Mr O'Halloran - as being 'in all respects accurate and correctly represents the occupation' as at 19 December 1980.

218 In the O'Halloran survey, the boundary line between 6 and 8 Shandford Avenue is shown as being straight. At roughly what is now referred to as section E, a measurement of '0.01' appears, which was said to indicate an encroachment of 1 centimetre onto the land of 6 Shandford Avenue.[229]

219 At that point of the boundary, there appears an opposed form of hatching. Both parties essentially accepted that the hatching indicates a brick fence. The boundary line appears to pass through the centre of the opposed hatching. The balance of the boundary is described as 'post & rail & ti tree'.

220 As I have earlier noted, Mr Stansfield did not consider the brick fence shown by opposed hatching in the O'Halloran survey to comprise the same wall as that now described as being the 'lower red brick wall'.[230] On the other hand, Mr Smith 'assumed' that the wall was the same, albeit that he also very frankly said that if one wants to understand precisely what the O'Halloran survey means it is better to ask Mr O'Halloran.

221 As to the evidence of Mr Hirsch, I have earlier indicated that his evidence concerning contentious matters is generally unreliable and his evidence concerning the demolition of the pre-existing fence and 'two or three' courses of red bricks is no exception.

222 Although admitted into evidence as going to Mr Hirsch's state of mind, Mr Hirsch had said that red bricks were used in 'the fence' by Mr Murkies as a cost saving measure.[231] Somewhat incongruously, he had earlier said that there 'was no expense spared' in construction.[232] There was no evidence of the relative price of red bricks as opposed to split face concrete bricks either now or in 1982/83.

223 More significantly, it emerged in cross-examination that Mr Hirsch could not be sure precisely where the courses of red bricks had been laid.[233] He also conceded that he could not be sure that the 'lower red brick wall' was there prior to the demolition of the pre-existing dwelling.[234] He also gave two different versions of the state of 'the fence' when he claimed to have next attended after allegedly seeing the two to three courses of red bricks.[235]

224 In short, I do not accept Mr Hirsch's evidence concerning the building of the 'lower red brick wall' by Mr Murkies, and even if Mr Hirsch did see two to three courses of red bricks at the worksite in 1982/83 (which I do not accept), for the reasons earlier identified, I could not be sure that those red bricks did not ultimately relate to the red brick wall on which the concrete slab of the terrace rests at 8 Shandford Avenue, as referred to in the evidence of Mr Smith.

225 I should add that in respect of any suggestion that the 'lower red brick wall' was built other than in 1982/83 by Mr Murkies, Mr Hirsch said that when he returned from living in the United States between 1984 and 1988 he observed the terrace at 6 Shandford Avenue to have been 'raised' by 400 to 500 millimetres. I have already referred to the cross-examination in respect of that claim, which was effective in demonstrating the unreliability of that evidence. I do not accept Mr Hirsch's evidence concerning the raising of the terrace at 6 Shandford Avenue.

226 As to the statutory declarations in support of the 2001 Application,[236] the first was made by Peter Atkinson on 20 August 2001.[237] It emerged that Mr Atkinson (now deceased) was related to the Murkies by marriage. The substantive part of that declaration reads, in full, as follows -

1. I have known the Applicant [first defendant] and the predecessor in title to the Applicant ADELAIDE MURKIES and her late husband ANTONI MURKIES since 1971.

2. Since that time I have been a regular and frequent visitor to the property known as 8 Shandford Avenue, Brighton.

3. I have inspected the Plan of Survey prepared by BARGE MILLER SURVEYORS and certified on 1 August 2001. To the best of my knowledge and belief the fence which is presently on the boundary of the property has been in that position since I first visited in 1982/83 and to the best of my knowledge either the Applicant and or the predecessor in title to the Applicant have had free and liberal and exclusive use and occupation of the Land [defined to mean that identified in the Barge survey], including all the land contained within the abovementioned fence line and described in the Plan of Survey since that time.[238]

227 At least the following may be said in respect of that relatively short document -

(a) it is unclear how it could have been that Mr Atkinson was a 'regular and frequent visitor' to the property since 1971, when it seems uncontentious that Mr and Mrs Murkies purchased the property in December 1980 and did not enter into possession until March 1981 and, for that matter, seem not to have moved in to the property until late 1983;

(b) reference is made to inspection of the Barge 'Plan of Survey' and it is asserted that the first defendant has had 'free and liberal and exclusive use and occupation' of the land delineated in that survey, albeit that it is now said by both parties that the Barge survey was wrong; and

(c) it is said that the 'free and liberal and exclusive use and occupation' of the land has included 'all the land contained within the abovementioned fence line' which may suggest that at that time the first defendant was not using or thought to be occupying the land underneath 'the fence'.

228 Some similar points may be made concerning the equally short statutory declarations of Mrs Adelaide Murkies and Ms Andrea Murkies. In oral evidence, Ms Murkies freely conceded that her statutory declaration had been prepared by the solicitors and she had just signed it.[239] I cannot give any significant weight to those documents, including the declaration of Mrs Murkies that 'the fence' - there referred to in an undifferentiated manner - was 'built by my late husband'.[240]

229 For his part, the plaintiff relied, principally, upon -

(a) the contention that the 'lower red brick wall' had been built upon the land of 6 Shandford Avenue;

(b) the plans and permit application documents relating to proposed pool and other works undertaken at 6 Shandford Avenue in about 1976;[241]

(c) the evidence of Mr Racovalis (and, to some extent, that of Mr Smith) together with various photographs revealing red brick constructions in the garden of 6 Shandford Avenue as well as connections to and 'uses' of the 'lower red brick wall'; and

(d) the evidence of Mr Stansfield, particularly that concerning 'two single brick walls'.

230 In respect of the first of the above contentions, the plaintiff primarily pointed to interpretations and calculations arising out of the documentary evidence that were said to support the conclusion that the 'lower red brick wall' had been built wholly on the title of 6 Shandford Avenue.[242]

231 The then prevailing boundary was said to be identified in a plan of subdivision LP14606,[243] and the conclusion referred to above was, to some extent, said to arise out of an 'exaggerated diagram' prepared by Mr Pearce.[244] A letter from Mr Pearce to the plaintiff dated 20 July 2016 - but which must have been prepared after the 2017 Application - also seems to support that view, at least in respect of section D.[245]

232 The conclusion invited by the plaintiff may also have been supported by an element of the evidence of Mr Stansfield, although the precise meaning of that evidence is somewhat debateable and part of the basis for it seems to involve accepting the correctness of what Mr Stansfield claims to be represented by the O'Halloran survey.[246]

233 Mr Circosta also gave evidence concerning the O'Halloran survey. However, when asked whether the 'lower red brick wall' had been built on the title to 6 Shandford Avenue replied 'I don't know'.[247] That said, that part of Mr Circosta's evidence was at the very end of the point at which, by my assessment, he displayed a degree of reticence.

234 Mr Circosta gave earlier evidence concerning a suggested 22 centimetre 'encroachment' at the northern boundary of 6 Shandford Avenue[248] that, in address, counsel for the first defendant sought to suggest was reflective of a similar 'encroachment' at the boundary with 8 Shandford Avenue from which it could be concluded that 'the double wall was built at least in part always on No 8's property'.[249] The relevant evidence was, however, based in an interpretation of the survey of Mr Pearce.

235 For his part, Mr Smith expressed the view that the 'foundation of the brick wall is nearly entirely on the title of No 8', although that conclusion was expressed by reference to the O'Halloran survey.[250] In oral evidence, I gained the impression that Mr Smith's initial view had been influenced by his instructions and he ultimately seemed to concede that the question was not within his expertise. In that regard, I note his reticence in respect of interpreting the O'Halloran survey.

236 In this context, in address, counsel for the first defendant submitted, variously, that -

(a) the 'common boundary ... is occupied by a fence';[251]

(b) the 'south face' of the 'high capped wall' is 'and always has been on No 8's title';[252]

(c) the 'double fence' encroached 'on the boundary' of 6 Shandford Avenue;[253]

(d) 'No 8' has 'encroached by the width of [the lower red brick wall] ... across its boundary and into No 6';[254]

(e) the 'double wall was built at least in part always on No 8's property';[255] and

(f) 'section D is also one wall, and it was initially built partly on No 6 and partly No 8, but it is a double-brick wall'.[256]

237 In the end, the relevant evidence is of a rather fragmentary, inconsistent and variable quality. I am not confident that it permits of any reliable conclusion concerning where, precisely, the 'lower red brick wall' was built relative to the then prevailing boundary, let alone that the whole of the 'lower red brick wall' was built on the title to 6 Shandford Avenue (prior to 2001). Among other things -

(a) Mr Pearce's 'enlargement diagram' is noted as being 'not to scale';[257]

(b) as I have noted, Mr Pearce was not called to give evidence and in those circumstances I am hesitant to embark upon any form of confident interpretation and reliance upon his documents without having heard from him;

(c) for that reason, I am unable to attribute any significant weight to the relevant evidence of Mr Circosta, as it is based in an interpretation of the survey of Mr Pearce;

(d) the relevant evidence of Mr Stansfield is debateable as to whether it was referring to 1980 or 'now', at another point in his evidence Mr Stansfield stated that he was 'not sure' when or how the 'lower red brick wall' was built[258] and otherwise in his evidence (and with reference to the O'Halloran survey) he said no more than 'the two brick walls up in the northern corner are very close to the title position';[259]

(e) as explained further below, I have significant doubts about the reliability of the O'Halloran survey;

(f) in that regard, Mr O'Halloran was not called to give evidence (assuming that he could have been called), which gives rise to further hesitancy of the kind to which I have earlier referred;

(g) it follows that I can attribute little weight to the evidence of others based in interpretations of the survey of Mr O'Halloran, including that of Mr Smith; and

(h) in respect of my overall hesitancy in relying upon interpretations of surveys prepared by surveyors who were not called, I am conscious that Annexures 1 and 2 reveal four different surveyors to have reached four different conclusions as to where the relevant part of the boundary should fall as well as the fact that the 2001 survey and associated documents of Mr Barge are now said by both parties to have been in error (albeit that Mr Barge, also, has not been called).[260]

238 Moreover, in respect of a point of such potential significance, it is surprising - if not astounding - that in the end there were really only combinations of fragments of evidence relied upon in order to establish it.

239 In the end, I am unpersuaded that the 'lower red brick wall' was wholly built on the title to 6 Shandford Avenue. I am also unable to reach a conclusion concerning the extent to which the 'lower red brick wall' was built on either title.

240 For present purposes, I consider it appropriate simply to assume that the 'lower red brick wall' was to some degree constructed on and about the then prevailing boundary. It follows, however, that the present is not a case in which the principle spoken of by O'Bryan J in Walsh[261] is capable of any ready application.

241 As to the plans and other documents obtained by subpoena from the Council, those documents concern proposed 'additions' to the 'Givoni house' at 6 Shandford Avenue, as well as the construction of a swimming pool.[262]

242 The plans include the date 12 August 1976, refer to a 'proposed pool' and include a letter from the pool builder dated 8 November 1976 indicating that the pool had been constructed. The documents also include a handwritten letter from Mrs Givoni dated 21 April 1976 which refers to the proposed pool and states -

I wish to add that for safety reasons the high fence will fully enclose the pool making it inaccessible for anyone to enter the pool area except from inside the house.

We respectfully draw the Committee's attention to the fact that the proposed pool area does not border another residence but faces a foreshore reserve and for this reason we request your consideration for a modification of the building regulation boundary limits.[263]

243 The features of the evidence relating to the construction of the pool at 6 Shandford Avenue and what was described as the associated grid structure and terrace were given further significance and momentum via the opinion evidence of Mr Racovalis.

244 In that regard, Mr Racovalis referred, in part, to various photographs, a 3-D image, his own observations of and experiences with the structures at 6 Shandford Avenue as well as architectural plans seemingly dating back to 1958. As I have noted, in his oral evidence, Mr Racovalis observed, particularly, that -

(a) there had been DynaBolt connections into the 'lower red brick wall' on the side of 6 Shandford Avenue;[264]

(b) the render on the 'lower brick wall' had used 'the same technique' as that used on the house at 6 Shandford Avenue;[265]

(c) there was cement based mortar in the 'lower red brick wall';[266]

(d) there was a different colour in the mortar used in the 'lower red brick wall' as opposed to the 'high capped wall';[267]

(e) there had been light fittings in the 'lower red brick wall' at 6 Shandford Avenue;[268]

(f) there was in-ground concrete swimming pool at 6 Shandford Avenue;[269]

(g) there had been four red brick connections - or 'piers' - between the garden wall at 6 Shandford Avenue and the 'lower red brick wall';[270]

(h) the piers had the same red brick and same cement based mortar as the 'lower red brick wall';[271]

(i) indeed, 'the entire section' all had 'the same red brick';[272]

(j) viewed from a bricklaying perspective, the construction method was such that 'this area would have had to have been made ... or built at the same time';[273]

(k) there had been a red brick grid structure that was also 'the same brickwork' and 'same mortar';[274]

(l) the various structures 'needed to be constructed around the time period of the swimming pool', which Mr Racovalis thought to have been around the mid-1970s;[275]

(m) in his view, the grid structure and wall would have been built at the same time;[276] and

(n) there was also cement based mortar in the 'rear pier'.[277]

245 As to the overall construction, Mr Racovalis said -

... the best understanding that I can look at that is at construction time they would have built the boundary wall, the grid structure first, the pool would have been built secondary and right at the end of the project the rear fence would have been constructed.[278]

246 As I have earlier indicated, Mr Racovalis was essentially unshaken from these opinions during a searching cross examination; and I have already referred to my impressions of Mr Racovalis in oral evidence, which were favourable. Although his company had been retained by the plaintiff for the purposes of the renovations undertaken over several years at 6 Shandford Avenue, and he plainly found some of his interactions with Mr Hirsch to have been unpleasant, he did not present as an advocate for any particular position. It evidently gave him no joy to again be enmeshed in the controversy.

247 Several (but not all) aspects of the evidence of Mr Racovalis came to be confirmed in the evidence of Mr Smith, the counterpart expert retained on behalf of the first defendant. As I have noted, Mr Smith readily acknowledged his disadvantages, including the limits of his expertise and that some of his opinions were based his interpretation of photographs. However, Mr Smith was impressive in his oral evidence and, in summary, expressed opinions or conceded the view or possibility that -

(a) the garden bed wall on 6 Shandford Avenue was 'stiffened' by the connections made with the 'lower red brick wall' via 'spacers' (or, as Mr Racovalis had described them, 'piers'; albeit that Mr Smith disagreed with the appropriateness of the descriptive label);[279]

(b) red bricks from the 'spacers' had been 'mitred' into the 'lower red brick wall';[280]

(c) the 'spacers', garden brick wall and 'lower red brick wall' all appear to have been built at the same time;[281]

(d) the 'high capped wall' was likely built after the 'lower red brick wall' and 'privacy screen';[282]

(e) in that, 'split face concrete bricks' have been placed on top of 'a pre-existing wall' made of red bricks;[283]

(f) if you were building a wall from scratch it is unlikely that different materials and different mortars would be used in the same wall;[284]

(g) the jackhammering undertaken by Mr Racovalis in demolishing some of the structures concerned was consistent with cement based mortar having been used in the 'lower red brick wall' rather than 'lime mortar';[285]

(h) if that is accepted, that would support the view of Mr Racovalis that the 'lower brick wall' at 6 Shandford Avenue is 'different' to the portion of wall at 8 Shandford Avenue from which Mr Smith took his mortar sample;[286]

(i) in that regard, an alternative theory could be that a course of bricks was constructed to provide support to the concrete slab above the point at which Mr Smith took his mortar test at 8 Shandford Avenue;[287]

(j) it makes sense that the 'lower red brick wall', 'spacers' and grid structure were all built at the same time - in that regard, Mr Smith conceded that Mr Racovalis had the 'superior view', as he had 'built it' (in the sense of demolished several of the structures concerned and 'built' others on the site);[288] and

(k) construction of the 'lower red brick wall' and associated structures could have been in 1976.[289]

248 As I have noted, Mr Smith also ultimately, to some degree, accepted an important feature of the evidence of Mr Stansfield, namely that in section E and perhaps also in section D, there was a red brick wall comprising a 'single skin'. Mr Smith accepted that such a wall was there at least for the 'upper metre of it'.[290] In other words, at that point there were, at least to some extent, as Mr Stansfield put it, 'two separate walls'. On the other hand, Mr Stansfield seems to have considered the extent of the single 'separate' walls to be greater.

249 I have noted that 'two walls' theory was also evident in the written material of Mr Pearce,[291] although I am unable to place any significant weight upon that evidence as Mr Pearce was not called and so not able to be cross-examined.

250 In coming to or expressing their respective acceptance of the 'two walls' theory (albeit to differing extents), Mr Stansfield and Mr Smith each referred to photographs that appeared to support the proposition that there was some degree of separation. I might add that the proposition was also supported by the inspection of the relevant part of 'the fence' in the course of the view.[292]

251 For his part, Mr Smith also referred to particular architectural drawings, albeit that he also referred to such drawings as 'comics'. In any event, Mr Smith acknowledged that if there are 'two separate skins', that would support the view (shared by Mr Racovalis) that the 'lower red brick wall' was in place prior to 1980.[293]

252 The contrary proposition was sought to be advanced via argument concerning the form of the split face concrete bricks,[294] which did not seem to me to be a decisive point; as well as the fact that the evident integration of the split face concrete bricks and capping higher in the wall giving it the overall appearance of a double brick wall, at least in respect of the upper part of the wall.[295]

253 The first defendant also relied upon the evidence of Mr Hirsch's observations of the wall, but that was unreliable for reasons earlier noted.

254 The point was otherwise said to be supported by Messrs Barge and Sewell, although neither was called and it was not clear that either had been referred to all of the presently relevant details of the wall and associated structures prior to finalising their respective surveys.

255 Moreover, the written views of Mr Pearce referred to discussions with Mr Sewell. Those views might suggest that Mr Sewell was at one point not necessarily in disagreement with Mr Pearce concerning the presence of some degree of 'single brick walls'.[296] This tends to underline the difficulty presented by the fact that neither Mr Pearce nor Mr Sewell (nor Mr Barge nor Mr O'Halloran) were called and, consequently, the limited weight that can be placed upon an attempt to read, understand and interpret their written survey opinions and any associated observations untested by any process of giving oral evidence.

256 It is evident from the above that the evidence concerning the history and construction of 'the lower red brick wall' contained some irreconcilable features. In my view, much of the problem in that evidence - and, in turn, in making any positive findings concerning that particular question - arose from a combination of the effluxion of time and the perhaps related absence of any reliable witnesses who could speak to the events concerned at the time at which they occurred.

257 As earlier indicated, I do not regard any of Mr Hirsch's evidence concerning either the construction of the 'lower red brick wall' or the later construction of the garden terrace at 6 Shandford Avenue to be reliable. It was all simply too argumentative in tone and content and driven by his inflexible beliefs concerning his 'ownership' of 'the fence' for me to be satisfied that any of it was reliable; even if Mr Hirsch believes it to be true. That conclusion is fortified, in many respects, by the contrary evidence of Mr Racovalis and Mr Smith, to which I have referred and which I accept.

258 Nor do I consider the statutory declarations prepared in 2001 to require the contrary. I have already referred to the limitations in those documents. In my view, little weight can be afforded to them in respect of the building of the 'lower red brick wall'.

259 As to the O'Halloran survey, as I have noted, Mr O'Halloran was not called to explain it (and may, of course, not have been able to be called). I do, however, acknowledge the certification appearing on it. On the other hand, as Mr Stansfield noted, the O'Halloran survey does not include measurements of the parts of the fence there identified and no other documentary material decisively suggests that a 'post and rail and ti tree' fence was in place in and prior to 1980.

260 I acknowledge Ms Murkies' evidence concerning a 'ti tree fence', but I have noted that her evidence concerning those and other such matters was generally vague and did not refer to any 'post and rail' part or parts of 'the fence'. Even if there was a 'ti tree' part of 'the fence' prior to 1982/83, that does not mean that the 'lower red brick wall' was not then in place at sections D and E.

261 The O'Halloran survey was evidently pressed upon Mr Smith, and he referred to it in his report. However, in oral evidence he did not suggest that it required any view concerning the history of 'the fence' and associated structures different to that which he ultimately acknowledged.

262 In any event, in a case in which, after all, a central contention of both parties is that the survey of Mr Barge was incorrect - and, like Mr O'Halloran, Mr Barge has not been called to speak to his survey - it seems to me that it would be bold to cast aside my concerns about Mr Hirsch's evidence and the statutory declarations, my favourable impressions of Mr Racovalis and Mr Smith and the relevant parts of their evidence, and to nonetheless make findings based upon the otherwise incongruous content of the O'Halloran survey together with the view of Mr Stansfield that the O'Halloran survey depicts a wall different to the 'lower red brick wall'. In the circumstances, at least to that extent, it seems to me to be more likely that the O'Halloran survey is unreliable.

(a) it is possible that what has been referred to as the 'lower red brick wall' is not one monolithic structure;

(b) in that regard, it is possible that the red bricks viewed by Mr Smith under the concrete slab at 8 Shandford Avenue and from which he took his mortar test were built at a different time and with different mortar and do not strictly form a part of what was referred to at trial as the 'lower red brick wall';

(c) it may therefore also be possible - although there is no other evidence of it because of the unavailability of 'x-ray vision' and the practical impediment of otherwise needing to demolish the structures involved in order to establish the point - that there are other red brick portions or structures in and adjacent to the 'lower red brick wall' that were not built at the same time and in the manner of the part of the 'lower red brick wall' evident in the photographs taken from 6 Shandford Avenue;

(d) in any event, I accept that there are, to some extent, 'two separate walls' in 'the fence' in sections D and E;

(e) I also accept that the 'lower red brick wall' - at least that part of it viewed in the photographs taken from 6 Shandford Avenue - was very likely constructed at about the same time as the 'spacers', grid structure and pool at 6 Shandford Avenue;

(f) in the circumstances, I accept that those structures were built by the owners of 6 Shandford Avenue at that time, namely the Givonis;

(g) that is likely to have been in about 1976;

(h) I am otherwise unable to conclude precisely what the form of 'the fence' was likely to have been prior to 1982/83, although it is possible that some part of it included 'ti tree' fencing (perhaps in what is now known as sections B and C);

(i) the 'split face concrete bricks' of the 'high capped wall' were, to some extent, built over and around the 'lower red brick wall' in the course of the works undertaken by Mr Murkies in 1982/83;

(j) together, the 'lower red brick wall' and 'high capped wall', despite the extent to which there must be 'two single walls', comprise a structure that is integrated, at least to the extent that it is capped and completed in a form to give it the overall appearance of a 'double brick wall', as well as in its essential function as a fence dividing two suburban premises; and

(k) Mr Murkies also built the 'weld mesh fence' and 'privacy screen' in the course of his works in 1982/83.

264 Notwithstanding all of the above, there is, as I have noted, no evidence of any agreements between the relevant proprietors of 6 and 8 Shandford Avenue as to either an entitlement to possession or 'ownership' of all or any part of the structures concerned, or the effect of the construction of those structures (or any part of them) upon the title to part or all of the land underneath.

F The meetings in November 2017 and subsequent alterations to 'the fence'

265 As I have indicated, from the commencement of the renovation works at 6 Shandford Avenue in 2015, Mr Hirsch was agitated about the prospect of any interference with his property and, particularly, 'his fence'. Those concerns are woven through the subsequent correspondence passing between Mr Hirsch and Mr Racovalis.[297]

266 Seemingly in late 2016, the angled or 'cranked' section of the pickets of the 'privacy screen' were removed by Mr Racovalis,[298] and it seems generally to have been the intention of the plaintiff to undertake further works affecting 'the fence'.

267 By mid-2017, matters seem to have been coming to a head. In July 2017, Mr Hirsch was aware of the plaintiff's proposal to construct what became the 'masonry fence' in section B and seems to have demanded that a replacement 'privacy screen' be 'installed' in section D and perhaps E.[299]

268 Further, Mr Hirsch had refused to provide Mr Racovalis with a copy of Mr Barge's survey causing the plaintiff, via Mr Racovalis, to retain Mr Pearce to survey the boundary. As I have earlier noted, Mr Pearce formed a view different to that of Mr Barge.[300]

269 That, in turn, seems to have propelled Mr Hirsch initially to re-contact Mr Barge. He sought to engage Mr Barge 'to represent me and to survey any footings or walls ... to ensure that all works are on my neighbour's property, and NOT mine'.[301]

270 That retainer did not go ahead and, in September 2017, Mr Hirsch retained Mr Sewell (who was at that time at the same firm as Mr Barge).[302] By 15 September 2017, Mr Sewell had carried out a 'title re-establishment survey' and emailed Mr Hirsch a plan of survey. The covering email of Mr Sewell relevantly explained as follows -

Please find attached a copy of our Plan of Survey showing the relationship between title boundaries and occupation (existing fences). Please note a section of weld mesh, high brick and picket fences along the northern boundary [that] encroach into the neighbouring property by up to 0.12 metres. Given the age of occupation along the Northern Boundary (approximately 33 years) you have accrued possessory rights to the land being occupied.

We have noted a miscalculation in the original survey AP121181R along the Northern boundary and are in discussions with Land Victoria to rectify this. Upon registration of this amendment, your title will be in accordance with the occupation.

Please note if the neighbouring owners wish to build a new fence along the Northern boundary any new occupation must be erected in the same location as current occupation unless there is written agreement otherwise.[303]

271 Later, on 18 October 2017, Mr Sewell advised Mr Hirsch by email that it would not be possible to amend the boundary without making another application pursuant to s 99 of the Act. On 20 October 2017, Mr Sewell confirmed that he would start preparing 'the required documentation ... early next week'.[304]

272 Against that background, it seems to have come to be proposed that there would be a meeting between the neighbours and/or their representatives. The emails concerned do not expose Mr Hirsch's contemplation - evident in his dealings with Mr Sewell -of the prospect of a further application concerning the title boundary.

273 In any event, on 24 October 2017 Mr Racovalis and Mr Hirsch exchanged emails and apparently had in contemplation that at least they and the respective surveyors would attend a meeting. By 27 October 2017, it seems to have been settled that there would be a meeting on 2 November 2017 at 9:00am.[305]

274 In the proceeding, the meeting on 2 November 2017 at 9:00am emerged as significant by reason of the contention of the plaintiff that it gave rise to an agreement (and estoppel) arising between the parties to the effect that, at section B -

(a) the plaintiff would remove the 'weld mesh fence';

(b) the plaintiff would construct the 'masonry fence' on the title to 6 Shandford Avenue; and

(c) the boundary between 6 and 8 Shandford Avenue would otherwise fall be identified by reference to the then existing title boundary.[306]

275 The plaintiff also alleged the making of further agreements on that occasion in respect of the 'privacy screen' and the construction of the 'brush fence' tapered in section E.[307] The plaintiff contended that there had been agreement to affix the 'brush fence' to the 'lower red brick wall'.

276 For its part, on the pleadings, the first defendant articulated a version that made some admissions, but denied the central substance of the plaintiff's allegations concerning the boundary at section B.[308]

277 On the pleadings, there was a measure of disagreement concerning the attendees at the meeting, but that disagreement was not apparent in the relevant oral evidence. In substance, all relevant witnesses said there were six attendees: the plaintiff, Mr Racovalis, Mr Nicholson and Mr Pearce and, on the other hand, Mr Hirsch and Mr Sewell. I have already referred to the fact that Mr Sewell and Mr Pearce were not called.

278 For his part, Mr Hirsch said that the attendees were the plaintiff and 'three other men' (Messrs Racovalis, Pearce and Nicholson) as well as himself and Mr Sewell.[309] According to Mr Hirsch, there were no agreements made directly between him and the plaintiff. He says that there were no introductions; he dealt almost entirely with Mr Racovalis, and there was comparatively little in the way of agreement.

279 The suggestion did emerge that on 2 November 2017 Mr Hirsch had agreed that the 'weld mesh fence' could be removed and the 'masonry fence' built if it was on the land of 6 Shandford Avenue and that the 'privacy screen' could be removed. However, it was said that he had not agreed that what came to be the 'brush fence' could be affixed in the same way as the 'privacy screen', namely affixed into the 'lower red brick wall' at various points.

280 In this context, Mr Hirsch said that he had not wanted to 'get involved in surveying discussions' and that there had been a discussion between Mr Sewell and Mr Pearce. He also said that he 'was not going to agree to attaching anything to my wall'; he was 'dead against it'. He said the he had only noticed that there were such attachments 'recently ... maybe a couple of months ago'. After the meeting, he and Mr Sewell 'regrouped' at his house and discussed what came to be the 2017 Application.[310]

281 According to Mr Hirsch, several agreements were, in fact, later made between him and Mr Racovalis on 8 November 2017. He said that the meeting went for 'two and a half hours'. He referred to several steps in his handwriting on a proposed plan drawing.[311]

282 It was sought to be emphasised that the plan and the protection works notice were provided to Mr Hirsch by Mr Racovalis on 8 November 2017[312] and that the design for the 'brush fence' was not provided until 20 December 2017.[313]

283 There were also emails after 8 November 2017 between Mr Hirsch and Mr Racovalis relating to the removal of vegetation and the 'weld mesh fence' as well as in respect of the 'block material' proposed to be used in the 'masonry fence'.[314]

284 In broad terms, according to Mr Hirsch, the meeting on 2 November 2017 was 'the gloss-over meeting' and the meeting on 8 November 2017 was the 'far more involved meeting'. In that regard, in respect of section B, Mr Hirsch said that on 8 November 2017 -

We got down to actually positioning where the works would be carried out, where the boundary would be, how we would account for the boundary, and how we would work out where the boundary was. The boundary I insisted was to be the north face of the weld mesh fence. Mr Racovalis didn't dispute that.[315]

285 Mr Hirsch was cross-examined extensively concerning events at and relating to the meetings, aspects of which are referred to above at [136]-[137].

286 The evidence given by Mr Racovalis, the plaintiff and Mr Nicholson was quite different to that given by Mr Hirsch.

287 Mr Racovalis gave evidence that he had organised 'a meeting of all parties'. He said that -

... the reason for this was before works could commence on the boundary wall, Mr Hirsch and Mr Malone and all parties had to come to an agreement so that what we call is a protection work could be signed by Mr Hirsch so we could then - my building surveyor would issue a building permit, then works can commence. So the whole idea of having two land surveyors, a lawyer on site, myself, as a builder, was to then to discuss the works that were going to be undertaken, the stages of the works and where the alignments were going to line up the new works. So as part of the discussion - well, the front part of the fence was a wired mesh fence.[316]

288 As to the substance of the meeting, Mr Racovalis gave evidence that -

(a) as to section E, there was discussion between Mr Hirsch, the plaintiff and 'the two surveyors' about 'where the true boundary lies' and the only time Mr Racovalis became involved was in respect of the 'fixing method [for the brush fence] because that was going to alter what took place with the fence at that point';

(b) Mr Hirsch claimed that he 'owned' the 'lower red brick wall' and 'high capped wall' and 'under no circumstances were we to chip, render, drill or fix anything into that section E';

(c) Mr Racovalis said that he could not build the brush fence 'at one height' so 'we had to taper it' and that it would be connected into 'the fence' at the points at which the 'privacy screen' was already connected, which was agreed;

(d) Mr Hirsch claimed that the 'privacy screen belonged to him', which Mr Pearce 'totally disagreed with' and it was agreed that the 'privacy screen' and associated structural steel could be removed in order to build the 'brush fence' and all of the works to remove the 'privacy screen' were to be undertaken from 6 Shandford Avenue;

(e) Section C was 'a given' and Mr Pearce agreed that it was on the 'so-called boundary';

(f) the 'weld mesh fence' at section B 'wasn't in good condition' but Mr Hirsch did not want it removed 'because it encroached into No 6';

(g) there was discussion concerning the boundary at section B, and Mr Pearce put his business card between points where the boundary would be and made a line on 'the fence' with texta;

(h) 'Mr Hirsch, Mr Malone, agreed that that fence would be removed and that a new grey brick wall fence, block work fence, would be erected';

(i) Mr Malone agreed to 'pay the extra cost and match the brickwork of that fence [to the high capped wall]', which added 'about five and a half thousand dollars to the fence work';

(j) Mr Racovalis agreed 'to move the fence 25 millimetres in just for safety ... although Mr Malone wasn't happy with that, because he lost 25 millimetres of his property'; and

(k) there were 'some discussions that I didn't observe because I stood back for a portion of the meeting'.[317]

289 I should say that it did seem evident that Mr Racovalis recalled the 'pink string' being run between points at the fence line in section B during the meeting on 2 November 2017.[318] Mr Racovalis later recalled the 'pink string offset' occurring on 'two instances' - on 2 November 2017 and again on 8 November 2017.[319] The 'weld mesh fence' was removed by Mr Racovalis on 13 November 2017.[320] That was after he had a building permit.[321]

290 Mr Racovalis was taken to a series of later emails with Mr Hirsch, and also gave evidence concerning the subsequent meeting with Mr Hirsch on 8 November 2017. He said that meeting concerned the 'weld mesh fence', the trees next to that fence and the protection works notice (which Mr Hirsch signed).[322]

291 Cross-examination was directed to a range of matters, including credit and Mr Racovalis' opinions concerning the construction of 'the fence'.

292 As to the meeting on 2 November, Mr Racovalis confirmed its purpose.[323] Mr Hirsch's version of the discussion was put and Mr Racovalis said 'I don't agree'. He also said -

... the discussions/agreements on where things were to go wasn't to me - I don't own the property, that was - Ray Malone was involved in exactly pinpointing areas and the professionals who do boundary surveyance so the two surveyors had the agreement.[324]

293 In further questions it was suggested that there were a series of agreements in respect of section B, which Mr Racovalis confirmed.[325]

294 As to the pink string, Mr Racovalis disagreed that it was to be at the northern face of the 'weld mesh fence'. He said that it 'was to mark where the new fence would go'[326] and later said that it was 'put in after once the [weld mesh] fence was removed'.[327] Later still, he said that 'the pink string line was put exactly where the boundary line remained or close to it'.[328] He then confirmed that the string was 'offset from the face'.[329]

295 In respect of section E, Mr Racovalis confirmed that he had 'stepped away' from a discussion concerning 'the ownership rights' as there was 'no point me getting involved'.[330] Mr Hirsch's version of that part of the conversation was also put, to which Mr Racovalis ultimately exclaimed -

Wow. A person so precious about their fence did not want to be involved in it. Yes, he was there, he was there at the start, it got heated, the conversation a little. He may have stepped back to let the two surveyors sort it out but, he was involved in that discussion on the fence.[331]

296 In respect of the connection and tapering of the 'brush fence' and the removal of the 'privacy screen', Mr Racovalis was unshaken.[332]

297 In respect of other matters of substance, Mr Racovalis was also unshaken concerning the substance of the meeting on 8 November 2017.[333]

298 As to the evidence of the plaintiff, he said that the 'day was all about a resolution'.[334] The most important part of his evidence concerning the meeting was to the effect that it had been agreed with Mr Hirsch that the privacy screen could be removed, the brush fence could be built and pinned into the 'lower red brick wall', the brush fence could be tapered adjacent to section E of 'the fence', the rear pier could be rendered with a line of designation and the 'weld mesh fence' in section B would be removed and the masonry wall built on the plaintiff's land 'entirely ... if you agree not to change the title'.[335]

299 The last part is of particular importance. As to that, the plaintiff said that 'everyone was involved', albeit that Mr Racovalis 'was a little bit intimidated by Mr Hirsch so Angelo didn't want to deal with him, really'.[336] In that connection, the plaintiff said further that -

... there was a lot of talk about where the boundary was and what it was and where it had to be and Mr Hirsch basically said, "Well, I really don't care, it has to go here, you have no choice". I then said, "Well, it's not where the boundary is".[337]

300 Shortly thereafter, the plaintiff expanded as follows -

At that stage I said to Mr Hirsch that "if you" - I said, "I'll do what you want, I'll build it on my land entirely. I'll build it on to my land but I'm not prepared to change the title, so if you agree not to change the title, I'm happy to compromise to do" this, this and this. He was talking about his bricks for, on his side, what he had. I think between his house and No 10, I think he used the same block. So part of that agreement with him was that I paid for his blocks, so at quite a bit of expense to me and, you know, quite a bit of impost because Mr Hirsch hadn't been very pleasant to me, in my opinion, up to that stage, I then agreed with that and me and Mr Nicholson and Mr Hirsch were there.[338]

301 In referring to any 'change' to the 'title', I understood the plaintiff to be referring to the then registered title boundary in section B.

302 The plaintiff confirmed that he did not recall any pink string being erected during the meeting.[339]

303 The plaintiff's evidence concerning the meeting was challenged in various ways in cross-examination, including by reference to the sequence of pleadings, to which I have already referred.

304 The plaintiff conceded that he could not remember the exact sequence of discussions.[340] That said, he rejected the suggestion that Mr Hirsch had spoken only with Mr Racovalis.[341] The plaintiff also maintained that it had been agreed that in section B 'the title won't change'.[342] In respect of that part of the meeting, the plaintiff said 'a hundred percent it occurred'[343] and explained as follows -

I'd say you're totally wrong. I'm not mistaken at all and it was my compromise but it was also my panacea to all the problems and any future problems that I thought I might have because the boundary wasn't to change, so that's why I've agreed to all of these things because it's my land.[344]

305 The plaintiff said that that part of the meeting involved himself, Mr Hirsch and Mr Nicholson. Mr Pearce 'could have been in close'. He said that Mr Racovalis was not involved.[345] The plaintiff said that he did not know that at that point 'they [Mr Hirsch and Mr Sewell] were swearing up to make an amendment'.[346]

306 Later, as to the 'brush fence' and the later provision of the tapered design, the plaintiff said 'I thought we reached a resolution so they're just sorting it out, you know, finer points on mounting and things'.[347] As to the making of agreements, specifically in respect of the connection of the 'brush fence' to the 'lower red brick wall', the plaintiff said 'I'm the ultimate decision maker I did reach the agreements'.[348]

307 Finally, Mr Nicholson said that the plaintiff had told him that there were unresolved issues relating to 'the fence'. Mr Nicholson said that Mr Racovalis was distressed about his interactions with Mr Hirsch. There was not another solicitor at the meeting. Mr Nicholson stood back in order to listen. He did not take notes.

308 Mr Nicholson gave evidence that[349] -

(a) Mr Hirsch said that he 'owned the wall' and said that the plaintiff was not permitted to 'drill into it or attach anything';

(b) there were discussions between the plaintiff, Mr Racovalis and Mr Hirsch;

(c) on several occasions, the plaintiff said 'we've just go to get this resolved';

(d) Mr Hirsch accepted that what later became the 'brush fence' could be bolted into the 'very lower part' of the 'lower red brick wall';

(e) Mr Hirsch agreed to a tapering of what became the 'brush fence';

(f) Mr Hirsch agreed that the masonry fence could be built on the plaintiff's property on the basis that there would not be 'a change to the title to the boundary'; and

(g) in respect of that exchange, in particular -

Ray Malone and Mr Hirsch went up to the wire fence and starting discussing the wire fence. Mr Racovalis was involved in that conversation a little bit at the start and then he sort of backed away from the conversation. So I was probably 5 or 6 metres back watching mostly Ray Malone and Mr Hirsch discussing the wire fence, and the other members of the group, so Jeremy Pearce and Myles Sewell were back further behind me, they weren't really participating in that discussion, and Mr Malone said he wanted to build a masonry brick fence. I got the sense it wasn't the first time that it had been brought up but he said "This is what I want to do, I want to build a masonry brick fence in the place of the wire mesh fence." I could see the wire mesh fence, which having looked at it earlier wasn't in great repair and, you know, it was transparent, so it wasn't really a proper dividing wall for a residential property, and he wanted to build a masonry brick fence along that section and Ray said that he want to put it in place of the wire fence. Mr Hirsch said that he didn't want it there because it would damage his plants. The plants were leaning on the fence but he insisted that they couldn't be touched at all by the building of a fence. So there was some toing and froing on the topic, and then Ray said to Mr Hirsch that he would consider building the masonry brick fence on Ray's side of the wire mesh fence so that it wouldn't actually be in the same place as the wire mesh fence, it would actually be on Ray's property, and then they discussed that, and Ray said to Mr Hirsch - they talked about how far in and Mr Hirsch said that - I can't remember the exact measurements and it wasn't of great interest to me the measurements between them, but Mr Hirsch was advocating for a certain position and they discussed where it would be, and Ray said to Mr Hirsch, "I would put it on my property but, you know, on the basis I'm not going to have a change to the title to the boundary by putting it on my property, there is not to be a change." And Angelo then came back into the conversation and Mr Hirsch said that the wanted the bricks to be of a certain type or look, and Ray said, "Well, Angelo will come over and start talking about how we build the wall, the exact position, how we're going to going to build it", and Ray said, well, Mr Hirsch and Angelo were to discuss the minutiae of that, that Ray would pay for the wall and that they would discuss and exchange plans et cetera. And I sort of faded back after that, because it was more of a discussion about how the wall would be built ... .[350]

309 Mr Nicholson was cross-examined extensively and was unmoved.[351] In particular, he rejected the suggestions that there were no introductions and discussions only between Mr Hirsch and Mr Racovalis.[352] He confirmed that he could hear everything 'very clearly'.[353] When it was suggested that his evidence was 'coloured by information that you obtained subsequent to that meeting', Mr Nicholson said 'no, I'm giving you an account of what I recall'.[354]

310 In the course of the cross-examination of Mr Nicholson there was an endeavour to draw him upon whether he had been mindful of issues of adverse possession.[355] He confirmed that he did not have that in mind at the time and I accept that evidence.

311 As with the plaintiff, I understood the substance of Mr Nicholson's evidence to be that the plaintiff and Mr Hirsch agreed that in consideration of the various steps relating to the 'masonry fence', most particularly building it on the plaintiff's title and in concrete brick suitable to Mr Hirsch and at the expense of the plaintiff, the presently registered title boundary in section B would not alter.

312 Subsequent to the meetings on 2 and 8 November 2017 -

(a) as I have noted, the 'weld mesh fence' was removed by Mr Racovalis on 13 November 2017;

(b) the 'privacy screen' was removed by Mr Racovalis and the 'brush fence' was built;

(c) the 'brush fence' was tapered adjacent to section E and affixed to the 'lower red brick wall' at the points at which the 'privacy screen' had been affixed; and

(d) the 'masonry fence' was built, including using concrete bricks on the side facing 8 Shandford Avenue.

313 I have earlier referred to my assessment of Mr Hirsch as a witness. On that basis alone, his evidence concerning the contentious matters relating to the meetings on 2 and 8 November 2017 cannot be accepted.

314 More specifically, however, I considered his account of those meetings to be quite improbable.

315 There seems to be little doubt that in mid to late 2017 matters concerning 'the fence' were coming to a head and that Mr Hirsch knew that it was proposed that certain existing structures in 'his wall' would be affected, removed or replaced.

316 Indeed, that appears to have been in contemplation in his correspondence with Mr Barge in August 2017. In that context, he arranged for Mr Sewell to conduct a full survey of the boundary and to attend the meeting on 2 November 2017. He had a further s 99 application in contemplation. He also knew that Mr Racovalis and a surveyor would be attending the meeting.

317 For those reasons, it had to have been within Mr Hirsch's contemplation that there would be discussions and competing claims made at the meeting concerning the boundary between the properties when discussing the works proposed. It can also hardly have been surprising that the plaintiff would be present at the meeting.

318 In this context, I cannot accept Mr Hirsch's evidence that no introductions were made at the meeting, particularly as he said that he did not know some of the attendees. Mr Hirsch did not strike me as the kind of person who would not wish to understand who was present and what role that they might play at a meeting that could affect interests in which he took such a personal and keen interest.

319 I also cannot accept that all relevant conversations took place only between Mr Hirsch and Mr Racovalis. That seems to me to be highly unlikely having regard to the purpose of the meeting and what was likely to and apparently did unfold. In that regard, while there might have been a discussion between Mr Pearce and Mr Sewell concerning 'surveying issues', the idea that Mr Hirsch would not seek to involve himself in something of that kind - at least to some degree and in order to satisfy that his interests were not in any way being prejudiced - seems to me to be fanciful.

320 Specifically, I do not accept Mr Hirsch's evidence to the effect that the meeting on 2 November 2017 was merely a 'gloss over meeting' and that the meeting with Mr Racovalis on 8 November 2017 was 'more involved'. The idea that Mr Racovalis - a builder - would readily be making a concession concerning the title boundary in the absence of the owner of 6 Shandford Avenue seems to me to be highly improbable. In that regard, to the extent that Mr Hirsch's version of events was put to Mr Racovalis, it tended to be greeted with weary but nonetheless striking tones of disbelief, albeit that in one particular instance Mr Racovalis' response was more in the nature of utter amazement.[356]

321 In respect to the 2 November 2017 meeting, I do not consider the fact that Mr Hirsch had earlier received a survey from Mr Sewell and had a further s 99 application in contemplation to stand against the suggestion that he would nonetheless agree with the plaintiff that the title boundary in section B could remain unchanged. That Mr Hirsch would make such an agreement and thereby achieve what he might be thought primarily to have been interested to obtain (namely, the building of the masonry wall entirely on the title to 6 Shandford Avenue[357] and, on his side, for it to be built in concrete bricks suitable to him, and all entirely at the plaintiff's expense) and then act shortly thereafter in a manner that could diminish or displace the bargain obtained by the plaintiff does not come as any surprise or seem to me to be out of keeping with his actions in connection with the dispute. In that regard, I note Mr Hirsch's evidence concerning his 'ambit claim' concerning the 'brush fence' in circumstances where he had no entitlement to that to which he was claiming and, in evidence, ultimately acknowledged as much.[358]

322 I have not overlooked the documents referred to by Mr Hirsch in his evidence. None of those documents compels an acceptance of Mr Hirsch's version of events. Indeed, Mr Racovalis' email to Mr Hirsch dated 9 April 2018 seems to me to be much more in keeping with his version of events than that of Mr Hirsch. In particular, it refers to 'your agreement with Ray'.[359]

323 I note that Mr Hirsch did not respond to that email. I do not accept the explanation sought to be advanced by Mr Hirsch in response.[360]

324 It does not, however, necessarily follow from my rejection of the evidence of Mr Hirsch that I must accept the evidence led on behalf of the plaintiff directed to the alleged agreement concerning the maintenance of the 'title boundary' at section B. That depends upon an assessment of the evidence of Mr Racovalis, the plaintiff and Mr Nicholson.

325 All three witnesses gave evidence of agreements in the course of the meeting on 2 November 2017. As I have earlier noted, Mr Racovalis did give evidence of agreements in respect to other parts and aspects of 'the fence' and 'privacy screen', but did not give evidence concerning any agreement between the plaintiff and Mr Hirsch to leave the title boundary as it was in section B.

326 As I have also earlier noted, Mr Racovalis impressed me as seeking to give evidence truthfully. However, it does not necessarily follow that all aspects of his evidence concerning the meetings on 2 and 8 November 2017 were either easy to understand or must be accepted. A particular example of that is his rather confused evidence concerning whether, when and why the 'pink string' was erected.

327 It does not follow, however, that the contention of the first defendant that Mr Racovalis did not give evidence of specific agreement concerning the title boundary at section B means that no such agreement was made. Mr Racovalis is a builder and plainly some things at the meeting were of more significance to him than others. It is also evident that he was not pressing to be at the front line of dealings with Mr Hirsch.

328 In that connection, both the plaintiff and Mr Nicholson gave evidence that Mr Racovalis had not been involved during part of the discussions relating to section B. I accept that evidence.

329 I have earlier identified my concerns relating to the manner in which the plaintiff gave some of his evidence. That said, his evidence concerning the agreement relating to the title boundary in section B was clear enough and his response when challenged in cross-examination tended to support the likely truth of that evidence. It seemed understandable, as the plaintiff explained it, that being mindful of the difficulties that could be caused by Mr Hirsch, and the concessions that the plaintiff was making in agreeing to build the 'masonry fence' (on his title, in materials relevantly suitable to Mr Hirsch and at the plaintiff's cost), that he would seek to end the potential for further dispute with Mr Hirsch in connection with that part of the boundary. That would be the effect of an agreement that the title boundary would not be moved and I accept the plaintiff's evidence that he proposed the terms and that Mr Hirsch accepted them.

330 If I had been in any doubt concerning the making of the agreement contended for, that was dispelled by the evidence of Mr Nicholson. As I have indicated, Mr Nicholson's evidence was clear and cogent. As a solicitor, and in the particular circumstances, he would be expected to recall mention of the 'title boundary' and any agreement relating to it. In that regard, his evidence was clear: the agreement was made. I accept his evidence.

331 It follows that on 2 November 2017 the parties agreed that in consideration of the building by the plaintiff of the 'masonry fence' on the title of 6 Shandford Avenue comprising concrete bricks on the 8 Shandford Avenue side for which the plaintiff would pay there would be no alteration to the registered title boundary between the neighbours in section B.

332 In reaching this conclusion I have taken account of the submission of the first defendant to the effect that there was some degree of ambiguity and variance in the details of the accounts of the plaintiff, Mr Racovalis and Mr Nicholson concerning the meeting on 2 November 2017.[361] That 'ambiguity' and variance will be obvious in my recitation of their evidence. It did not strike me as surprising that there would be a degree of ambiguity and variance in some of the evidence concerning a meeting that, after all, took place on a building site in 2016. In any event, such ambiguity and variance as was evident was not ultimately of a degree that concerned me such as to reject the evidence to the effect that such an agreement was made.

333 It follows, in my view, that, subject to consideration below of the various contentions concerning 'bona fide possession', 'ownership' and adverse possession, to the extent that the first defendant now seeks an alteration of the presently registered title boundary at section B, that claim should not be accepted.

334 In that regard, the plaintiff addressed the issue as one of estoppel; whereas, the first defendant addressed it as one of 'agreement'.[362] In my view, in practical terms, there is presently little difference between the two, as I have found that the plaintiff and first defendant agreed that no such alteration would be made. If such an agreement was found, I did not understand the first defendant to contend that such a consequence should not follow.

G The claims to 'bona fide occupation' and adverse possession

335 In submissions, the plaintiff and first defendant each claimed to have 'possessed', 'owned' and been in 'bona fide occupation' of parts of 'the fence'.

336 In that regard, each ultimately called in aid the doctrine of adverse possession in connection with the relevant provisions of the Act and the Limitation of Actions Act 1958 (Vic) in seeking to make good their respective claims to parts of the 'disputed land' via, among other things, the opinion evidence of their favoured surveyor or surveyors.

337 As I have earlier noted, adverse possession may be established by reference to two elements: (1) intention to possess, and (2) factual possession of the land concerned, for a period of 15 years or more.

338 Several relevant principles were stated or adopted by the Court of Appeal in Whittlesea City Council v Abbatangelo.[363] Those observations, in full, speak for themselves. However, relevant to the present context, the following should be highlighted -

(a) in the absence of evidence to the contrary, the owner of land with the 'paper title'[364] is deemed to be in possession;

(b) 'factual possession' means an 'appropriate' degree of 'exclusive' physical control;

(c) whether 'factual possession' is established depends upon 'the particular circumstances', although, broadly, the 'alleged possessor' must show that he or she or it (and/or a predecessor) has been dealing with the land 'as an occupying owner might have been expected to deal with it and that no-one else has done so';

(d) in that regard, 'while previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies';

(e) 'mere use falling short of possession will not suffice';

(f) the 'intention' - which must be 'clear and affirmative' as opposed to 'equivocal' - must be to 'exercise exclusive control', which involves excluding 'the world at large, including the owner with the paper title';

(g) the 'intention' must be to possess the land, not to own or even to acquire ownership of the land;

(h) statements about 'intention' should be treated cautiously;

(i) 'ordinarily ... enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner'; and

(j) 'probably', once the limitation period has expired, the interest of the adverse possessor or person claiming through him, her or it cannot be abandoned.

339 In the present case, both parties referred to Abbatangelo and neither sought to contend that any of the principles there stated were in error.

340 I am, of course, conscious that proof of the two elements identified above is often related; in particular, an 'intention to possess' is often inferred from the 'acts of possession'.[365]

341 I am also conscious that, as noted above, real caution must be exercised in considering factual similarities in other cases. Nonetheless, some aspects of other cases, including those referred to by the present parties, are helpful in considering the overall application of the doctrine. That seems to me particularly to be so in respect of the proposition - noted in Abbatangelo - that 'enclosure' is the most 'cogent evidence' of adverse possession. In the present case, that proposition was emphasised in argument by both counsel.

342 In Abbatangelo, the Court of Appeal considered the 'boundary fencing' in respect of the land there disputed and noted that it was on the 'title boundaries' save for the 'southern fence' which was 'misaligned from the title boundary by about half a metre'. Part of the dispute concerned the fencing on the southern and eastern boundaries.[366]

343 The respondent had evidence of various 'uses' of the disputed land, including running livestock and allowing children to play on it. In that context, five neighbours had given uncontested evidence that 'they had assumed that the land was owned by the respondent'.[367]

344 The trial judge had found both that the respondent had used the disputed land 'as if it were part of the integrated whole of the properties for the use, enjoyment and activities of the family' and, in respect of the fence on the southern boundary, found that it had been put there by the Abbatangelo family and that the existence of the fence 'would ordinarily convey' the 'signal' that the land 'behind it had been enclosed by someone from everyone else' [emphasis added].[368]

345 The Court of Appeal did not disturb the decision of the trial judge, who had found that the appellant's title had been extinguished by the respondent's acts of adverse possession. Indeed, the Court of Appeal considered the decision to have been correct.[369] In that regard, the Court referred, among other things, to the respondent's acts of maintenance of the southern boundary fence as well as the evidence of the neighbours' assumptions. The latter was considered to be 'capable of bearing upon proof of an assumption of exclusive possession of the land'.[370]

346 As to fences and the question of intention to possess, in particular, the Court of Appeal referred to the submission of the appellant that the evidence of restoration, construction and maintenance of fences had been for a purpose other than excluding the 'paper owner'. In that regard, the Court of Appeal stated -

These submissions proceeded on the misconceived premise that a person who desires to possess land exclusively builds and maintains fences on the land solely for the purpose of keeping others out. Plainly, fences serve multiple purposes. Some delineate title boundaries. Others are internal. Some are ornate. Others are minimalist and purely functional. The nature and purpose of a fence will be affected by the nature, location and characteristics of the land and the uses to which it is put.[371]

347 The treatment of the applicable principles and relevant evidence by the Court of Appeal in Abbatengelo is given further context when regard is had to prior and subsequent cases.

348 Riley v Penttila[372] concerned a portion of a 'common area' known as 'Outlook Park Reserve'. The evidence showed the Reserve to have been used over many years by adjoining neighbours. The plaintiffs sought declarations and injunctions to protect their 'rights' in respect of a claimed easement in respect of the Reserve and particularly a 'disputed area' of it. A previous owner had built an asphalt tennis court and erected a fence around the disputed area. However, the previous owner had invited one previous neighbour to use the area and other neighbours had 'probably' also used it. For their part, the defendants, who had later purchased from the said previous owner, claimed that they were entitled to be registered as the proprietors of the 'disputed area' by reason of adverse possession.

349 In respect of the question of possession, Gillard J confirmed that the particular circumstances of each case must be considered. In that regard, his Honour referred to -

The character and value of the property, the suitable and natural mode of using it, having regard to all the circumstances, and the course of conduct which a proprietor might reasonably be expected to follow with due regard to his own interests, varying as they will from case to case, must be taken into account.[373]

350 His Honour also stated that where possession or dispossession of land is to be inferred from equivocal acts, the intention with which the acts have been performed is 'all important' and that acts of user which do not interfere with the purpose of the owner 'do not amount to a dispossession'.[374] In that regard, acts of user may indicate an intention merely to produce a special benefit to the person doing it rather than an intention to exclude the true owner. His Honour also there directed attention to the relevance of both the rights of enjoyment conferred upon all of the neighbours as well as the 'observable indicia of actual possession of the claimants and dispossession of the true owners'.[375]

351 In the circumstances of the case, however, his Honour considered the actions of all of those involved ultimately to have been equivocal. The evidence suggested that the previous owner had been seeking to develop the tennis court for 'specified communal recreation' and the actions of others involved were equally consistent with the rights enjoyed in respect of the entire Reserve. In that, his Honour considered that the 'typical convenience' of high wire netting fences for those using and playing on a tennis court did not 'necessarily evince any intention or evidence of a fact to exclude the true owner from the area'. Consequently, his Honour did not consider the previous owner to have been doing any more than exploiting the original privilege granted. [376]

352 The defendant, however, submitted that a few features, including the fencing and lamp posts, had made it 'patent for all to see that the disputed area was enclosed'. His Honour considered matters such as the lamp posts to add 'very little' and otherwise emphasised that which had been transferred to the defendants by the contract of sale, which included an easement to enjoy the Reserve including the disputed area that, by that point, also included a garden. Ultimately, his Honour concluded that -

Having regard to the circumstances under which the enclosure was made by Pizzey [the said previous owner] and the reasons for it, and because of the nature of the rights granted to the defendants and their predecessors in title of lot 36, and of the continuous user of the area for recreation as a tennis court and as a garden, which were the subjects of the easement, it seemed to me that a very clear case must be made out to establish actual legal possession by the residents of lot 36 to the disputed area adverse to the landowner so long as the disputed area appeared to be used for the purposes of the easement. No such clear case has been made out by the defendants.[377]

353 Malter v Procopets[378] was relied upon by the first defendant and, like the present case, concerned a small strip of 'disputed land' between two suburban properties. It appears that the land concerned was not under the dividing fence, rather than enclosed within the land of the appellant by that fence. In that regard, Brooking JA (with whom the other members of the Court of Appeal agreed) stated -

The offending fence was maintained in position and the appellants used the area that had been wrongly enclosed and manifested an intention to exclude all the world from it. In fact, they were ignorant of the encroachment and believed themselves to be the owners of the land on their side of the fence. This does not prevent their possession from being adverse; if anything, it reinforces their claim to have the necessary intention.[379]

354 The respondent conceded that the appellants had been in 'actual possession' of the land. The appeal ultimately turned upon, in effect, whether intention to possess could be inferred from the circumstances, and it will be evident that the Court of Appeal essentially so concluded and allowed the appeal.

355 Bayport Industries Pty Ltd v Watson[380] concerned a claim by the plaintiff to adverse possession of a strip of land defined by what was described as the 'north/south fence' that had existed between 1968 and 1983. That fence - which had been made of 'post and wire' - stood '11.5 metres to the west of the true boundary'.[381]

356 Ashley J observed that the 'north/south fence' could have 'conveyed the impression' of being a 'boundary fence' and that there was no other fence 'which could have conveyed that impression at any pertinent time'.[382] Later, his Honour stated many of the propositions concerning the doctrine of adverse possession that came later to be re-stated and effectively adopted in Abbatangelo.

357 In any event, the plaintiff pointed to the 'north/south fence' as having 'enclosed' the land concerned, which, it was emphasised, was 'strong evidence of adverse possession'. That said, the land concerned had not been 'actively used' at any relevant time.

358 His Honour, however, considered that the fence, which was 'an internal fence, for farming purposes', could not be assumed to follow a title boundary. Further, his Honour emphasised that no evidence had been led from the plaintiff's predecessors concerning matters such as whether they had known 'the true situation' and simply been content to 'let the fence stand as a practical barrier but without any assertion thereby of possession of the presently disputed land'. In the circumstances, his Honour did not consider the claim to factual possession to be made out and stated -

In a practical sense, the fence constituted a barrier useful for the occupiers of Lot 2 land. But that says nothing about possession or intention to possess on the part of the plaintiff's predecessors.[383]

359 Like the present case, Cervi v Letcher[384] also concerned a dispute between suburban neighbours. The defendant had enjoyed rights over a driveway - by way of carriageway easement - but claimed to be entitled to it by adverse possession. There was fencing and gates. A survey had shown the title boundaries not to correlate with the buildings and fences at the site. The procedural history also had some similarities with the present case.

360 John Dixon J referred to the applicable principles, including those relevantly identified in Abbatangelo, and considered the issue of factual possession with reference to -

...all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available, and the course of conduct which a paper owner might be expected to follow.[385]

361 Upon consideration of the fencing and gates, in particular, together with the other relevant evidence, his Honour concluded that the defendant had 'exercised a sufficient degree of exclusive physical control over the driveway to be considered in factual possession'.[386] That said, his Honour did not accept the claim to adverse possession, as the defendant had only formed the intention to exclude his neighbour more recently and so time had not commenced to run until that point.[387]

362 His Honour also found that notwithstanding the enclosure of the land by the defendant, his intention to exclude 'the true owner' had been 'equivocal'.[388] In that connection, his Honour was ultimately not satisfied that -

...the defendant has established that he ever intended to do more than exercise, in a complete effectual and unrestricted way, his right of access. Having never formed an intention to possess the land exclusively, including the exclusion of the owner of the servient tenement, time did not commence to run when factual possession might be thought to have commenced more than 15 years ago.[389]

363 Finally, Bottos v CityLink Melbourne Ltd[390] concerned a noise wall that had been constructed across the back of the plaintiffs' suburban property in 1999. The purpose of the noise wall - which was a 'massive structure'[391] comprised of panels, concrete and steel - seems to have been to absorb or block the noise of the Tullamarine Freeway abutting the property. The panels were on the defendant's land, but the steel poles and their foundations extended into the plaintiffs' land.

364 Other issues arose in the case, but the defendant claimed to have adversely possessed the land on which the poles and foundations had encroached. Part of the claim also related to an underground 'spillage' of concrete associated with one of the poles for the noise wall. The case was particularly relied upon by counsel for the first defendant, and includes several passages of significance to the present case.

In my view, by building the noise wall, CityLink factually possessed, and factually dispossessed the Bottos brothers of, the space physically occupied by the noise wall and its support structures. CityLink used the land occupied by the structure as if it were its own. This is not a case where the area under consideration was an open area upon which different people might wander, such as a field, or a piece of open land. It was a space actually, physically occupied by a solid structure. It is analogous, perhaps, to a piece of land enclosed by an impenetrable fence, which would effectively compel a finding of factual possession: "enclosure is the strongest possible evidence of adverse possession".[392]

366 His Honour thereafter considered the question of the possession of 'space' above and below the surface of the land, which his Honour considered 'may be in concept divided'. In that discussion, his Honour described such 'underground land' as comprising a 'cubical space'.[393]

367 As to possession, his Honour also considered that CityLink had the 'necessary intention to possess'. In that connection, his Honour stated -

In my view, the situation where the land under consideration is the space occupied by an actual physical structure is different to the situation where the land under consideration is an open piece of land. In the latter situation, a question may arise as to whether the use of that piece of land amounts to, and is intended to amount to, taking possession of that piece of land and dispossession of any paper titleholder. For example, using a piece of land to grow vegetables or to support livestock or as part of a garden, or even placing a fence around the perimeter of a piece of land, could, depending on the circumstances, be use of the land that is consistent with ongoing use also by the paper titleholder and thus might not amount to a dispossession of the paper titleholder. This is where the requirement that there be an "intention to possess" comes into play as part of an evaluation of whether the use amounts to the taking of possession by the user and associated dispossession of the paper titleholder, or a use short of the taking of possession. However, the actual and deliberate physical occupation of space by a bulk structure that is intended to be a permanent presence thereafter, in my view, not only effects an actual dispossession of others from that space, but would ordinarily carry with it the necessary associated intention to exclude others from that space. In my view, CityLink self-evidently did intend to possess, to the exclusion of others, the space physically occupied by the noise wall, both above and below the ground.[394]

368 As to the 'spillage', however, his Honour concluded -

In these circumstances, I do not consider that CityLink took possession of the space occupied by the spillage insofar as the concept of possession is understood for the purposes of the Limitations Act. This accidental extrusion, unlike the intended permanent underground foundations necessary to support the fence, did not unequivocally carry with it the necessary intention to exclude others from the space it occupied. It was not an act claiming or assuming ownership of the land occupied. It was not laid with the intention that it remain there for the benefit of CityLink. Rather, the extrusion of the spillage was consistent with an intention to occupy that part of the land until it was needed by the true owner (at which time it would be removed), rather than an intention to possess that part of the land and thereafter to exclude all others. It was laid by mistake, and I am not prepared to conclude that there was any intention attributable to CityLink other than to remove it, if asked, as in fact (and quite properly) occurred. The extrusion was at best equivocal, and where the entry is equivocal in the sense that it does not by itself betoken an intention to claim the land, there must be some other evidence to establish the necessary intention.[395]

369 As the reasoning in these cases tends to demonstrate, the impressions formed and conclusions ultimately reached concerning each of the elements of the doctrine of adverse possession (as well as the consequential application of the relevant provisions of the Act and the Limitation of Actions Act 1958 (Vic)) tend to influence the determination of one another.

370 Further, while 'enclosure' is often said to be an important 'factor', the decided cases repeatedly demonstrate that it is not necessarily a determinative one (particularly, Riley, Bayport and Bottos).

371 In addition, while Malter might be considered to be a relatively orthodox example of 'enclosure', none of the cases to which I have referred seem to have involved a claim to land underneath a suburban fence dividing neighbours. Bottos is, perhaps, the closest analogy, but the circumstances in that case - which involved a 'bulk' and relevantly undifferentiated structure built at the one time and by one party - seem to me to be quite different to the present.

372 Notwithstanding all of the above, the cases repeatedly make the point that all of the circumstances are of importance. In that connection, the authorities emphasise the nature and purpose of the land and any particular fence. As is evident in Bottos, the course of conduct which the holder of a 'paper title' might be expected to follow may also be of relevance.

373 In light of the above, when the 'lower red brick wall' was constructed by the Givonis in the 1970s -

(a) the precise intentions of the Givonis and, for that matter, the predecessor to the Murkies family, are unknown;

(b) the precise position of the title boundary relative to the 'lower red brick wall' is unknown, although, as earlier noted, I have assumed that the wall was to some degree constructed on and about the then prevailing boundary; and

(c) the precise form of the balance of the boundary fence at that time is unknown, although some part of it may have comprised a 'ti tree fence'.

374 That necessarily focuses attention upon what, if anything, can be concluded from the building of the 'lower red brick wall' by the Givonis.

375 As to 'ownership' of the underlying land (prior to 2001), for reasons earlier expressed, it seems to me to be an elusive and ultimately neutral factor. It is not really possible to draw any firm conclusions from what, after all, is ultimately only an assumption made by me in light of the lack of any reliable precision in the evidence.

376 As to the 'lower red brick wall' itself, it was plainly sturdy and divided the properties, albeit for only a portion of the boundary. In that sense, it functioned as a conventional fence dividing suburban neighbours and afforded that benefit to both of them.

377 There is no evidence at that time of any use of the 'lower red brick wall' by the then proprietors of 8 Shandford Avenue beyond its function as a sturdy dividing fence covering a portion of the boundary. It may also have had an aesthetic benefit, although that may also have been a mutual benefit.

378 From the perspective of the Givonis, however, there was additional utility in the 'lower red brick wall', in that, at least -

(a) it functioned as a support to the grid structure at 6 Shandford Avenue, via the 'spacers' or 'piers';

(b) it was rendered in the same manner as the house at 6 Shandford Avenue; and

(c) pool lights were installed into it and facing into 6 Shandford Avenue.

379 Mr Racovalis was of the view that the 'lower red brick wall' was supported by the grid structure via the 'spacers' or 'piers'. Mr Smith gave contrary evidence and I accept it. Albeit that he had not inspected the structure from 6 Shandford Avenue, he had inspected the other side, is an engineer, was impressive in his evidence and otherwise readily made concessions; he maintained that the 'lower brick wall' at 6 Shandford Avenue had not been supported by the grid structure.

380 In any event, it is plain that from the perspective of the Givonis the 'lower red brick wall' was constructed to and did have uses that gave it a significance beyond merely dividing the neighbours.

381 That is indicative of a degree of use by the Givonis of portions of the wall in connection with the structures and uses to which I have referred. There is, however, no compelling evidence that such use was of the 'whole' of the wall or that it was necessarily an 'exclusive' use of the whole of the wall. In particular, there is no evidence of the Givonis 'using' the 'other side' of the 'lower red brick wall' (then, presumably, facing into 8 Shandford Avenue), other than perhaps as a support to their own side of the wall (which, of course, was another mutual benefit).

382 There is also no evidence of any control, monitoring or policing by the Givonis of any part of the 'lower red brick wall', especially the 'other side' of it. Indeed, it is not obvious how policing of the 'other side' of such a fence could or would have occurred.

383 In light of the circumstances to which I have referred, it is not clear that merely by building the 'lower red brick wall' the Givonis must be taken to have been assuming exclusive possession of the whole of it and, thereby, the whole of the land underneath or above it.

384 If anything, the evidence would tend to suggest that the building of a sturdy brick wall in that spot was more likely to have been a shared resource available to both neighbours. Both took the benefit of the division which it effected, but also had the availability of such a sturdy wall for other potential uses should that be necessary. Prior to 1982, the actual use of the 'lower brick wall' in such manner had only occurred at 6 Shandford Avenue, but that was not to say that it could not later be so used by the proprietors of 8 Shandford Avenue.

385 In light of the above, it seems to me to be unlikely that the mere building of the 'lower red brick wall' and its actual use on 6 Shandford Avenue in the manner that I have described amounted to exclusive possession of the whole of the 'lower red brick wall' by the Givonis or any endeavour by them to affect the location of the boundary. I am also not satisfied that it, in fact, did any of those things: among other things, the wall was much wider than the boundary, it had benefits and potential uses for both neighbours and, in any event, it covered less than half of the fence line.

386 In this context, I am also conscious of the following evidence that emerged in the course of the trial -

(a) Mr Stansfield gave evidence that the work of a surveyor includes the following -

We look at the age of the fencing. We look at the type of the fencing. We look at where the fencing is defined as the boundary. I mean, for instance, a paling fence, the boundary is where the palings meet the rail. There's Crown boundaries involved. There's a lot of decisions that need to be made in relation to people's properties.[396]

(b) in that regard, perhaps, Mr Hirsch gave evidence that Mr Sewell had drawn the boundary 'through the middle' of the 'lower red brick wall' in section D in reliance upon a 'custom' that where there is a 'wooden rail' the boundary is claimed at the 'mid-point';[397]

(c) Mr Racovalis gave evidence that -

Builders never build on a true and exact boundary. We always bring that in at least 20 millimetres to be safe.[398]

(d) Mr Racovalis also gave evidence that it was a 'normal practice' to raise the boundary between parties prior to (or perhaps in) discussion of a proposed fence line;[399]

(e) the plaintiff confirmed that until the present dispute broke out, he thought 'the fences were shared and that they were more or less on where the title boundary was, or something like that';[400]

(f) Mr Smith described the 'lower red brick wall' as 'shared', albeit that was his assumption and, as he said, 'it is up to you guys';[401]

(g) Mr Smith also confirmed that it was common for boundary walls to rely upon one another;[402] and

(h) Mr Circosta gave evidence that -

What's important and should be considered is the intention of when that brick wall was built and what was its purpose, was it shared, or was it exclusively built by a particular owner, and if the latter is true, then possessor's rights may apply.[403]

387 The combination of evidence to which I have referred demonstrates that -

(a) it is not unknown for the purpose of a fence to be 'shared' - that was a position contemplated by Mr Smith and Mr Circosta, as well as an assumption that had been made by the plaintiff;

(b) it is not possible, at least in the present circumstances, to make any ready or reflexive assumption that the building of a sturdy brick fence by one party must lead to the conclusion that the whole or any particular part of the land underneath or above it is thereby 'possessed' or 'owned' by that party;[404] and

(c) in particular, such a fence having been built, it is not possible to simply conclude that the boundary line and limit of factual possession as between the neighbours ought thereafter be taken to be on the outer edge of that which has been constructed.

388 It follows from the evidence and circumstances to which I have referred that it is likely that there was some form of discussion if not understanding between the Givonis and the predecessor to the Murkies. The precise terms of any such arrangement are unknown, but the circumstances to which I have referred do not suggest that it was likely that by merely building the 'lower red brick wall' the Givonis were either taking possession of all of the land that it might cover or thereby dispossessing their neighbour of any part of the land then on the title to 8 Shandford Avenue.

389 In that sense, as an evidently shared resource, I consider that the building of the 'lower red brick wall' was likely not directed to affecting the position of the then prevailing title boundary. Nor, as I have indicated, do I accept that the Givonis had exclusive possession of the whole of the 'lower red brick wall' merely because they built it or even because they must have been using it in the ways earlier identified.

390 These views are, if anything, confirmed when consideration is given to the events that unfolded in and shortly after 1980.

391 The contract of sale by which the Murkies' purchased 8 Shandford Avenue is dated 6 December 1980.[405] The O'Halloran survey was found in Mr Murkies' files, together with the contract of sale.[406] The O'Halloran survey is dated 19 December 1980.[407]

392 Ms Murkies gave evidence that when purchased by her parents the house at 8 Shandford Avenue was 'very run down and required a rebuild'.[408] In the course of that 'rebuild', Mr Murkies built the 'high capped wall', 'weld mesh fence' and 'privacy screen'.

393 As I have noted, the 'privacy screen' was affixed into the 'lower red brick wall' on the side of 6 Shandford Avenue by DynaBolts.

394 The 'high capped wall' was built in sections C, D and E. In section C, it came to constitute either the whole or practically the whole of 'the fence' between the properties. As I have noted, there is practically no dispute between the parties relating to the location of the boundary at section C. The real dispute relates to sections D and E, at which point the 'high capped wall' is built partly adjacent to the 'lower red brick wall' and also, in part, on top of it. In that sense, parts of the 'high capped wall' have since been visible on 6 Shandford Avenue (albeit not since early 2018 owing to the 'brush fence').

395 Finally, the 'weld mesh fence' was built in section B and may have replaced part of the 'ti tree fence' referred to in the evidence of Ms Murkies.

396 In my view, these circumstances no more firmly suggest that Mr Murkies' actions involved intentional or other taking of exclusive factual possession of parts of the land underneath or above 'the fence' after construction than the earlier actions of the Givonis in constructing the 'lower red brick wall'. In that regard, I am conscious that -

(a) there was no direct evidence that Mr Murkies had any such intention;[409]

(b) nor was there any evidence concerning the attitude of the Givonis concerning the works undertaken by Mr Murkies;

(c) it was implicit in the evidence that relations between the Murkies and Givonis were agreeable;[410]

(d) that state of affairs is consistent with many aspects of the construction along the fence line undertaken by Mr Murkies: particularly, the building of part of the 'high capped wall' above the Givonis' 'lower red brick wall', the replacement of the 'ti tree fence' (in which the Givonis likely had an interest) with the 'weld mesh fence' and the building of the 'privacy screen' (which Mr Murkies is said to have desired) on the side of 6 Shandford Avenue and there DynaBolted into the 'lower red brick wall'; and

(e) further, Mr Smith identified that if the section of wall that he observed under the concrete slab at 8 Shandford Avenue is the 'lower red brick wall', then that has been used to support the concrete slab on that property - very likely since 1982/83.

397 The circumstances to which I have referred are indicative of a considerable measure of co-operation between the neighbours in the works conducted along the fence line in 1982/83. In that, the circumstances suggest that the building of 'the fence' in that time amounted to further development of the entire fence line as a shared resource for the benefit of both neighbours.

398 In this sense, even if it was capable of being said that the Givonis built the 'lower red brick wall' wholly on the then prevailing title to 6 Shandford Avenue and so 'owned' and 'possessed' that land in the 1970s, the character of the overall fence line changed significantly in 1982/83. The building of the 'high capped wall' adjacent to and in significant part above the 'lower red brick wall', from that point, confirmed a shared and blended resource for the benefit of both neighbours.

399 In that regard, the Givonis had the uses of the 'lower red brick wall' which I earlier identified, but Mr Murkies now had at least the support to the 'high capped wall' provided by the 'lower red brick wall' being in parts underneath and alongside it.

400 From that point, in my view, at least in sections D and E, it was not possible to conclude merely from the form of 'the fence' that either neighbour had exclusive factual possession of the whole or any distinct part of it, or the land underneath or above it.

401 In addition to the above, Mr Murkies had the O'Halloran survey when undertaking the works to which I have referred, and a boundary between the properties is delineated in that document. That being the case, it is much more likely that Mr Murkies was mindful of that boundary and that his intention was to construct additions to the fence line in a manner that tended to conform with it or at least not alter it. It would be a strong thing to conclude that he had held the O'Halloran survey but nonetheless harboured an intention (of which there is no evidence) to dispossess his friendly neighbours of some part of their land.

402 Nor, as I have indicated, could I conclude that by building the structures to which I have referred, including choosing and using the 'split face concrete bricks' and the 'weld mesh fence', the Murkies must thereafter be taken to have been in exclusive factual possession of any land underneath or above 'the fence' in any manner not then delineated on the title. In that regard -

(a) in sections D and E, 'the fence' remained sturdy and wider than the boundary;

(b) those sections of 'the fence' were visibly ornate (certainly when viewed from 6 Shandford Avenue);

(c) those sections of 'the fence' were also complicated in the sense that they comprised at least two different elements - namely the 'lower red brick wall' and the 'high capped wall' - that were integrated, at least in part, and, as I have indicated, one could not discount the presence of other elements of the structure;

(d) the 'high capped wall' has mutually benefited both neighbours in much the same way as explained earlier in connection with the 'lower red brick wall';

(e) it remained the case that the 'lower red brick wall' was used by the Givonis, as it had been since construction in the mid-1970s;

(f) the 'weld mesh fence' likely replaced a structure in which the Givonis had an interest and that part of 'the fence' was not in a form that could reasonably be said to say anything - of itself - concerning possession of the land underneath it (which could, after all, still be seen because the 'weld mesh fence' was predominantly made of wire);

(g) there was very little evidence of any maintenance of any part of 'the fence' after construction - other than the 'privacy screen', and I would not regard that as having been indicative of exclusive factual possession of either that structure or the 'lower red brick wall' to which it was affixed; and

(h) nor was there any evidence of either the Murkies or the Givonis seeking to 'use' or control the 'other side' of any part of 'the fence'.

403 Notwithstanding the above, a significant part of the argument of the first defendant was directed to the use in the 'high capped wall' of the 'split face concrete bricks' that also appear in the house at 8 Shandford Avenue. As I have earlier noted, counsel developed that proposition by reference to several features of the house and fences at 8 Shandford Avenue (including the then corresponding 'weld mesh fences'), but the centrepiece of the submission was very much founded in the 'distinctiveness' of the bricks, and their correspondence, aesthetically, with those used in the house and other fences. In that regard, early in the trial, counsel for the first defendant experimented with describing them as 'architectural bricks' (albeit that the descriptor seemed not to catch on in the evidence of the witness, Mr Stansfield).[411]

404 The use of the 'split face concrete bricks' is obvious, as is the aesthetic benefit to the proprietors of 8 Shandford Avenue, at least on the side of 'the fence' visible from 8 Shandford Avenue. However, that is not to say that there was and has been no benefit to the proprietors of 6 Shandford Avenue. The appearance of the 'high capped brick wall', to the extent that it has been visible on 6 Shandford Avenue, is not unattractive and also not wholly out of keeping with the colour of the render that has appeared on both the 'lower red brick wall' and the house at that property. The height of the wall also benefits both neighbours.

405 There is, of course, no evidence that the building of the 'high capped wall' using those bricks was resisted by the Givonis for aesthetic or any other reason. Further, it was not really suggested to any witness for the plaintiff - particularly the plaintiff himself or Mr Racovalis - that there was any distinct disadvantage or inconvenience to any proprietor of 6 Shandford Avenue (including the plaintiff) by reason of the fact that at points in 'the fence' visible from 6 Shandford Avenue the 'split face concrete bricks' of the 'high capped wall' could have been seen (prior to early 2018).

406 In this sense, the assumption in that aspect of the submissions of the first defendant - which seemed itself to have its origins in some of Mr Hirsch's views concerning the use of the 'split face concrete bricks' and Mr Murkies' overall building of 'the fence' - is much more apparent in argument and rhetorical flourish than real in any reliable evidence ultimately adduced.

407 Another feature of the 'high capped wall' emphasised by the first defendant was the fact that, at points of 'the fence' in sections D and E, it had been built on top of the 'lower red brick wall'. It followed, it seemed to be said, that if it were not accepted that Mr Murkies had built the 'lower red brick wall', his building of the 'high capped wall' over parts of it produced a similar result, namely, the 'enclosure' of such of the 'lower red brick wall' as is underneath it. Conversely, it was said by the plaintiff that if it were found that his predecessor built the 'lower red brick wall' (which, of course, I have accepted) then it might be that he retained title to the land underneath it even if part of the 'high capped wall' were above it.

408 The reasoning of Gorton J in Bottos demonstrates that in some cases circumstances of this kind might be said to give rise to claims to 'cubical space'. Neither party in the present case made any distinct claim of that kind in connection with the structures in sections D and E of 'the fence'.[412] In any event, in the circumstances of the present case - as distinct from those considered by his Honour in Bottos - the fact that part of the 'high capped wall' was built over the parts of the 'lower red brick wall' says no more about 'enclosure' of the land either underneath or above it than the original building of the 'lower red brick wall' by the Givonis.

409 It follows from the above that, in at least the period from 1980 and until purchase of 8 Shandford Avenue by the first defendant in 1995, neither neighbour either intended to possess any land underneath or above 'the fence' in any manner not then delineated on the title, nor exclusively possessed any such land to the exclusion of the other neighbour. As is apparent, in my view, the history and construction of 'the fence' made it a complicated resource shared co-operatively between the neighbours and in respect of which there was no intention or occasion to consider the title boundary to be anywhere other than the then prevailing location.

410 After the purchase of 8 Shandford Avenue by the first defendant in 1995, the form of 'the fence' did not change until the works earlier referred to in the period between 2016 (when the angled section of the 'privacy screen' seems to have been removed) and early 2018 (when the 'masonry fence' and 'brush fence' seem to have been completed).

411 I do not accept that in that period - from 1995 to early 2018 - any of the relevant proprietors altered the character of the mutual sharing of 'the fence' fundamentally established in the mid-1970s and confirmed in 1982/83. Nothing changed in that time to cause any proprietor to enter into exclusive factual possession of the whole or, for that matter, any distinct part of 'the fence' not presumed to be in their possession as a consequence of the then prevailing 'paper title' (both before and after 2001).

412 As I have indicated, any maintenance in the period seems to have related to only the 'privacy screen', and that seems to have occurred as between Mr Hirsch and Mr Bardiger as a consequence of an agreement or understanding between them rather than via any assertion of exclusive factual possession.[413]

413 It follows that, in that period, it remained the case that neither neighbour was in exclusive factual possession of either the whole or any distinct part of 'the fence' other than that reflected on the prevailing 'paper title'.

414 In a sense, these conclusions concerning the issue of exclusive factual possession in and relevantly since 1995 are the end of the matter.

415 In any event, nothing seems to have changed in respect to the intentions of the relevant proprietors of 6 Shandford Avenue in the period to which I have referred. There was no evidence concerning the intentions of Mr Bardiger at any point.

416 As to the plaintiff, of course, he purchased 6 Shandford Avenue from Mr Bardiger. Although that contract of sale is not in evidence, it would be odd, to say the least, for the plaintiff to have thereafter assumed an intention concerning possession of 'the fence' that had not been displayed by Mr Bardiger.[414]

417 In any event, as I have noted, the plaintiff seemed broadly to have considered 'the fence' to be shared, until his concerns came to be provoked by, as he described it, 'Mr Hirsch ... trying to pinch my land'.[415]

418 What did change were the intentions of the first defendant, principally via Mr Hirsch. It is unclear when his assertions concerning 'his fence' and 'his wall' commenced, although it is likely to have preceded the 2001 Application, which is, of course, more than 15 years prior to the 2017 Application. A significant part of the momentum in the claims of the first defendant in the present proceeding was sought to be derived by reference to those assertions and the length of time in which they have been expressed.

419 It may be acknowledged, of course, that the first defendant via Mr Hirsch has had that aspiration, but it does not follow that in and since that time the first defendant has exclusively possessed the whole or more particularly any distinct part of 'the fence' other than that which it would be presumed to be in possession of as a consequence of the prevailing 'paper title'.

420 As I have indicated, notwithstanding Mr Hirsch's assertions, in most of the period under consideration (at least until early 2015), the pattern and fact of possession of 'the fence' did not appreciably change and the first defendant was no more in exclusive factual possession of the whole of 'the fence' or any distinct part of it than the Murkies' had been before it.

421 In addition to the above, in my view, it may very much be doubted that the intention thereafter expressed by Mr Hirsch, and thus the first defendant, was exclusively to possess 'the fence' and the land underneath and above it, rather than to 'own' it regardless of how it was possessed and used. For example, in the letter sent to the plaintiff in 2015, Mr Hirsch referred repeatedly to 'the fence' as his 'property'.[416] As the Court of Appeal stated in Abbatangelo, however -

The intention that the putative adverse possessor must have, and must manifest, is an intention to possess exclusively, not an intention to own.[417]

422 For completeness, I should address the 2001 Application and the alteration of the title boundaries effected at that time. The plaintiff's formal contention that the application was wrongly granted was ultimately not pressed.[418] It will be evident that the material placed before the Registrar had deficiencies. However, the determination was not said to have been procured by fraud and, in any event, the application is not now formally said to have been wrongly granted.

423 That said, the first defendant sought to contend that by granting the 2001 Application the Registrar had, in effect, accepted the logic of its claim in respect of 'the fence'.[419] Notwithstanding the deficiencies in the underlying material to which I have referred, and the evidence and suggestions concerning the lack of any detailed examination by the Registrar of any claims to 'bona fide occupation' made in 2001, the simple fact is that no such 'logic' was expressly accepted. Among other things, the amendment effected at that time did not amount to granting to the first defendant the title to the whole of the land now sought under and above 'the fence' and, indeed, the 2017 Application has been brought by the first defendant in order to 'correct' that state of affairs.[420]

424 The real significance of the alterations to the title boundaries effected in 2001 was that from that time the proprietor of 6 Shandford Avenue (including, in due course, the plaintiff - who, of course, purchased the property some 10 years later) was not deemed to be in possession of the whole of the land under and above the 'lower red brick wall' and, for that matter, nor was the first defendant. As identified by the Court of Appeal in Abbatangelo, the owner of land with the 'paper title' was deemed to be in possession of the respective parts of the land there identified. Further, and for the reasons which I have sought to explain, there was no sufficient contrary indication because neither party had exclusive factual possession of any 'other' parts of the land because 'the fence' on the 'disputed land' is and was at all relevant times shared.

425 The other potential significance of the granting of the 2001 Application, sought to be suggested by the first defendant, concerned the Givonis. To the extent that the first defendant seemed to suggest that the Givonis - in their capacity as proprietors of 6 Shandford Avenue - might have agreed in or at least consciously acquiesced in the first defendant's claims to 'the fence' in 2001, I must reject it -

(a) as I have noted, the Givonis were not called, and their true state of mind and any quality of knowing acquiescence is unknown;

(b) Mr Hirsch gave no evidence of any discussion with the Givonis about 'ownership' of the boundary fence;[421]

(c) in any event, on one version of events given by Mr Hirsch, he knew that the Givonis 'had sold' at or about the time at which the application was made, albeit that he also said that they 'may not have moved out', 'may have sold' and that he was not 'a hundred per cent sure on that'; [422] and

(d) whilst it is evident that the Registrar sent a letter to 6 Shandford Ave there was no documentary evidence confirming that the Givonis personally received that letter, or understood the meaning of it or consciously determined to accede to the claims made.[423]

426 For those reasons, other than that the position of the boundary was then adjusted in the manner recorded on the Register, and 'deemed' possession of the land by the respective proprietors was altered accordingly, I do not regard the events in 2001 as having had any wider significance - then or now.

427 In particular, I do not consider the subsequent position as to 'bona fide occupation' to have been altered by the 2001 Application, the statutory declarations made in support of the 2001 Application or, indeed, those made in support of the 2017 Application.

428 I have already referred to the limitations in the 2001 statutory declarations. The 2017 statutory declarations were of an equally formulaic quality and made by members of the Murkies family. Indeed, Ms Murkies made statutory declarations on both occasions, and I have already referred to the rather vague state of mind evident in her evidence concerning 'the fence' and the role that the views of her husband may unconsciously (and perhaps quite understandably) have played in it.

429 In any event, there is plainly an awkward tension between the content of the statutory declarations made by essentially the same camps of declarants in 2001 and 2017 respectively.

430 Further, in my view, none of the statutory declarations really amount to evidence of the kind that, for example, satisfied the Court of Appeal in Abbatangelo.

431 It follows from the above, in my view, that neither party has made out its various claims to 'possession', 'ownership', 'bona fide occupation' or adverse possession of the whole or any distinct part of the 'disputed land' beyond that which they may be presumed to be in possession of as a consequence of the prevailing 'paper title'.

432 In that regard, while, as I have indicated, each party has sought to advance its claims to their desired part of the 'disputed land' by reference to the opinion evidence of their favoured surveyor or surveyors, I do not accept that, for the requisite period either party has -

(a) been in exclusive factual possession of any distinct part of 'the fence' and associated land other than that to which they would each be presumed to possess by reason of the prevailing 'paper title'; or

(b) intended to be in exclusive possession of any other distinct part of 'the fence' and associated land.

433 For completeness, I should add that it necessarily follows that the position cannot be altered by the parties' respective appeals to 'consistency'. For its part, the first defendant sought to emphasise that granting to it the land sought at section D would be essentially consistent with the title which it already held to the land at sections C and E.[424] By contrast, the plaintiff submitted that there was 'common sense' in the drawing by Mr Stansfield of a straight line through 'the fence' at section E and on to the face of 'the fence' at section C.[425]

434 The power in each contention, of course, is in its appeal to 'order', 'common sense', 'straightness' and 'neatness'. Regrettably, however, for the historical and legal reasons that I have sought to outline, neither contention can be accepted. In the end, neither party has established either the exclusive factual possession or intention that are together necessary in order to alter the prevailing boundary.[426]

(a) neither party has established any claim to adverse possession and thus 'bona fide occupation' of their favoured part of the 'disputed land';

(b) consequently, no part of the presently subsisting title of either party has been extinguished by adverse possession or 'bona fide possession'; and

(c) there is therefore no occasion for the Registrar to alter the presently registered title boundary.

436 It follows that most if not all of the declarations and other orders presently sought by both parties should not be made. In my view, no rights have been established such that the Register, in its present form, should be altered; at least insofar as the title boundaries are concerned.

437 The plaintiff has, however, succeeded in establishing that the 2017 Application should be rejected and that the Registrar should be directed accordingly.[427] The plaintiff's caveat should, of course, also be removed.

438 It is, of course, awkward that the presently registered title boundary is regarded by each party as having been established in error, particularly in respect of sections D and E. As I have explained, however, there are historical and other reasons for that state of affairs. As I have also sought to explain, it does not follow from the now mutual position of the parties that either has demonstrated a legal entitlement to any portion of the 'disputed land' that should see the title boundary moved and registered in a position different to that which presently subsists.

439 The agreement made at the meeting on 2 November 2017 must be taken to have the effect which was agreed. It follows that to the extent that the 2017 Application would seek to alter the position of the title boundary at section B it must be rejected for that further reason.

440 The effect of the above determinations concerning 'bona fide occupation' and adverse possession may, however, be that the agreement has no different effect upon the proper location of the title boundary at section B.

441 I will hear the parties concerning the form of orders, and costs.

[2] The precise dimensions of the strips of land in dispute were identified in a document prepared by Mark Stansfield, licensed surveyor, and tendered into evidence, essentially by consent, in the course of the final addresses of the parties: see, Exhibit KK.

[3] See, Amended Notes and Photos from 6 and 8 Shandford Ave, Brighton dated 30 September 2021 ('Notes and Photos from the View') - which was accepted by the plaintiff and first defendant to be an accurate record of the substance of the view.

[4] Cf., Property Law Act 1958 (Vic) s 272.

[6] Exhibit A, CB690-691. Exhibit T, CB921-922.

[7] Exhibit D. Mr Pearce also prepared an application for the plaintiff in respect of the boundary defined by his plan of survey, although that application was never lodged: see, Exhibit A, CB646-654.

[8] Exhibit A, CB721. The respective 'lines' are blue (Barge), black (Sewell), green (Stansfield) and red (Pearce).

[9] The precise measurement of the sections differs slightly as between Mr Stansfield and Mr Sewell. However, during the running of the trial the sections were simply referred to as A, B, C, D and E without attaching much, if any, significance to the measurement differences to which I have referred.

[10] As to which, see, for example, photographs 15, 16 and 17 taken by Mr Pearce in 2017: Exhibit A, CB673-674.

[11] See, Notes and Photos from the View, Figs.1 and 2: 'masonry fence' (behind trees) shown from 8 Shandford Avenue; and Figs.14 and 15: 'masonry fence' (behind trees) shown from 6 Shandford Avenue.

[12] Mr Stansfield gave evidence that a small part of section C is comprised by the 'lower red brick wall': see, in particular, T188-189. At other points in the hearing, the premise that no part of the 'lower red brick wall' appears in section C appeared to be accepted: see, for example, T542 and T1128-1129.

[13] As to which, see, for example, photograph taken by Mr Stansfield: Exhibit A, CB719 and photographs 8, 9, 14 and 15 taken by Mr Pearce: Exhibit A, CB669-670, 672-673. See also, Notes and Photos from the View, Fig.3.

[14] As to which, see photographs taken by Mr Stansfield: Exhibit A, CB711-719. See also, Notes and Photos from the View, Figs.4 and 13.

[15] See, for example, Notes and Photos from the View, Fig.3.

[16] As to which, see photographs taken by Mr Stansfield: Exhibit A, CB714-718. See also, Notes and Photos from the View, Fig.4.

[17] Exhibit B. Those enlargements were explained in written and oral opening by Counsel for the plaintiff. The written opening was amended slightly in oral opening. As to the written opening, see CB1307-1316.

[18] As to which, see, for example, photographs 12, 13, 14, 15 and 16 taken by Mr Pearce: Exhibit A, CB671-673. See also, the photographs taken by Mr Nicholson: Exhibit L, CB21-24 and CB26-27. In both sets of photographs the 'privacy screen' is covered by a green shade cloth.

[20] As to which, see, in particular, photographs taken by Mr Stansfield: Exhibit A, CB714-715 and the Notes and Photos from the View, Fig.4. See also, photograph 6 taken by Mr Pearce: Exhibit A, CB668 and two photographs taken by Mr Nicholson: Exhibit L, CB20-21.

[21] See, for example, photographs taken by Mr Stansfield: Exhibit A, CB711-713.

[22] See, Notes and Photos from the View, Fig.6.

[24] Ibid, 0.012+0.170+0.027+0.315+0.320=0.844 square metres.

[29] Further amended statement of claim dated 16 September 2021, CB1277-1295. See also, plaintiff's outline of opening submissions dated 17 September 2021, CB1307-1317.

[31] Which is the boundary defined by Mr Stansfield; being the 'green line' on the 'enlargement' diagram comprising Annexure 1.

[32] Defence to the further amended statement of claim and counterclaim dated 4 October 2021. See also, first defendant's outline of opening submissions dated 20 September 2021, CB1318-1326.

[33] See, in particular, T1197-1198, T1224, T1232 and T1256.

[35] Cf., Cervi v Letcher [2011] VSC 156; (2011) 33 VR 320, 325 [15]-[16]. See also, Bottos v CityLink Melbourne Ltd [2021] VSC 585.

[36] Riley v Penttila [1974] VicRp 67; [1974] VR 547, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419, Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56, Cervi v Letcher [2011] VSC 156; (2011) 33 VR 320.

[37] [1866] UKLawRpHL 7; (1866) LR 1 HL 129, 140-141.

[38] [1955] VicLawRp 2; [1955] VLR 276, 279 ('Walsh').

[39] Sidhu v Van Dyke (2014) 251 CLR 505, [66]-[78], Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26; (2016) 260 CLR 1 and Grundt v Great Boulder Proprietary Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641, 674.

[40] Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280 [221] and Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424, 525 [369].

[45] T197. Later in his evidence, Mr Stansfield identified a centimetre of difference as 'nothing' - see, T218.

[51] T207. See also, later, in cross-examination, at T218.

[62] T245. In respect of the survey of Mr Pearce, see also re-examination at T251-252.

[67] First defendant's outline of closing submissions dated 28 November 2021, [32] and [35].

[82] First defendant's outline of closing submissions dated 28 November 2021, [55]-[56].

[99] First defendant's outline of closing submissions dated 28 November 2021, [65].

[112] Exhibits 14, 15, 17, 18, 19, 20, 26, 27, 28 and 29.

[131] Exhibit 32, CB853. See also, Exhibit 32, CB851 and CB852.

[158] See, Notes and Photos from the View, Fig.4. Cf., Evidence Act 2008 (Vic) s 54.

[162] First defendant's outline of closing submissions dated 28 November 2021, [74].

[166] T1033. See also, in re-examination, T1055.

[172] T1073-1080. See also, T1102-1103.

[173] See, in particular, T1087-1088 ('our understanding', 'he mentioned' and 'not a priority of mine at the time'), T1094 ('we have different interests'), T1096 (reliance upon what her husband told her about the 'asbestos'), T1097 ('based on information that was presented to me at the time') and T1098 ('it was not a priority of mine at the time').

[179] As to which, see Exhibit 32, CB831-832.

[184] Ibid CB848. It is later clear that this is an assumption: see, Exhibit 32 CB860.

[195] Mr Smith later derided such drawings as 'comics': T1153.

[205] Cf., First defendant's outline of closing submissions dated 28 November 2021, [110].

[207] Email to the Court dated 18 November 2021.

[208] Which underlines the significance of the retreating in the evidence of Mr Hirsch to which I have already referred: T913.

[210] As will become apparent, I consider essentially the same position to apply in respect of the written material and plan of survey of Mr Barge, who was also not called.

[212] See, T1200-1207, T1220-1221 and T1292-1295.

[213] Among other things, compare plaintiff's outline of closing submissions dated 29 November 2021, [7](a), [7](h), [8](c)(iii), [8][d], [104] and [109] and first defendant's outline of closing submissions dated 28 November 2021, [80] and [103]. See also, Annexures 1 and 2.

[214] Exhibit Q, CB903 and Exhibit 45.

[218] Subject to the evidence of Mr Stansfield to the effect that a small portion of the 'lower red brick wall' was also in section C: T188-189.

[222] The position concerning Mr Stansfield was somewhat confused in his evidence (T241-243), however he may well have had access to 8 Shandford Avenue as what I assume to be his equipment appears on that side of 'the fence' in one of the photographs apparently taken by him: Exhibit A, CB719.

[231] T660. I note also the evidence of Ms Murkies to which I early referred. In light of the throwaway quality of that evidence I do not regard it as providing any reliable support to the evidence of Mr Hirsch on this issue.

[237] During the trial I disclosed that I had known and, in fact, in the course of practise at the Bar, been instructed by the late Peter Atkinson, solicitor. I did not regard any present issue as likely to arise from that historical connection and neither did any party.

[241] Seemingly obtained in answer to a subpoena issued to the Bayside Council.

[242] Plaintiff's outline of closing submissions dated 29 November 2021, [8](d).

[244] Exhibit D. See also Exhibit A, CB656.

[257] Exhibit D. See also Exhibit A, CB656.

[260] In making this observation, I do not overlook the evidence of Mr Stansfield to the effect that the O'Halloran survey 'would be very accurate' (T199) [Emphasis added].

[292] See, Notes and Photos from the View, Fig.4.

[297] See, for example, Exhibits 2 and 3.

[306] Further amended statement of claim dated 16 September 2021, CB1292 [39].

[308] Defence to the further amended statement of claim and counterclaim dated 4 October 2021, [23] and [39].

[309] As to the 'other three men', Mr Hirsch later said 'I had no idea who they were': T730-731.

[313] Exhibit 35. See also, Exhibit H, CB469-470 and Exhibit HH, CB1208-1209.

[314] Exhibit 51, Exhibit 52 and Exhibit 53.

[350] T553-555. See also, T556: 'He agreed, he said, "Yes, I agree with that", I can't tell you whether he said yes, I agree with it or okay, but he agreed and that's' how the conversation moved forward.' Also see, T637.

[351] See, in particular, T597 and T613-614.

[357] Which, I note, was a matter specifically emphasised in his email to Mr Barge as early as August 2017: see, Exhibit 43, CB1062.

[361] First defendant's outline of closing submissions dated 28 November 2021, [70].

[362] Apple and Pear Australia Pty Ltd v Pink Lady America LLC [2016] VSCA 280 [221], Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd (2001) 117 FCR 424, 525 [369].

[363] [2009] VSCA 188; (2009) 259 ALR 56, 58-61 ('Abbatangelo').

[364] 'Paper title' is used interchangeably with 'registered title'. I recognise that registered titles are now electronic.

[365] Abbatangelo (n 363) 75 [75].

[368] Abbatangelo (n 363) 68 [53] and 69 [56].

[372] [1974] VicRp 67; [1974] VR 547 ('Riley').

[374] Ibid 562. The latter proposition was stated by his Honour with reference to Leigh v Jack [1879] UKLawRpExch 53; (1879) 5 Ex.D. 264, which was further explained by the Court of Appeal in Abbatangelo (n 363).

[378] [2000] VSCA 11 ('Malter').

[380] (2006) V ConvR 54-709 ('Bayport').

[384] [2011] VSC 156; (2011) 33 VR 320 ('Cervi').

[390] [2021] VSC 585 ('Bottos').

[396] T246. Mr Stansfield also explained that surveyors look at previous surveys, but that 'the surveys ... may or may not show the same boundary'.

[397] T904. Mr Stansfield was not specifically asked to comment upon the 'custom' said to have been identified by Mr Sewell; nor, for that matter, was Mr Circosta.

[400] T494. See also, T486 and T492-493.

[404] Indeed, albeit that the principle stated by O'Bryan J in Walsh (n 38) 279, is incapable of ready application in the present case, that principle would not suggest that the mere building of a wall on the boundary affects property in the land - rather, the reverse.

[409] I acknowledge the evidence of Ms Murkies to the effect that her father had 'wanted to control the entire development': T1077. It does not follow, however, that he must be taken to have wanted to dispossess his neighbours of any part of their land in the process.

[411] See, T224-225. The descriptor made a return in final addresses: see, T1205, T1211, T1292 and T1300.

[412] I note that the plaintiff's outline of closing submissions dated 29 November 2021 sought declarations in respect to, for example, the 'land occupied' by the 'lower red brick wall or the airspace above it': see, [146](d). That is a claim to all space rather than 'cubical space'.

[414] Although, of course, I acknowledge that, on the evidence, an observation of this nature might arise in connection with the respective positions of Mr Murkies and, in practical terms, his successor, Mr Hirsch.

[420] Cf, submissions in final address by counsel for the plaintiff: T1253-1254.

[426] In this regard, I acknowledge that the plaintiff's outline of closing submissions dated 29 November 2021 included a suggestion that the Court might have a 'discretion' to direct the Registrar under s 103 of the Act (see, [143]). In oral addresses, however, it was not suggested that, in the present case, such a power might operate independently of either party establishing a substantive entitlement via the operation of the relevant provisions of the Limitation of Actions Act 1958 (Vic) and the doctrine of adverse possession (see, in particular, T1253-1256).

[427] Plaintiff's outline of closing submissions dated 29 November 2021, [146](f). Cf., T1238.