CASTLES v STOCKTON [1989] NSWCA 33

CASTLES v STOCKTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and CLARKE JJA 26 July 1989, 4 August 1989

[1989] NSWCA 33

CONSTRUCTION OF AGREEMENT — boundary dispute — litigation — dismissal upon parties making settlement agreement providing independent surveyor should plot boundary line — subsequent dispute about meaning of "plot" — held, on materials before Court, independent surveyor had plotted boundary in accordance with settlement agreement. ORDER Appeal dismissed with costs.

Gleeson CJ In this matter I have had the advantage of reading in draft form the judgment of Priestley JA. I agree with the orders proposed by his Honour and with his reasons for those orders.

Priestley JA This appeal arises from a dispute between owners of adjoining land at Richmond about the precise situation of their common boundary. The two parcels of land were under Old System title. The dispute between the neighbouring owners came to the surface when the owners made the Primary Applications necessary to bring their land under the provisions of the Real Property Act 1900. Mrs Stockton, the owner of 120 Lennox Street, Richmond then began proceedings against Mr and Mrs Castles the owners of 122 Lennox Street, Richmond for declarations and orders dependent upon her claim concerning the location of the boundary being correct. Mr and Mrs Castles resisted Mrs Stockton's claims, and brought a cross claim, upon the basis of their different view of the proper location of the boundary.

A good deal of affidavit evidence was filed by both sides in the proceedings which however came to an end (or so it was thought at the time) before a hearing. This was because of an agreement between the parties, pursuant to which the court on 23 September 1985 by consent ordered the dismissal of Mrs Stockton's summons and the cross claim of Mr and Mrs Castles. The court noted the terms of settlement agreed between the parties, the material parts of which were as follows: