Warringah Properties Pty Limited v Babij [2006] NSWSC 702 | Case summary

JUDGMENT 1 His Honour: The Plaintiff and the Defendants are respectively the owners of adjoining properties. It now seems to be common ground that what has been described as a sandstone structure (the "structure") stood (at least in a rough sense) upon the common boundary between the two properties. The dispute that has ensued between the parties came into being when the Plaintiff demolished the structure on or about 10 May 2005. The active participant on the part of the Plaintiff was the late Mr Humphreys (a director and licensed builder). 2 The Court has been told that the Plaintiff acquired its property in or about 2003. It has also been told that the property was acquired for the purposes of redevelopment. The Defendants have lived in their property for many years. 3 The Court has before it photographs of the common boundary area prior to demolition. It also has a photograph of that area subsequent to demolition. I shall briefly endeavour to describe in a general sense the boundary area. A rocky outcrop stood on the Plaintiff's property adjacent to the common boundary. The height of the outcrop is variable. The common boundary is about 14.5 metres in length. The structure extended along the whole length of the common boundary. Looking from the property of the Defendants, at least in part the structure had a height of about 2 metres. Looking from the rocky outcrop on the Plaintiff's property, at least in part the sandstone structure was about waist high. There was also some wire mesh with stakes on the top of the structure. The Plaintiff has contended that there was fill on its property between the rocky outcrop and the structure and that it was about 1 metre high (this was a matter in issue between the parties). The height of the fill was lower than the height of the structure and was not observable from the property of the Defendants. 4 The Plaintiff obtained development approval. Without notice to the Defendants, it proceeded to effect demolition of the sandstone structure and says that it also removed the fill. It is said that it was necessary to demolish the structure and remove the fill to enable the construction of a driveway on the Plaintiff's property (the driveway being part of the redevelopment). At that time (and for a period thereafter) it was contended by the Plaintiff that the structure was on its property. The late Mr Humphreys gave evidence to that effect. 5 Subsequent to the demolition, also without consultation with the Defendants, the Plaintiff erected a paling fence on the common boundary. This replacement fence was not accepted as a satisfactory replacement by the Defendants. During pre-litigation correspondence, the Plaintiff came to take the stance that the sandstone structure was a retaining wall and not a dividing fence (it was then being contended that it retained the fill). 6 The Defendants brought proceedings in the Local Court seeking relief pursuant to s 8 of the Dividing Fences Act 1991 (the "Act"). It provides a remedy for restoration costs where a dividing fence has been damaged or destroyed by a negligent or deliberate act. 7 A contested hearing took place between the parties (it lasted about 2 days). The principal issue was whether or not the structure was a retaining wall or a dividing fence. The Defendants were successful in the proceedings and the Plaintiff was ordered to pay the sum of $26,000.00. It was also ordered to pay costs on an indemnity basis. 8 The Plaintiff has brought an appeal to this Court against both orders. It alleges that there has been error in point of law. It requires a grant of leave to challenge the costs order. 9 The hearing of these proceedings took place on 10 July 2006. Again, the principal issue between the parties was whether or not the structure was a retaining wall or a dividing fence. 10 The Act affords the relief that was sought by the Defendants in relation to the restoration of a dividing fence. Section 3 of the Act contains definitions of "dividing fence" and "fence". The definition of "fence" excludes inter alia a "retaining wall". Section 3 does not define a "retaining wall". Some assistance as to the meaning to be given to those words may be found in what was said in and what was referred to in Kontikis & Anor v Schreiner & Ors (1989) 16 NSWLR 706. 11 The Act introduced other provisions which were different to those previously found in its predecessor (the Dividing Fences Act 1951 (the "1951 Act")). Sections 7 and 13 thereof (which required contribution in equal proportions) have been replaced by different provisions (see inter alia sections 7 and 14(c)). Liability to contribute in equal proportions is only applicable where the standard of the dividing fence is not greater than the standard for a sufficient dividing fence. The Act now allows the making of orders determining the manner in which contributions for fencing work are to be apportioned or re-apportioned. These changes would appear to have been motivated by observations made in Kontikis. 12 Kontikis was decided whilst the 1951 Act was still in force. What was decided therein has been seen to be of relevance to the definition of "fence" that was introduced into the Act. It would seem that a "retaining wall" was expressly excluded so that the definition would accord with the position at common law (the exclusion of a retaining wall did not appear in the 1951 Act). In that case the Court gave consideration to a brick wall and held it was retaining wall and not a dividing fence within the meaning of the 1951 Act. 13 The definitions of "dividing fence" and "fence" are as follows: "dividing fence" means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. "fence" means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes: (a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and (b) any natural or artificial watercourse which separates the land of adjoining owners, and (c) any foundation or support necessary for the support and maintenance of the fence, but does not include a retaining wall or a wall which is part of a house, garage or other building." 14 The definition of "fence" can be seen to be one of great width. Save for the exclusions, it would appear to be contemplated to pick up inter alia any structure that has the characteristics of enclosing or bounding land. A "fence" satisfies the statutory requirements of a "dividing fence" if it separates the land of adjoining owners. The concept of separation has been said to have a functional connotation. 15 There has been attack on the expression of reasoning process by the Magistrate (Mr George LCM). In my view, in this case, it is unnecessary to embark on an analysis of his expression of reasoning process. I consider that any demonstrated error would not assist the Plaintiff. 16 There is little historical evidence pertaining to the structure (it had been in existence for a very long time). As a consequence, there is a lack of express evidence as to the purpose of its construction. However, what evidence there is compellingly demonstrates that it meets the statutory requirements of both a "fence" and of a "dividing fence". The structure was at least roughly situated on the common boundary. It extended along the whole boundary. Further, it can be observed that it was a structure that was higher than the fill. It had the characteristics of enclosing or bounding land. It also separated the two properties and performed the function of a dividing fence. 17 In the previous paragraph I have mentioned certain of the material that the Magistrate had before him. The mention was not intended to be exhaustive. I consider that not only was the result reached by him reasonably open on the material, it was the correct result. 18 It was correct to reach the result that the structure was a "fence" within the meaning of the Act and not a "retaining wall". It was also correct to reach the result that the structure was a "dividing fence" within the meaning of the Act. 19 The Plaintiff's case is dependent on evidence that there was fill behind the structure on the Plaintiff's property and that it was performing some retaining function in relation to that fill. In my view, even assuming that to be the case, it does not seem to me to be determinative in the circumstances of this case. 20 The question of what is a "retaining wall" has been little argued. No definition was presented by counsel. There are dictionary meanings. They are to the effect of it being a wall built to hold back or support material (including earth and water). 21 There may be overlapping of purposes. Apart from being erected to perform the purpose of a separating structure, a "fence" may also serve other functions (such as a function to provide support). In the determination of the question of whether a particular structure is a "fence" it can be expected that each case will turn on its own circumstances (with regard being had inter alia to matters of physical characteristics and function). Even if a fence has a support function, the Court is not precluded from finding that it was a "fence" (see Kontikis pp 711 - 712). I do not consider that it was intended by the legislature that a structure necessarily fell outside the Act merely because it provided some support or other function. 22 Questions concerning onus (relating to the burden to prove that the structure either was or was not a retaining wall) were agitated during the hearing. The questions were not fully argued. They do not have to be decided in this case and are better left for another day. 23 In addition to what has already been said, I am not satisfied that there was any error in the awarding of costs on an indemnity basis. It seems to me that the Magistrate was entitled to form strong views as to the conduct of the Plaintiff and to take that conduct into account when dealing with the questions of costs. The Plaintiff had deliberately acted without notice to demolish the structure so that it would not impede its redevelopment. Thereafter it obstructed the restoration of an appropriate dividing fence on the specious bases that the structure had been a retaining wall on its own property. It needlessly put the Defendants to the not inconsiderable expense of propounding defended proceedings to obtain the relief that they were entitled to under the Act. Apart from the absence of manifest error, there is a lack of any other features which would attract the granting of leave. 24 In conclusion, it can be said that the Plaintiff had the onus in this appeal to demonstrate error in point of law and that such error justified the disturbing of the decisions made by the Magistrate. In my view, the Plaintiff failed dismally to discharge that onus. 25 The Summons is dismissed. Save for the costs of a Notice of Motion the Plaintiff is to pay the costs of the proceedings. The costs of that Notice of Motion which was brought to obtain an order for security for costs are presently reserved and can be dealt with by Registrar Howe in due course.

Warringah Properties Pty Limited v Babij

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (3)