Pongrass v Tomara [2000] NSWSC 494

New South Wales Supreme Court

CITATION : Pongrass v Tomara [2000] NSWSC 494 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10093 of 2000 HEARING DATE(S) : 31 May 2000 JUDGMENT DATE : 31 May 2000

Nicholas Andru Pongrass (First Plaintiff) PARTIES : Leigh-Anne Clunes-Pongrass (Second Plaintiff) Tomara Holdings Pty Ltd (Defendant) JUDGMENT OF : Windeyer J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Peter Gould JUDICIAL OFFICER :

COUNSEL : A Ridley (Plaintiffs) R. Walker (Defendant) SOLICITORS : Colin Biggers & Paisley (Plaintiffs) Sutton & Co (Defendant) CATCHWORDS : APPEAL from magistrate - no reasons for decisions STATUTE - Dividing Fences Act - sufficient fence - contribution required based on half cost of sufficient fence Dividing Fences Act 1991 LEGISLATION CITED : Justices Act 1902, s102 Suitors' Fund Act 1951 DECISION : See paragraph 19

1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WINDEYER J

WEDNESDAY 31 MAY 2000

10093/00 NICOLAS ANDRU PONGRASS & ANOR v TOMARA HOLDINGS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is an appeal by way of Summons under s102 of the Justices Act 1902 from a decision of a magistrate Mr Gould given on 20 December 1999. 2 The proceedings between the parties in the Local Court were proceedings under the Dividing Fences Act 1991. Mr and Mrs Pongrass sought an order under that Act for contribution by the defendant company Tomara Holdings Pty Limited (Tomara), being one-half of the cost of a new brick fence which was proposed to be constructed on the boundary separating the premises of the plaintiff and the defendant. 3 On part of that boundary the Pongrass property is subject to a right of way 10 feet wide and 20 feet long in favour of the Tomara property. I will leave the measurements on the imperial scale because that is how they appear on the documents which are in evidence. 4 There had been a fence between the properties at an earlier time which had been removed by one, or other, of the parties, it does not matter which. It seems that that fence may not have been exactly on the common boundary, but that is no longer an issue in the proceedings before me. 5 Mr and Mrs Pongrass wished to have the defendant Tomara contribute one-half of the cost of a brick fence. Tomara argued that a sufficient dividing fence did not require that fence to be constructed of brick and that a paling fence would be sufficient. The learned magistrate acceded to that view. 6 After a hearing, which appears to have lasted over two days, the Magistrate ordered: that there be erected a six-foot paling fence containing openings to be erected of either treated Radiata pine or Northcoast hardwood; that Pongrass pay $600 towards the cost of the fence with Tomara to pay the balance; that the fence be constructed by Tomara and the work be completed within three months. He ordered that the new fence be erected upon the line of the old fence, whether or not that be on the common boundary. 7 The learned magistrate made certain findings of fact, all of which may not necessarily have been supported by the evidence. After making those findings, he proceeded directly to the making of the orders which I have set out without giving any reasons whatsoever for his making of those orders. 8 It is perfectly clear from the transcript of evidence that Tomara did not object to a brick dividing fence being erected. Its case was that it should not be required to pay one-half of the cost of such a fence, but that it should be required to pay only one-half of the cost which would be incurred if the dividing fence were constructed of timber. That is an order which the magistrate is entitled to make under the Dividing Fences Act. 9 It was never claimed that the dividing fence should be a paling fence. It was never suggested that the fence should be constructed by Tomara. The figure of $600 seems to have come from some evidence given by Ms Varientos, but, if it did come from that, then it referred to the total cost of the fence, not one-half of it, so that it is difficult to see any basis for the order requiring Pongrass to pay $600 towards the cost of the fence. 10 There was tendered in evidence before the magistrate a quotation from Maintek Pty Limited for the construction of a Western cedar paling fence together with a gate at a total cost of $4,216. It is perfectly clear that the magistrate took no account of that quotation, firstly, because of his order as to the $600 and, secondly, because his order was for a paling fence of treated Radiata pine or Northcoast hardwood, whereas the quotation was for a fence of Western red cedar. I am told by counsel that there is nothing in the transcript of evidence which refers to Radiata pine, or Northcoast hardwood, so how that decision was come to by the learned magistrate I am unable to determine. 11 It is perfectly clear, and is accepted by both parties, that in coming to the conclusions he did, apparently based not upon the evidence and not upon the issues before him, and in failing to give any reasons for coming to the conclusions that he did, the learned magistrate erred in law and his decision must be set aside. In fact, it is perfectly clear that there was no ground whatsoever for his making the orders that he did. 12 It has now been agreed between the parties before me that the dividing fence will be constructed in accordance with the drawings on Exhibit 15 before the learned magistrate, and I would propose to make the appropriate order for that on the basis that where on that plan there appears to be a gap shown in the line of the fencing that gap is to represent the gateway which would give to the Tomara interests access to the right of way area and that the western end of such gap is the western end of the 20-foot length of the right of way. 13 The other matter to be determined, therefore, is the contribution to the cost of construction of this fence, it being accepted that it will be constructed by Mr and Mrs Pongrass. The learned magistrate found that a timber fence would be satisfactory. There is no basis to interfere with that decision because there was evidence before the Magistrate which enabled him to come to that conclusion. The question then is what would be the cost of such a fence so that one-half of that cost should be paid by Tomara to Mr and Mrs Pongrass, they being responsible for the erection of the fence. There is no satisfactory evidence before me as to this, but the parties have agreed that there should be added together the cost, or the amount of the Maintek quotation plus the figure of $600 arrived at by the magistrate making a total of $4,816, that this figure should be halved so as to come to the mean of the two figures, bringing about a figure of $2,408, and that Tomara should pay one-half of that figure as its contribution towards the dividing fence, which is the brick dividing fence which it is now agreed will be constructed. That amount is $1,204. 14 The final question remaining for decision then is the question of the costs. 15 It is difficult to see how the proceedings could have lasted as long as they did before the learned magistrate, but it is clear that considerable costs have been incurred on issues of service and whether or not Tomara should be required to contribute one-half of the cost of a brick dividing fence. On that latter issue Tomara won. 16 On the remaining question of costs, no determination was made by the magistrate below. It appears to have been reserved. In any case the parties wish this matter to be determined by me rather than go back to the magistrate. 17 So far as I can ascertain from its submissions, Tomara never agreed to pay one-half of the total cost of a paling fence, because its claim was that the fence which had been taken down was in a reasonable condition. Tomara never put forward any cogent evidence as to the cost of a paling fence, which is really what it was required to do under the Act if it was to claim that a paling fence was a suitable fence. In those circumstances, it seems to me that the parties should bear their own costs of the proceedings before the magistrate. 18 So far as the costs here are concerned, the plaintiff has succeeded, and the orders must be set aside. There should be, therefore, an order that the defendant pay the plaintiffs' costs of these proceedings, but that it have a certificate under the Suitor's Fund Act 1951, if qualified, and I propose to make that order. 19 The orders are: (1) The orders of Magistrate Gould dated 20 December 1999 be set aside and in lieu thereof I make the following orders (a) Order as sought in paragraph 1 of the Summons with the additional words to be added after "Double Bay", "it being agreed that the gap shown on the southern side is the 8-foot access area where a gate will be constructed giving access to the defendant's right of way, the western end of that gap being the western end of the right of way." (b) Order sought in paragraph (2) of the summons substituting "three months" for "six months". (2) Order that the defendant pay to the plaintiff the agreed sum of $1,204 towards the cost of the said brick dividing wall, such payment to be made within 28 days.