3 The defence of estoppel, if successful, could be an answer to the Council's application for the removal of the encroachment. Depending on the relief granted to accommodate the estoppel, it could defeat the Council's claim to be an adjacent owner, and establish that there was no encroachment. The estoppel would also be relevant to the exercise of the Court's discretion under s 3(2).
4 The Court therefore had jurisdiction to entertain the defence of estoppel and grant appropriate relief in accordance with the decision in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, 582 where Gleeson CJ said:
"The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim. Such questions might be questions of such a nature that they could also very well have arisen for decision in another forum … In this connection s 22 is not to be understood as extending the jurisdiction of the Court, but as conferring on it full power to exercise a jurisdiction that is granted elsewhere".
5 The task of the Court in considering this defence was made more difficult by the failure of the Vaughans to properly particularise the estoppel relied on, and the failure of the Council to insist on such particulars being given. This is not a private matter which is solely their concern, but is also a matter of public significance. The omission has also complicated the task of this Court. The Court, for its own protection, should insist on a defence such as this being properly particularised. The Vaughans should have been required to identify the conduct and the representations referred to, the detriment relied on, and the relief they claimed.
6 The trial Judge rejected the defence of estoppel. Because the appeal from the Court in a Class 3 case is limited to questions of law, I need only refer to two of the matters relied upon, namely the Council's sewerage connection plan of 25 February 1985 (the plan) and a compass and chain survey dated 23 February 1979 (the survey) prepared by the Department of Crown Lands. A copy of the plan was in the possession of the Vaughans' solicitors at the time of their purchase in 1987. It showed the subject house located entirely within what appears to be lots 3-5, with a sewerage connection 44 feet from what appears to be the northern boundary of the combined lot.
7 The survey, a copy of which was in the possession of the Council, shows a dwelling located across the boundaries of Lots 5 and 6. The evidence did not disclose when the survey came into the possession of the Council.
8 Mrs Dale, a solicitor who swore an affidavit for the Council, stated that she would not advise a client to rely upon a sewerage connection plan to establish the boundaries of the property because it only indicates where sewerage lines are located in relation to improvements such as a building or a fence. She was not cross-examined and her evidence was accepted. The Judge held that it was not reasonable for the Vaughans or their solicitors to rely upon the plan as a representation of the location of property boundaries because such documents did not purport to show "the accurate location of property boundaries".
9 The fact that the plan did not purport to show the accurate location of the property boundaries does not mean that it was incapable of conveying a representation. A representation to found an estoppel must ordinarily be clear and unequivocal. See Low v Bouverie [1891] 3 Ch 82 CA; and Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd [1972] AC 741. It is at least arguable that the construction of the plan, in this respect, involves a question of law (see Woodhouse AC Israel Cocoa Ltd v Nigerian Produce Marketing Co Ltd ibid) and that it was capable of conveying a clear and unequivocal representation.
10 The plan does not identify the lot or lots on which the house and the sewerage line are located, but does indicate with clarity that the sewer line from Manfred Street is located 44 feet away from what appears to be a side boundary. The evidence does not include a detailed survey of the property. There is a survey report and drawing prepared by Canty's, surveyors of Byron Bay, dated 25 March 1996 which shows the location of the house across the boundary between Lots 5 and 6 and the location of a fence near the northern boundary of Lot 6. The drawing shows that 35-40% of the building is on Lot 6, but not its dimensions or its exact location in relation to the boundaries or the fence. It states that it should not be used for scaling. There is no evidence of the precise distances between the house and the side fence, or from the house to the boundary with Lot 7. The Court is therefore unable to determine whether the 44 feet was measured from the boundary or the fence.
11 The plan purports to show either the fences on all four sides of the property or its boundaries. It refers to an inspection of the work on Lots 3-5 on 31 May 1974. There is evidence that the whole of that block as occupied by the Vaughans' predecessors in title was fenced at that time of the sale to the Vaughans (combined AB 53, 60). When the proceedings were commenced there was "an old fence for a short distance from the street to the north of the house" (red AB 5). The affidavits of Kevin Vidler and John Vaughan refer to the fencing and annex photographs of the property taken in 1950, 1962 and 1965. However it is not clear whether the combined block then thought to comprise Lots 3-5 was fenced on all sides in 1974.
12 The origin and purpose of sewerage connection plans were explained by Mr Cooney, the Council's Health and Environment Manager, in his affidavit. They are prepared after sewerage works have been carried out from field notes made by Council inspectors prior to the plumbers backfilling the trenches containing the lines. The location of the lines is defined in relation to the existing buildings or fences and not the surveyed boundaries.
13 The house was built by predecessors in title of the Vaughans, and the sewerage connections were installed in 1974 presumably by plumbers engaged by Mr Vidler. The plan was prepared in 1985 by the Council's Health and Environment Department. It is not clear whether the lines marking out the block represented the fencing in existence in 1974, or the assumed boundaries of the combined Lots 3-5 obtained from other records of the Council.
14 The evidence of Mrs Dale established that it would not be reasonable for solicitors to act on information in a sewerage connection plan as evidence that improvements were located within title boundaries. The contract of sale to the Vaughans signed by the vendor is dated 11 September 1987 (combined 106), but the plan was not annexed (ibid 111) and schedule 4 which contemplated that such a plan might be annexed was struck out. The plan was obtained by the Vaughans' solicitors from the Council in late August or early September 1987 when they were acting for Mr & Mrs Vidgen who were then interested in purchasing Lots 3-5 (ibid 24-5, 123, red 36) and was tendered from their conveyancing file for the purchase by the Vaughans (ibid 46-7).
15 Mr Vaughan said in his affidavit (red 82) that, at the time of his purchase, he believed that the house was located in the middle of lots 3-5 as Council documentation supplied at that time had shown the house in that position. He did not discover that this was incorrect until 1996 after the letter of demand from the Council solicitors. It was not clear from his affidavit whether Mr Vaughan saw the plan before he entered into the contract, or before its completion on 24 September 1987 or later still. The evidence includes letters from their solicitors dated 7, 17 and 24 September 1987. The letter of 7 September forwarded the draft contract for execution, but this did not include the plan, and the letter does not refer to it.
16 Mr Vaughan in his oral evidence said that Mr Black, his solicitor, sent a copy of this plan to him in Melbourne in August 1987 (combined 9). He was asked whether he read the contract and its annexures before he signed the contract and said that he "would have" done so (ibid 17-19).
17 The other two letters in evidence from their solicitors also contain no reference to the plan and one is inclined to doubt Mr Vaughan's evidence that he received a copy of the plan in August or September 1987. However he was not cross-examined on these letters, and it was not put to him that he did not receive the plan until after completion of the purchase. He referred to the plan in his affidavit of 6 February 1998 which annexed a photostat of the copy date stamped 28 August 1987 which his solicitors obtained on behalf of the Vidgens. He did not himself speak to Mr Black in connection with the purchase (combined 45). He was living in Melbourne at the time and had the assistance of a Melbourne solicitor, Mr Smith, who reviewed the contract for him (44). Mr Smith told him that he had spoken to Mr Black in connection with the purchase (ibid 17-19).
18 In my opinion therefore there was evidence in the plan of a representation made by the Council in August 1987 to solicitors who commenced to act for the Vaughans soon afterwards in a transaction relating to the same property, and there is evidence that this was communicated to Mr Vaughan before the contract for the purchase of Lots 3-5 was completed. There is therefore evidence, which the Court could have accepted, of the basic elements of an estoppel by representation which was not excluded merely because the plan did not purport to show "the accurate location of property boundaries". This is not a case where the encroachment is measured in centimetres. The Judge found that it was not reasonable for the Vaughans' solicitors to rely upon the plan, and there was evidence to support this finding. He also found that it was not reasonable for the Vaughans themselves to rely upon it, but, with respect, there was no evidence to support that finding.
19 Mr Vaughan was not cross-examined to establish his awareness of the unreliability of the plan as a general indication of title boundaries. Although he did not speak to Mr Black personally at this time, but only to Mr Smith, he gave no evidence of any discussions with the latter about the plan. He was not cross-examined to establish that Mr Smith advised him that the plan was unreliable or that he should obtain a survey. There was therefore evidence that Mr Vaughan knew of and relied upon this plan and no evidence that he acted unreasonably in doing so. Mrs Dale's affidavit contains no such evidence as it was directed to the advice a competent solicitor would give his or her client about such a plan.
20 Knowledge of facts obtained by a solicitor in the course of acting for a client in a conveyancing transaction is imputed to the client (Sargent v ASL Developments Ltd (1974) 131 CLR 634, 649 per Stephen J), but it is not clear that knowledge of the significance of those facts will be imputed in the same way. In any event it was not established that Mr Black realised that a sewerage connection plan should not be relied upon as a general indication of title boundaries. It may be that he was negligent in not appreciating this, but the knowledge that an agent ought to have but does not is not imputed to his principal although it may constitute constructive notice for some purposes. Without proper argument I am not prepared to find that it was unreasonable for the Vaughans personally to rely upon this plan simply because their solicitor knew or ought to have known this. See generally Spencer Bower and Turner "Estoppel by Representation" 3rd ed 1977 pp 91-2, 130-5.
21 The Judge also rejected this defence because he held that "estoppel requires knowledge by the party said to be estopped of the facts giving rise to the estoppel and of the fact that the other party has exposed himself or herself to his or her detriment by acting on the basis of a false assumption". With respect there is no such requirement in estoppel by representation which, unlike fraud, may arise from false representations innocently made. See Spencer Bower ibid 155-6. The position is different in the case of estoppel by acquiescence as explained in Willmott v Barber (1880) 15 Ch D 96, 105-6 by Fry J where knowledge of the facts and of a party's own legal rights is required. Estoppel by acquiescence is an exception to the general rule that silence is not a representation, but in this case there was evidence that the Council had made a positive representation.
22 The Vaughans therefore have established that the rejection of their defence of estoppel was vitiated by legal errors, and that there was evidence capable of establishing all the elements of this defence. The appeal therefore should succeed on this ground.
23 Where the appeal is limited to questions of law this Court can grant any relief to which the successful party is entitled as a matter of law on the findings made by the trial court. However it cannot make additional findings of fact or exercise a judicial discretion where different orders are open as a matter of law. Compare House v The King (1936) 55 CLR 499, 504-5.
24 Where an estoppel by representation is established the Court holds the representor to his representation and it has been thought that there is no discretion to mould relief, to ensure that it is proportional to the representee's detriment. Equitable estoppel is different in this respect and the Court's function is to determine the minimum equity to do justice between the parties. These distinctions have recently been questioned and a discretion to mould the relief for an estoppel by representation may be recognised. See The Commonwealth v Verwayen (1990) 170 CLR 394, 409-413 per Mason CJ and Giumelli v Giumelli (1999) 73 ALJR 547, 549-550.
25 In my judgment therefore the only order that this Court can make is for a new trial.
26 The Vaughans also applied for leave to adduce fresh evidence in the affidavit of Mr Pagotto, their solicitor, of 11 March 1999. A notice to produce had been served on the Council's solicitors before the trial which sought production of all surveys in its possession relating to the true boundaries of Lot 6 which had been brought into existence between 1 January 1975 and 31 December 1997. It was returnable on 18 June 1998 but no documents were produced that day. On the first day of the trial on 22 June some documents were produced, but these did not include any copy of the survey of 23 February 1979.
27 Mr Vaughan gave oral evidence at the trial that he had seen a copy of the survey in the Council's Beach Management Library. Mr Johnson, the Council's Property and Enterprise Officer, gave evidence that he had not seen a copy of the survey until that morning, and he could not say whether or not a copy was held in the Council's Library. The trial concluded without any attempt by the legal advisers for the Vaughans to require production of any copy of the survey in the Council's possession, or of other documents which might have established how and when a copy had first come into its possession.
28 On 1 December 1998 Mr Pagotto received an itemised bill of costs from the Council's solicitors which disclosed that on 4 November 1997 Mr Sochacki, its solicitor, had perused a Council file which contained a copy of the survey. This established that a copy had been in the Council's possession, that its solicitors had become aware of its existence, and that the Council had failed to comply with the notice to produce. Mr Sochacki swore two affidavits dated 26 March in which he deposed to the steps taken to ensure that the Council complied with the notice to produce, which contained his recollection of what had occurred when he inspected documents at the Council on 4 November 1997. He was cross-examined and I agree with Fitzgerald JA that his explanation for the Council's failure to produce its copy of the survey was unconvincing.
29 The Council's failure to produce its copy or copies of the survey prima facie attracts the principles applied in Quade v Commonwealth Bank (1991) 178 CLR 134. However Mr Vaughan and his solicitors knew that the Council had at least one copy of the survey in its possession. They established this in evidence, but failed to take the matter any further.
30 The discretionary power to receive fresh evidence on appeal conferred by s 75 A(7), (8) and (9) of the Supreme Court Act is more ample than the common law power. See CDJ v VAJ (1998) 72 ALJR 1548. Nevertheless the common law requirements are relevant to the exercise of the statutory discretion. These included the requirement that the party seeking the admission of the evidence should have exercised reasonable diligence to discover such evidence prior to or at the trial. See Wollongong Corporation v Cowan (1955) 93 CLR 435.
31 It is evident that the legal advisers for the Vaughans failed to use reasonable diligence in following up their knowledge that a copy of the survey was in the possession of the Council in its Library. This may have been a copy of the survey inspected by Mr Sochacki on 4 November 1997, and this may have been evident from notations. It is not clear whether the copy produced at the hearing in this Court was that previously inspected by Mr Sochacki, or came from the Council's Library. It has not been established that the copy inspected by Mr Sochacki came into the Council's possession before the plan was prepared in 1985, or before a copy of it was supplied to the solicitors in 1987. Nor has it been established that this plan was part of the records of the Council which should have been consulted when the plan was prepared, or before a copy was supplied to the solicitors.
32 In my judgment the discretion to receive the fresh evidence should be exercised against the Vaughans because of the failure of their legal advisers to exercise reasonable diligence to obtain the evidence before or at the trial. However the Council's non compliance with the notice to produce before and at the trial makes it inappropriate for the new trial to be limited to the evidence given at the first trial. In my opinion the following orders should be made:
(1) Appeal allowed with costs, other than costs occasioned by the motion for the admission of fresh evidence.
(2) Orders 2 and 3 of the Land and Environment Court of 14 July 1998 set aside.
(3) Remit the proceedings to that Court to determine the issues raised by paras 11, 12, 14, 15 and 17 of the agreed statement of issues of April 1998.
(4) Costs of the first trial to abide the order of the Judge presiding at the new trial.
(5) The Council, if qualified, to have a certificate under the Suitors Fund Act.
33 POWELL JA: I agree with Handley JA.
34 FITZGERALD JA: The appellants, Mr and Mrs Vaughan, have appealed against a judgment of the Land and Environment Court delivered on 14 July 1998. On an application by the respondent Council under the Encroachments of Buildings Act 1923, the Land and Environment Court declared that the house on Lot 5 of Section 3 in Deposited Plan 1623 (which is owned by the Vaughans) is also partly constructed on Lot 6 (which is owned by the Council), and ordered the Vaughans to remove that part of the house which is on Lot 6 before 5pm on 13 July 1999. Although they do not dispute that the house is partly constructed on Lot 6, the Vaughans seek to have both the declaration and the order for removal made by the Land and Environment Court set aside and the Council's application to that court dismissed or a retrial ordered.
35 While they made no cross-claim in the Land and Environment Court, there was an "issue" in that Court concerning whether any relief should be granted to the Vaughans, but that is not pressed in this Court. Conversely, although the order for removal for which the Council applied to the Land and Environment Court included any part of the house "which is within 900mm of the boundary between Lots 5 and 6 of Section 3 in Deposited Plan 1623", the Council did not ask this Court to extend the Land and Environment Court's judgment.
36 The trial in the Land and Environment Court took place on 22 and 23 June 1998. Some months beforehand, the parties had settled an "Agreed Statement of Issues", which provided:
" It is agreed
1. The applicant is the registered proprietor of land being Lot 6 in DP 1623 ("Lot 6")