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: "1. The plaintiff and first defendants agree to commission a registered surveyor to plot the boundary line dividing their respective properties at nos 120 and 122 Lennox Street, Richmond, and to identify any en- croachments. 2. The decision of the surveyor as to the location of the boundary line and encroach- ments shall be final and for this purpose it is agreed he shall act as an expert and not as an arbitrator. 3. The name of the surveyor is to be chosen by the solicitors for the parties. 5. The parties agree to make no personal contact with the surveyor and shall only be entitled to make representation to him through their respective solicitors." The proceedings however did not come to an end with the agreement and orders of 23 September 1985. On 19 February 1987 Mr and Mrs Castles filed a Notice of Motion seeking that the orders of 23 September 1985 be set aside. This motion came on for hearing before Waddell CJ in Eq in March 1987. In his 2 UNREPORTED JUDGMENTS reasons he noted that the evidence tendered on the motion before him was confined to affidavits sworn after 23 September 1985, that counsel for Mrs Stockton had reserved the right to rely upon earlier material and that in the event neither side referred to such material. From the material which was tendered in evidence at the hearing it appeared that the solicitors for the opposing parties had agreed that the firm of Messrs Exley and Associates should be the registered surveyor to plot the boundary line. (I will call this firm "the Surveyor") Mr Crane, an employee of the Surveyor was the registered surveyor who purported to plot the boundary line in accordance with the first paragraph of the terms of settlement. He swore an affidavit dated 13 February 1987 which was read at the hearing before Waddell CJ in Eq. The account in the following two paragraphs is taken from his affidavit. In or about October 1985 the Surveyor received a letter from Mrs Stockton's solicitors. A copy was annexed to the affidavit. The letter set out the terms of settlement and asked the Surveyor to act as the independent surveyor in the matter. The letter also said that the solicitors for Mr and Mrs Castles had been asked to send their documents to the Surveyor. With the letter there was enclosed a list of documents and the documents themselves. The list of documents was in evidence before Waddell CJ in Eq but the documents themselves were not tendered before him. The list comprised the summons by which Mrs Stockton had begun the proceedings in the Equity Division and the affidavits filed on her behalf in those proceedings before the orders of 23 September 1985. Mr Crane filed the documents away until the Surveyor received correspondence from the solicitors for Mr and Mrs Castles On 2 December 1985 the Surveyor received a letter from the solicitors for Mr and Mrs Castles together with the enclosures noted in that letter. The letter was in evidence and said that it had been "agreed by both parties that their Solicitors would mutually agree as to the identity of a Surveyor to decide on the position of a boundary line between their homes, the cost of the Survey to be mutually borne by the parties neither of whom are to make any representations to yourself other than through their respective advisors." The letter then listed a number of documents enclosed with it. The list comprised some letters, the cross claim, the terms of settlement, a number of affidavits filed in the proceedings for Mr and Mrs Castles, a statutory declaration of Mrs Castles and a report of Mr Graham, Mr and Mrs Castles' surveyor. None of the letters, affidavits, statutory declaration or report listed in the letter was ten- dered in evidence before Waddell CJ in Eq. The letter ended by saying that the writer understood that the solicitors for Mrs Stockton had already forwarded copies of their documents to the surveyors, and asked the surveyors to "proceed to per- form a survey of the property." Mr Crane, having received the documentation from the two sides and having tried to digest it, consulted Mr Exley, a Registered Surveyor of 30 years standing and examined the plans of Mr Freeburn (the surveyor for Mrs Stockton) and Mr Graham "from a surveying point of view" and noted that there was no difference or disagreement as to measurements and that the only difference in disagreement was the respective definitions of the boundary between the properties. Mr Crane and Mr Exley then critically examined the written material and con- cluded that any field survey would not help towards a final determination of the boundary. They formed the opinion that a full field survey would only duplicate the two pre-existing plans at unnecessary cost. I will give Mr Crane's explanation of how he reached his conclusion about the boundary in the words of his affidavit: URJ CASTLES v STOCKTON (Priestley JA) 3 "Mr Exley and myself each independently reviewed the written material and each came to the con- clusion that there has been no fencing alongside house number 122 Lennox Street at least since 1963. We further concluded that the present position of the fences from Lennox Street to the front of house 122 and from the back of house Number 122 to the rear boundary has been in that location since the 1960's. It was therefore our decision that the present occupation of the house and fencing has been accepted for a con- siderable period of time and that the boundary line dividing the respective properties is as defined in the plan attached to Real Property Application 57438 as prepared by Mr P Freeburn, Surveyor, there being no encroachments by either property." In the last paragraph of his affidavit Mr Crane said: "The solicitor for the plaintiff has briefly explained to me the present dispute and I say that I understand "plot' to mean to draw a boundary or to determine a boundary. I do not believe that the word "plot* necessarily has connotations of physically re-surveying the ground. It is my belief that we did 'plot" the boundary line dividing the respective properties at numbers 120 and 122 Lennox Street Richmond, and identified any encroachments." Mr Crane was not cross examined. Nor was any evidence sought to be led on behalf of Mr and Mrs Castles either contradicting or qualifying what he said. None of his evidence was objected to. It simply remained unchallenged, and was the only evidence before the trial judge on the principal issue in the case. The only other evidence before Waddell CJ in Eq consisted of an affidavit from the solicitor for Mr and Mrs Castles, an affidavit from the solicitor for Mrs Stockton and the report of the Surveyor dated 11 February 1986. This report was addressed to the Supreme Court and, omitting formal parts, said: "Following on the Terms of Settlement filed in the Supreme Court on 23rd September 1985, this firm was appointed by the Solicitors for both the Plaintiff and Defendants to plot the boun- dary line dividing their respective properties at numbers 120 and 122 Lennox Street, Richmond and to identify any encroachments. We have considered the matter and we conclude that there has been no fencing alongside house No 122 Lennox Street at least since 1963. We further conclude that the present position of the fences from Lennox Street to the front of house No 122 and from the back of house No 122 to the rear boundary has been in that location since the 1960's. Therefore, the present occupation, of the house and fencing, has been accepted for a considerable period of time. It is our decision that the boundary line divi- ding the respective properties is as defined in the plan attached to Real Property Application 57438 as prepared by Mr Surveyor Freeburn. There are no encroachments by either property." The affidavit by the solicitor for Mr and Mrs Castles set out some of the facts which I have already recounted and gave some details of how the dissatisfaction of Mr and Mrs Castles with the Surveyor's report was communicated to the other side. The affidavit by the solicitor for Mrs Stockton also recounted events already narrated. It also shows that Mrs Stockton's Primary Application was reinstated following receipt of the report by the Surveyor, that a plan based on the boun- dary decided upon by the Surveyor was registered at the Land Titles Office on 4 April 1986, and that by 7 May 1986 the deeds had been received at the solicitors office. (Precisely what was meant by this was left obscure; no deeds were tendered.) 4 UNREPORTED JUDGMENTS On the face of the material tendered before Waddell CJ in Eq there was nothing to support the making of the order sought in the Notice of Motion, namely that the orders made on 23 September 1985 be set aside. This appears to have been recognised by counsel for Mr and Mrs Castles, because Waddell CJ in Eq recorded that during the course of the hearing Mr and Mrs Castles gave up their claim for such an order and instead sought relief which would require another surveyor to be appointed. The case for Mr and Mrs Castles both before Waddell CJ in Eq and this Court was that the Surveyor did not plot the boundary line between the two properties in accordance with the commission stated in paragraph 1 of the Terms of Settle- ment. A fundamental submission was that in order to comply with paragraph 1 the Surveyor had to use normal surveying methods and instruments to determine the boundary between the two properties from metes and bounds descriptions in Old System deeds, and that to adopt the method described by Mr Crane was not to carry out the requirements of the commission. No authority was cited to the Court nor was there any evidence to suggest that the word "plot" necessarily has the technical significance for surveying purposes contended for by counsel for Mr and Mrs Castles. In fact, the only evidence, that of Mr Crane, was quite to the contrary, and was unchallenged. On the evidence as it was left before Waddell CJ in Eq, I do not think it was possible for him to come to any other conclusion about the meaning of the word "plot" than that put forward by Mr Crane. This seems to me particularly to be so when the meaning advanced by him is one of the ordinary mean- ings of the word, and there is nothing in the evidence or otherwise in the materials before the Court to suggest that any other meaning should be attached to it in its context. It was further submitted for Mr and Mrs Castles that the Court should infer from the materials that it was their understanding and intention that the survey to be commissioned pursuant to paragraph | of the Terms of Settlement was one which as well as being a full instrumental survey should be independent entirely of surveys already made for either party. This submission involved two separate contentions. The first was that the Court should accept what it was said Mr and Mrs Castles understood to be the meaning of paragraph 1, and since that meaning was unfulfilled, appoint a new surveyor to do a survey in accordance with that meaning. For the reasons already given, I do not see how, on the evidence before Waddell CJ in Eq, either he or this Court could come to any other conclusion about the meaning of paragraph | than the one I have already indicated. Further, the only way in which effect could be given to what was essentially an assertion of mistake on the part of Mr and Mrs Castles would be by setting aside the terms of settle- ment, a remedy which was not sought. The other point involved in the submission is that materials of the kind that were put before the Surveyor, and upon which, certainly in part, the Surveyor's conclusion was based, should not have been put before the Surveyor. I do not think this submission can be sustained. Paragraph 5 of the Terms of Settlement clearly seems to contemplate that the parties' solicitors could make representations to the Surveyor, and Mr Crane's evidence shows that the solicitors on both sides, each to the knowledge of the other, put extensive mater- ials before the Surveyor, without objection. It seems to me, in light of paragraph 5, they were right to do so, and that the argument that it was wrong for either parties' solicitor to have done so is itself wrong. URJ CASTLES v STOCKTON (Clarke JA) 5 Finally on this aspect of the case, on the materials before Waddell CJ in Eq, I respectfully agree with his conclusion that there was nothing upon which the Court could base any view that the method adopted by the Surveyor was not a legitimate method of determining the boundary in accordance with proper surveying practice. At one point it was submitted that the Surveyor had not acted as an expert, but as an arbitrator, but I did not understand this contention to be pursued. In any event, in the circumstances of the case, I do not think the submission could be upheld. T have thus reached the conclusion that on the mater- ial before Waddell CJ in Eq he was right in deciding that the Surveyor had acted within his commission as contemplated by paragraph | of the Terms of Settlement and that the claim by Mr and Mrs Castles must therefore be dismissed. I have approached the matter on this basis because I think counsel for Mrs Stock- ton was right in submitting to this Court that in deciding the appeal no material should be considered beyond what was before Waddell CJ in Eq. No argument to the contrary of this position was addressed to us. However, I think I should say that if the position taken up by counsel for Mrs Stockton in this respect were wrong and this Court could or should have regard to the various matters of evidence which were put before the Surveyor as listed in the solicitors' letters, then the result would be the same. The Surveyor, upon receipt of the various materials, including the Terms of Settlement, made available by the two sides, could not, in my opinion, be criticised for approaching the matter in the way adopted. The Surveyor was not only not furnished by the parties with material upon which he could have followed the method of surveying which, according to the argu- ment for Mr and Mrs Castles, he should have adopted, but the surveys of Mr Freeburn and Mr Graham, which were forwarded, do not appear to have been prepared by that method either. In my opinion the appeal should be dismissed with costs. Clarke JA I agree with Priestley JA. The appeal should be dismissed with costs. Counsel for the Appellant: GGC WALKER Solicitors for the Appellant: HUNT and HUNT Counsel for the Respondent: P SHARP Solicitors for the Respondent: ROBILLIARD and ROBILLIARD